Freedom of Speech

1. Freedom of Speech

2. Introductory Comments • Does “No Law” really mean “No Law?” • NO: According to the Court, there are always instances when government may suppress speech. • Only Justices Black and Douglas really took a hardcore literal interpretation.

3. The Development of Legal Standards: • We will begin with a discussion of standards for deciding when you have this right. • Do we want the Court to be the arbiter of such important decisions during times of crisis? • Would the Court decide differently when we are not in a time of crisis?

4. The First Cases: World War I • Congress passes the Espionage Act (1917). • Congress passes Sedition Act (1918). • These two laws form the base of the conflict in Schenck v. U.S. (1919).

5. Schenk v. U.S. (1919) • Does the Espionage Act violate the First Amendment guarantee of free speech? • No. 9-0 vote. • It is clear that the intended effect of the pamphlet was to influence people to obstruct the draft. It is therefore a clear and present danger.

6. Keys to Schenk: CLEAR AND PRESENT DANGER • Again, a liberal standard that reaches a conservative outcome. The Court reaches similar conclusions in Frohwerk(1919)and Debs(1919). • General rule: There must be a clear link between what is being said and the evil at hand. • Is it a good test? • Within a year the Court reconsiders.

7. Abrams v. U.S. (1919) • Was Abrams’s right to free speech violated when the government arrested him for distributing antiwar pamphlets? • No. 7-2 vote. • The avowed purpose of the leaflets was to throw the country into state of revolution and to thereby frustrate the military program of the government. As such, we must uphold the convictions.

8. Abrams: BAD TENDENCY TEST • Do the words have a tendency to bring about an evil? • This clearly dilutes the clear and present danger test. • Note that this case was decided LESS THAN A YEAR after Schenck. • Reiterated in Gitlow (1925).

9. Gitlow v. New York (1925) • Does the state criminal anarchy law violate the First Amendment right to free speech through the due process clause of the Fourteenth Amendment? • No. 7-2 vote. • The Manifesto here advocates and urges mass action which shall foment industrial disturbances and ultimately destroy parliamentary government.

10. Bad Tendency Test Continues • Whitney v. California (1927): Speech inimical to public welfare and that may incite crime is not protected speech. • Note: Brandeis and Holmes: BEHAVIOR KEY.

11. Implications of Gitlow and Whitney • The First Amendment was interpreted as being designed to promote the common good, not to protect individual speech. • The Court was clearly swept up in the nationalist fervor of the 1920s. • Q: What should the test be?

12. The 1930s: Leading to Preferred Freedoms • Stromberg: Laws that ban certain speech must not be overly vague. The signal is that they are more sympathetic to First Amendment claims. • DeJonge: Court overturns Whitney. Reverts to the CLEAR AND PRESENT DANGER TEST.

13. Carolene Products(1938): Preferred Freedoms • The usual presumption that laws are constitutional is waived if a law appears to conflict with the Bill of Rights. • The judiciary has a special responsibility to defend these rights – including freedom of expression. • The Court has a special role to protect the rights of minorities and unpopular groups.

14. Using Preferred Freedoms • Schneider (1939): Struck law that restricted solicitation as a burden on free speech. • Thomas v. Collins (1945): Mix of preferred freedoms and clear and present danger. Ultimately, prior restraint is a violation of free speech.

15. Dennis v. U.S. (1951) • Does Smith Act violate the First Amendment guarantee of free speech? • No. 6-2 vote. • We must determine in each case whether the gravity of the evil, discounted by its improbability, justifies the invasion of free speech necessary to avoid the danger. We adopt this statement as the rule.

16. Clear and Probable Danger • Dennis v. U.S. (1951) • Gravity of evil DISCOUNTED by its improbability justifies invasion of freedom of speech. • What do the dissents set up? • This new test REALLY fueled McCarthyism.

17. The Warren Court Era • Pennsylvania v. Nelson (1956): The federal government has the sole control over subversive activity. • Yates v. U.S. (1957): Court modified the Dennis standard. It differentiates between advocacy and abstract doctrine. • The Court DID NOT fully go back to preferred freedoms. • Court ends the McCarthy era with Brandenburg.

