First Amendment RightsThis power point includes

Freedom of Speech, Press, Assembly & Petition!

Freedom of Speech

Freedom of Speech Seems like a dumb question, but why is it so important

to a democratic government? Ability to debate actions and policies of elected officials Ability to be informed about current issues

Soooo…..generally, democratic nations allow free speech that promotes even offensive ideas because suppressing speech is more dangerous to society.

Seems simple, right?

But what IS speech?

Principles of Free Speech:

Types of Speech 1. Pure Speech

Only spoken words (debates, public meetings) Greatest protection under the Bill of Rights

2. Speech Plus Speech combined with actions (demonstrations / picketing) Speech portion is generally protected but actions may be

regulated

3. Symbolic Speech Conduct that conveys a message in itself without spoken

words Some forms are protected, some not…

Principles of Speech:Types of Speech

3. Symbolic Speech, cont… Burning Draft cards – not symbolic speech

Necessary to government purpose of having an army Flag Burning – is symbolic speech

Bedrock Principle: the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Principles of Free Speech:

Over breadth and Vagueness

Restriction can’t be too vague If so, it has a tendency to stifle free expression Example: case concerning limiting free speech in an

airport terminal but was struck down b/c it did not specify an area and could prohibit talking in general.

Principles of Free Speech:

Right Not to Speak Can force you to be silent but can’t force you to

speak Pledge of allegiance, for example

Principles of Free SpeechSpeech in Campaigns

Supreme Court has ruled that “money is speech.” Campaign laws that restrict donations are legal Campaign laws that restrict spending are NOT legal

Principles of Speech:Least Restrictive Means

No law may restrict / limit freedom of speech if there is some other way to handle the problem.

Limits on Free Speech:Public Forums

Government cannot deny free speech rights in a public form (park / street) but can regulate the time, manner, and place (where, how, when). Has to be content neutral in its regulation of speech Can restrict freedom of speech, if content neutral, if

the action interferes with another constitutional right (like abortion clinics).

Limits on Free Speech:Obscenity

Not protected – anything that depicts sex or nudity in a way that violates society’s standards of decency. Something is obscene if is has 3 characteristics: An average person, applying community standards, finds that it

has an obscene interest in sex. The work depicts /describes, in a patently offensive way, types

of sexual conduct prohibited by law. The work, taken as a whole, lacks serious literary, artistic,

political, or scientific value.

Notes: It’s OK to possess obscene materials for private use. Government can forbid sending obscene materials via interstate

commerce.

Most strict with child pornography.

Limits on Free Speech:Defamation

Damaging another person’s reputation through false information (slander = spoken; libel = written) The truth is always a complete defense against

defamation Accidental speech with no malice intended is OK Privileged speakers protected – members of Congress

and parents

Limits on Free Speech:Fighting Words

1st Amendment does not protect abusive or insulting language Has a direct tendency to cause acts of violence More like a verbal assault than an exchange of

information or ideas

Hate Speech – the argument protecting this is that it would violate freedom of speech by deterring what is not politically correct. You can’t punish speech that could be regulated purely

on the basis of content.

Limits on Free Speech:Commercial Speech

Government can regulate false advertising.

Government can restrict advertising on products it has the power to outlaw Alcohol Tobacco

Limits on Free Speech:Speech in Special Places Restrict it in military bases, prisons, schools

Schools: Free speech can be limited if student actions

materially disrupt the school’s educational purpose (We’ll look at Tinker v. Des Moines)

The rights of students aren’t the same as adults (We’ll look at Bethel School District case)

Can censor school sponsored expression activities (newspaper) if it relates to a legitimate educational concern.

Limits on Free Speech:Unlawful Action

When does speech advocating unlawful action become more than free speech?

Speech must directly incite specific and immediate unlawful acts in order to be prohibited. 1. Clear and Present Danger – can punish when it creates an

immediate threat of criminal action or danger. Crowded movie theater scenario

2. Advocacy of Abstract Doctrine – forbidden to advocate the actual violent overthrow of the government (rather than the concept of advocacy of government overthrow).

