Objective: students will gain a very basic introduction into the history and limits on freedom of speech in the United States

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Lecture: Freedom of Speech
Objective: students will gain a very basic introduction into the history and limits on freedom of speech in the United States.
First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Discussion: What’s the purpose of the First Amendment? Why is it important to have limits on our freedom of speech? What are some of these restrictions you already know about?
Main limitations:

I.Political Heresy

    1. sedition – expression that is critical of the government or its agents

    2. “Clear and Present Danger” Schenk v. US (1919). Distribution of anti-draft leaflet. Conviction upheld. Quote: “The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force…The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” –Justice Holmes

    3. 1917, US Congress made it illegal to threaten the life of the President. That law has been amended to include all in succession to the Presidency (VP, Speaker of the House, President Pro-tem)

    4. 1943, Supreme Court rules that the Barnette children of West VA—Jehovah’s Witnesses—who did not believe in pledging allegiance to the flag of any government—could not be compelled to pledge loyalty to the US by way of a flag salute. The court said, “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.” The court added, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Discuss.


    1. Def’n: “expression attacking one’s reputation or character.”

    2. slander – spoken

    3. libel – written

    4. Falwellt v Hustler Magazine.

III.Provocation to Anger and Words that Wound

    1. Fighting words & Chaplinsky (NH, religion, racketeer/fascist)

    2. Cohen’s jacket (1968), LA County

    3. Campus speech/hate speech

IV.Prior Restraint

    1. defined – “the censoring of a message before it is communicated”

    2. permits to speak

V.Time, Place, & Manner

    1. Concerns the use of public places for speech purposes. Davis v Massachusetts (1897) found that because the government held legal title to parks, streets, and similar public places, it could control those places as it saw fit.

    2. Huge discussion in the courts ensued, overturned in 1939 Hague v. CIO, in which the Court ruled that the Constitution required that streets, parks, and other similar places be open for “assembly, communicating thought between citizens, and discussing public questions.” Such use may be regulated, but not prohibited.

    3. Regulations must be specific.

VI.Institutional Restraints (Military, Schools, Prisons)

    1. Schools –

      1. Tinker v Des Moines Independent Community School District (1969). Black armbands. Students attending school have basic free speech rights that can only be abridged for good reason, such as to prevent disruption of the educational enterprise. Quote: “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of the freedom of speech.”

      2. Hazelwood School District v Kuhlmeier (1988). Quote: “we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” School authorities may exercise control over student expression that occurs in school-sponsored programs or activities provided the restriction meets two standards: 1) it must have a valid educational purpose, and 2) it must be reasonable to achieve the purpose.

      3. Books may be removed from the school’s library if the reasons for removing the book are made clear and are within constitutional constraints.

    2. Military – restrictions are different for military members than for civilians.

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