18. Brandenburg v. Ohio (1969) • Does Ohio syndicalism law violate First Amendment guarantee of free speech? • Yes. 8-0 vote. • We cannot sustain the Ohio law. It punishes persons who advocate or teach violence of accomplishing political reform. The judge did not refine the definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

19. Overview of Free Speech Standards: Going Full Circle • Clear and Present Danger (Schenck) • Bad Tendency (Abrams and Gitlow) • Clear and Present Danger (DeJonge) • Preferred Freedoms (Carolene Products) • Preferred Freedoms/Clear and Present Danger (Thomas v. Collins) • Clear and Probable Danger (Kovacs and Dennis) • Imminent Lawless Action (Brandenburg)

20. The Regulation of Speech • Symbolic speech • Public forums • Hate speech • The right not to speak • Commercial speech • Freedom of association

21. Symbolic Speech • Thornhill (1940): Picketing is protected. • Milk Wagon Drivers Union (1941): Regulation of picketing is okay (violence is the key). • Question: Why are these cases so difficult? • U.S. v. O’Brien (1968). • Tinker v. Des Moines (1969).

22. U.S. v. O’Brien (1968) • Does the antidraft portion of the Selective Service Act violate the First Amendment of the Constitution? • No. 7-1 vote. • We cannot accept the view that a limitless variety of conduct will be considered speech, whenever the person intends to express an idea. It does not follow that the destruction of draft cards is a constitutionally protected activity.

23. Tinker v. Des Moines (1969) • Is the wearing of armbands by public school students during the school day a form of protected speech under the First Amendment? • Yes. 7-2 vote. • The problem in this case lies in the area where students in the exercise of their speech rights collide with school rules. While the school officials sought to punish silent, passive, expression, there is no indication that the work of the schools or any class was disrupted.

24. Symbolic Speech • Street v. New York (1969): Used preferred freedoms doctrine, but NO majority. • Spence v. Washington (1974): Equated the speech here with the Tinkers’ nonviolent expression. • Texas v. Johnson (1989). • Cary v. U.S. (1990): Violence is the key!

25. Texas v. Johnson (1989) • Does a state law that prohibits the burning of the American flag violate the First Amendment freedom of expression? • Yes. 5-4 vote. • The bedrock principle underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

26. Pure Speech and Public Forums • Q: Why is public speech different from private speech or speech in a limited forum? • A: Speech might threaten order and lead to violence. • The key is to look at the effect of speech.

27. General Public Forum Issues • Edwards v. S.C. (1963): Protesting nonviolently on state capitol grounds is protected. • Cox v. Louisiana I and II (1965): Violence is the key to regulation. BUT, the state has an interest in protecting their judicial systems. • Adderly v. Florida (1966): Reasonable regulations of WHERE protests may take place are fine. • Clark v. Community for Creative Non-Violence (1984): May regulate time of protests.

28. Chaplinsky v. New Hampshire (1942) • Does a state law that prohibits the use of offensive words to someone on the street violate the First Amendment right to freedom of speech? • No. 9-0 vote. • We are unable to say that the limited nature of the statute . . . contravenes the constitutional right of free expression. It is . . . narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.

29. Public Forums: Application of Fighting Words Doctrine • Terminello v. Chicago (1949): Speech is protected unless there is a clear and present danger. • Feiner v. New York (1951): Speech that tends to incite violence may be stopped. • Both cases lead to Cohen v. California (1971).

30. Cohen v. California (1971) • Does the First Amendment protect a person’s right to wear a political statement on his clothing that includes obscene language? • Yes. 5-4 vote. • The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. The air may be filled sometimes with verbal cacophony, and this is a strength not a weakness.

31. Public Forum and Abortion Protests • Madsen v. Women’s Health Center Inc. (1994): • Upheld an injunction against protests within 36 feet of a clinic. • Upheld noise restrictions. • Struck down ban on protests within 300 feet of clinics. • Test: Does the provision of an injunction burden no more speech than is necessary to serve a legitimate governmental interest?