3. Imminent Action – Speech cannot be punished even when it advocates illegal action unless it is “directed to inciting or producing imminent lawless action.” “Let’s overthrow the government” – OK “Let’s blow up the courthouse tonight at 9 pm” – not OK

Bottom Line: Limiting Speech

Freedom of speech is highly protected so a law that restricts it must pass all the following tests to be constitutional. The law must: Be clearly defined Limit only unprotected speech Limit speech as little as possible Limit speech for reasons other than just its content

Tinker v. Des Moines (1965)

Now that you know what you know…how did the Supreme Court decide this case and WHY?

In a 7-2 decision, the Court found: The armbands were “pure speech” and the school’s action

was unconstitutional. Justice Fortas wrote, “It can hardly be argued that either

students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate…”

The school had NOT demonstrated that the armbands caused a “material and substantial interference with schoolwork or discipline” and had merely acted to avoid the “discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Tinker v. Des Moines (1965)

Court decision, cont… The school district had NOT banned all political

symbols but had “singled out” the armbands for prohibition Allowed campaign buttons, etc. Therefore, the limiting of free speech was NOT content

netural

Tinker case remains a landmark in upholding the rights of students in schools to express their views in a peaceful and orderly way.

Now apply what you have learned…

Now read the court cases dealing with school issues and free speech…use what you have learned to figure out how the Supreme Court may have decided these cases.

Freedom of Press

Freedom of Press Sometimes lumped in with freedom of speech and

just called freedom of expression.

One concept you should know is the idea of prior restraint: Government action that seeks to PREVENT

materials from being published. Alternative? Allow the expression to take place and

take appropriate action afterward if found to violate the law, regulations, or other rules.

Prior restraint prevents censored material from being heard or distributed at all.

Freedom of Press:Prior Restraint

Near v. Minnesota (1931) Jay Near’s newspaper, The Saturday Press, a small local paper, ran

countless exposes of Minneapolis’s elected officials’ alleged corruption.

Silenced by a Minnesota Gag Law (Public Nuisance Law). Critics claimed Near was trying to extort money by threatening to

publish attacks on officials and others. Court held that the state had no power to limit Near’s freedom of

press and found the gag law to be unconstitutional because it was “prior restraint.”

Ruling 5-4 (4 of the judges found the nature of the articles to be unworthy of protection.

Gave newspapers a clearly established freedom to criticize public officials without fear of retribution, even when charges made by the papers could not be proven in court. (can still be punished through libel laws after the fact!)

Exceptions to Prior Restraint

Press can be censored in the cases of: National security Control of obscenity

Freedoms of Assembly and Petition

Assembly and Petition The government is prohibited from denying people

the right “peaceably to assemble, and to petition the Government for a redress of grievances.”

People have the right to meet together and express their views peacefully We can share ideas with each other and make opinions

known to government through initiatives (petitions) designed to force government to consider an issue or allow a vote.

DeJonge v. Oregon (1937)

Dirk DeJonge attended a meeting of the American Communist Party but Oregon state law prohibited participation in meetings by organizations that called for revolution against U.S. government. DeJonge argued the meeting was peaceful, didn’t

discuss any illegal actions and was protected by First Amendment.

Court agreed.

Edwards v. South Carolina (1963)

Group of 187 African American students in South Carolina who gathered to protest racial injustice. Assembly was peaceful but local police told them to

leave the area, fearing the crowd gathering to watch might become violent.

Students were arrested when they did not leave. Court ruled that if an assembly is peaceful it cannot be

stopped simply because bystanders are disorderly.

Limits on Assembly and Petition

Cannot limit right of assembly and petition based on protesters’ points of view. Extreme cases: protesters encouraging others to commit

violent acts.

Can limit in these ways: Reasonable restrictions on time, manner, and place

Require a permit, for example Denied right to make excessive noise Kept off of private property Invading privacy of others

Whatever the limitation, it must serve a clear and valid purpose, be applied evenly and without regard to the content of the demonstrators’ message.

Freedom of Association? Phrase doesn’t appear in Constitution

Supreme Court has determined that freedoms guaranteed by First Amendment DO establish this right, though… The right to join with others, share ideas, and work

toward a common purpose.

NAACP v. Alabama (1958)

State of Alabama tried to force the National Association for the Advancement of Colored People to give the state a list of its members. NAACP feared that publicizing this would lead to

violence and other harmful consequences.

Supreme Court sided with NAACP in unanimous ruling saying, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the…freedom of speech.”