Civil Liberty Key Concepts — Free Speech
Free speech:
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Schenck v. US (clear and present danger test: if speech presents a “clear and present danger” of bringing
about evils that Congress has the right to prevent, the speech is not protected. This would include, for
instance, seditious speech or speech designed to obstruct the draft.
•
Gitlow v. US (incorporated 1st Amendment free speech into 14th Amendment; language causing a tendency
to result in dangerous activity can be prohibited)
o Incorporation doctrine: Because the Bill of Rights applies just to the Federal gov’t, a question
remained whether states could take away someone’s right of free speech, religion, etc. via a state
law. The short answer is no, thanks to the 14th Amendment, which prevents STATES from
depriving someone of “life, liberty, or property” without due process of law. USSC, through a
series of cases, has said that most of the rights protected by the Bill of Rights are “liberties”
protected by the 14th Amendment and thus are protected against state action.
•
Reasonable time, place, and manner restrictions can be imposed on speech. Thus, for instance, a town may
insist that someone obtain a permit to parade and confine that parade to a specific location and time.
•
Chaplinksy v. New Hampshire (two-tier theory of 1st Amendment; tier 1: constitutionally protected
speech; tier 1: unprotected speech, which includes the lewd, obscene, profane, and libelous speech as well
as fighting words)
•
Defamation (which includes libel and slander): Not protected.
o NYT v. Sullivan (public figure must prove malice – i.e., knowledge of falsehood or reckless
disregard of the truth)
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Prior restraint. Preventing someone from saying/publishing something in advance. Usually not
permitted.
o Situations in which prior restraint is acceptable
▪ Threats to national security. Near v. Minnesota (can’t ban defamatory material; can ban
speech that threatens national security, speech that incites violence, obscene speech, and
some school speech)
•
NYT v. US (the Pentagon Papers case; couldn’t restrain publication of material
embarrassing to the gov’t)
▪ Obscene speech
•
Miller v. California (3-part test for obscenity) – appeals to prurient interest,
patently offensive, lacks any serious artistic, scientific, political value
•
Reno v. ACLU (struck down attempt to regulate obscenity over the Internet)
▪ Hate speech, IF the speech is intended to incite imminent lawless action and is likely to
lead to it (Brandenburg v. Ohio); related to that: “true threats” — language is not
protected if it is a true threat to harm someone.)
▪ School speech
•
Morse v. Frederick (the “bong hits for Jesus” case; can restrain speech that
advocates illegal drug use)
•
Tinker v. Des Moines School District (black armbands ok; no substantial threat
of disruption)
•
Bethel School District v. Fraser (graduation speech full of sexual innuendo;
okay to suspend student for giving speech that was offensive to the prevailing
community standards)
•
Hazelwood v. Kuhlmeier (journalism case; can restrain publication of article that
revealed identity of students)
•
Symbolic speech
o US v. O’Brien (can’t burn draft cards; we have the right to draft)
o Texas v. Johnson (can burn flag)
o Virginia v. Black (can’t burn cross as an act of intimidation)
•
Commercial speech
o Citizens United v. FEC (corporations can spend money on political advocacy)
o Can limit corporation’s speech if limit is narrowly tailored and serves legitimate public interest
(e.g., ban on alcohol ads)