32. Hill v. Colorado (2000) • Does a law that prohibits someone from approaching another person for the purposes of protest, education, or counseling violate the right to free speech in the First and Fourteenth Amendments? • No. 6-3 vote. • The regulation here is simply a content neutral time, place, and manner regulation. The standard for this type of regulation is whether the government adopted it because of disagreement with the message it conveys.

33. Hate Speech • Speech that arises from “hostile, discriminatory, and prejudicial attitudes toward another person’s innate characteristics: sex, race, ethnicity, religion, sexual orientation.” • Usually this is not political speech in the traditional sense. Its central aim is hostility. • Tension is between free speech and equal protection.

34. Hate Speech • Skokie (1977): Court allowed Nazis to march, but it did not deal explicitly with hate speech. • First real case: R.A.V. (1992).

35. R.A.V. v. St. Paul (1992) • Is content discrimination reasonably necessary to achieve the compelling interest of decreasing bias-motivated crime? • No. 9-0 vote. • We find the St. Paul statute facially unconstitutional. St. Paul is simply not allowed to prohibit speakers who express views on disfavored subjects.

36. Wisconsin v. Mitchell (1993) • Does a law that enhances penalties for crimes based on hate violate the constitutional right to free speech? • No. 9-0 vote. • The statute in this case is directed at conduct unprotected by the First Amendment. Indeed, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm.

37. Hate Speech • How does R.A.V. compare with Mitchell? • Black v. Virginia(2001).

38. The Right Not to Speak • Gobitis (1940): Upheld flag salutes. • Barnette (1943): Deals again with flag salutes.

39. West Virginia v. Barnette (1943) • May a state, consistent with the First Amendment, force students to salute the American flag and recite the Pledge of Allegiance? • No. 6-3 vote. • The Fourteenth Amendment, as now applied to the states, protects the citizen against the state itself and all of its creatures – boards of education not excepted. None who acts under color of law is beyond reach of the Constitution.

40. The Right Not to Speak • Wooley v. Maynard (1977): License plate slogans. • University of Wisconsin v. Southworth (2000): Universities must use student funds in a viewpoint neutral manner. • Rumsfeld (2006).

41. Rumsfeld v. FAIR Inc. (2005) • May Congress withhold funds from colleges and universities who deny military recruiters access to their campuses? • Yes. 8-0 vote. • Under this statute, law schools remain free to express whatever views they have on the military’s employment policy. It affects only what law schools must do, not what they may or may not say.

42. Commercial Speech • Usually seen as closer to commerce than to speech. • Courts have allowed greater regulation of commercial speech as compared to political speech.

43. Commercial Speech • Bigelow v. Virginia (1975): Extension of First Amendment to commercial speech, but with limitations (although ill defined). • Virginia State Board of Pharmacy (1976): Economic nature of ads does not take away First Amendment protection. • Bates(1977): Attorney advertisements.

44. Bates v. State Bar of Arizona (1977) • May lawyers constitutionally advertise the prices at which certain routine services will be performed? • Yes. 5-4 vote. • We find that the postulated connection between advertising and the erosion of professionalism is severely strained.

45. Commercial Speech • Linmark (1977): Struck ban on For Sale signs. • Central Hudson (1940): Test for commercial speech protection.

46. Central Hudson v. PSC of New York (1980) • Does the Public Service Commission’s regulation on advertising violate the First and Fourth Amendments because it completely bans promotional advertising by an electrical utility? • Yes. 8-1 vote. • In terms of the relationship between the state’s interest at promoting fairness and efficiency, and the advertising ban, the arguments for the interest do not justify the restriction on protected speech. Such conditional and remote eventualities put forth by the state simply cannot justify silencing appellant’s promotional advertising.

47. Freedom of Association • Roberts (1984): First Amendment does not apply equally to all private organizations. • Hurley (1995): Allowing gay rights group to march significantly burdens expression of parade organizers. • Dale (2000): Boy Scouts case.

48. Boy Scouts of America v. Dale (2000) • Does the First Amendment right to association allow the Boy Scouts of America to forbid membership to homosexuals? • Yes. 5-4 vote. • The interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts of America’s right to freedom of expressive association. The First Amendment prohibits the state from imposing such a requirement through the application of its public accommodation law.