Unit 3.3 The First Amendment: Freedom of Speech

What is an obscenity?

Lewd or sexual art or publications. Although the Court has struggled to define what constitutes obscenity, it has upheld restrictions on materials that "to the average person applying contemporary community standards" depict offensive or sexual conduct and lack literary or artistic merit.

What are the "time, place, manner restrictions"?

Limits that government can impose on the occasion, location, and type of individual expression in some circumstances. Limits to freedom of expression based on when, where, and how individuals or organizations express opinions. For example, a city may require an organization to obtain a permit in order to conduct a public protest.

Is the freedom of speech absolute?

No, it is subject to judgement base upon circumstances. (time, place, and manner)

If New York passes a law banning groups from staging protests in major highways during rush hour traffic, is it a violation of citizens First Amendment rights?

No; the Supreme Court has ruled that the government can place reasonable restrictions on the time, place, and manner of protected speech.

If a group of protesters is arrested after staging a sit-in on the governor's front lawn to protest a Voter ID law, is it an infringement on their freedom of speech?

No; the Supreme Court has ruled that the government can place reasonable restrictions on the time, place, and manner of protected speech. These restrictions cannot reference the content of the protected speech and must also be tailored to meet a specific government interest.

What is symbolic speech?

Nonverbal forms of speech protected by the First Amendment, such as picketing, wearing armbands, displaying signs, or engaging in acts of symbolic protest such as flag burning.

Review Essential Knowledge for this section (1)

SCOTUS has held that symbolic speech is protected by the 1st amendment demonstrated by Tinker v. Des Moines Independent School District (1969)

"The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." -Justice Oliver Wendell Holmes Jr. What case relates most to this quote?

Schenck v. United States

What SCOTUS cases relates to the image?

Schenck v. United States

Snyder v. Phelps (2011)

Speech on a public sidewalk, about a public issue, is protected, even if the speech is found to be "outrageous" and causes emotional distress. Helped to affirm that hate speech IS constitutional.

Based on previous rulings, give an example of a scenario that would most likely violate the freedom of speech clause of the First Amendment?

A public school district bans students from wearing t-shirts supporting presidential candidates before an election *answers will vary*

Review Essential Knowledge for this section (2)

Efforts to balance social order and individual freedom are reflected in interpretations of the 1st Amendment that limit speech including: -Time, place, and manner restrictions -Defamatory, offensive, and obscene statements or gestures -"Clear and present danger" restriction as established in Schenck v. US (1919)

Schenck v. US (1919)

FREEDOM OF SPEECH -Clear and Present danger test -The 1st amendment doesn't protect speech that creates a dangerous/hazardous environment; like screaming "fire" in a movie theater without there being any fire Upheld the conviction of a socialist who had urged young men to resist the draft during WWI. Justice Holmes declared that government can limit speech if the speech provokes a "clear and present danger" of substantive evils.

Tinker v. Des Moines (1969)

FREEDOM OF SPEECH -Students nor Staff shed their constitutional rights at the door of a school, specifically their right to practice their freedom of speech (which can be done verbally or specifically in this case symbolically/visually/I-cant-find-the-word-to-describe-it-but-dont-judge-me). Basically they said political speech is permissible in school especially on the grounds that it is NOT a distraction and does not cause conflict with the learning environment est. by the educational system. Students in an Iowa school were suspended for wearing black armbands to protest the Vietnam war. Ruled that this suspension was unconstitutional, and that public school students do not "shed their constitutional rights at the schoolhouse door."

What does "clear and present danger" mean?

Freedom of speech unless what you say is harmful Formulated during the 1919 case Schenck v. United States, the "clear and present danger" test permitted the government to punish speech likely to bring about evils that Congress had a right to prevent, such as stirring up anti-war sentiment. Since the 1960s, the Supreme Court has replaced the "clear and present danger" test with the "direct incitement" test, which says that the government can only restrict speech when it's likely to result in imminent lawless action, such as inciting mob violence.

Case Background: Tinker v. Des Moines

In 1965, Iowa teenagers Mary Beth Tinker, her brother John, and their friend Christopher Eckhardt decided to stage a peaceful protest of the Vietnam War by wearing black armbands to their public schools. School officials announced that students who wore armbands had to remove them or face suspension. The Tinker siblings and Eckhardt refused to remove their armbands, and the district suspended them until their protest ended. Their parents filed suit against the school district, claiming that the school had violated the students' free speech rights. Lower courts upheld the school district's decision as a necessary one to maintain discipline, so the families appealed to the Supreme Court for a ruling. In 1969, the Supreme Court heard the case, Tinker v. Des Moines Independent Community School District. One important aspect of the Tinker case was that the students' protest did not take the form of written or spoken expression, but instead used a symbol: black armbands. Was "symbolic speech" protected by the First Amendment?

What type of speech is protected?

The Supreme Court has supported the free speech rights of individuals engaged in protest, including nonverbal "symbolic speech." But freedom of speech is not absolute: the Court has upheld restrictions on defamatory and obscene speech, as well as speech that incites violence or lawbreaking. Like mentioned previously, instances of speech are all circumstantial.

Case Background: Schenck v. US

The United States entered World War I on the side of the Allies in 1917, after several years of maintaining its neutrality. President Woodrow Wilson had campaigned for reelection in 1916 on the slogan "He Kept Us Out of War." This abrupt change in policy meant there were many Americans who disagreed with the decision to go to war. As part of the war effort, the US government attempted to quell dissent. For example, Congress passed the Espionage Act of 1917, which outlawed interfering with military operations or recruitment, as well as supporting US enemies during wartime. Although it has been altered many times over the years, the Espionage Act is still in force today. In this climate, socialist antiwar activists Charles Schenck and Elizabeth Baer mailed 15,000 fliers urging men to resist the military draft through peaceful means, such as petitioning for the repeal of the conscription law. They argued that the draft was a violation of the Thirteenth Amendment's prohibition of involuntary servitude. Schenck and Baer were convicted under the Espionage Act for interfering with military recruitment. They appealed to the Supreme Court on the grounds that the Espionage Act violated their First Amendment right to freedom of speech.

Define: Defamation

The act of damaging someone's reputation by making false statements. Defamation through a printed medium is called libel, while spoken defamation is called slander.

What is "hate speech"?

Written or spoken communication that belittles a group based on its characteristics, such as race, gender, or sexual orientation.