Judicial Approaches to the First Amendment

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Freedom of Expression

Judicial Approaches to the First Amendment

Clear and Present Danger Test

  • Schenck v. U.S (1919) clear and present danger to bring about evils that Congress has right to prevent

Bad Tendency Test

  • Abrams v. U.S. (1919) speech that has “tendency to bring about something evil”

  • Gitlow v. U.S. (1925) applied to states as a “fundamental freedom”

  • Standard utilized in Whitney v. California (1927)

Bad Tendency Test Reconsidered

  • Stromberg v. California (1931) upholds raising of red flag

  • DeJonge v. Oregon (1937) upholds peaceable assembly, CPD test used somewhat

Preferred Freedoms

  • U.S. v. Carolene Products (1938) Footnote Four implies that speech is among the preferred freedoms that are protected

  • Schneider v. New Jersey (1939) Court articulates a preferred freedoms approach

  • Thomas v. Collins (1945) upholds speech using preferred freedoms doctrine, also uses CPD test

Ad Hoc Balancing

  • American Communication Assoc. v. Douds (1950) rejects preferred freedoms approach

Clear and Probable Danger

  • Dennis v. U.S. (1951) danger need not be proximate


Likely to Incite Imminent Lawless Action

  • Brandenburg v. Ohio (1969)

Guiding Principles of Freedom of Expression Jurisprudence

  • Conditions that can trigger valid regulation: violence, property damage, criminal speech, encroaching on the rights of others, burdens on government function, trespass, time, place and manner restrictions.

  • Restraints on government power: appropriate purpose, narrow construction/overbreadth, vagueness, chilling effect, prior restraint.

  • Categories of unprotected speech (or speech with limited protection): libel, offensive speech, obscenity, fighting words, commercial speech

Symbolic Speech

  • U.S. v. O’Brien (1969) upholds conviction for burning draft cards

  • Texas v. Johnson (1989) protects flag burning as symbolic speech

Speech in Public Forums

  • Chaplinsky v. New Hampshire (1942) can regulate offensive speech and “fighting words”

  • Ward v. Rock Against Racism (1989) can place restrictions on public gatherings as long as they are content neutral and narrowly tailored

Student Speech

  • Tinker v. Des Moines (1969) protects “black arm bands,” student have constitutional protections

  • Bethel School Dist. No. 203 v. Fraser (1986) upholds some limitations on manner of student speech appropriate to classroom or student assembly

  • Morse v. Frederick (2007) limits application of Tinker

Offensive and Hateful Speech

    • National Socialist Party v. Skokie (1977) prohibits protest injunction

    • R.A.V. v. City of St. Paul (1992) strikes hate speech law

    • Wisconsin v. Mitchell (1993) upholds sentence enhancements for hate crimes

    • Snyder v. Phelps (2011) 1st Amendment protects individuals protesting a matter of public concern from civil tort claim of intentional emotional distress

The Right Not to Speak

  • Minersville School District v. Gobitis (1940) upholds flag salute law on religion basis

  • West Virginia Bd. of Ed. v. Barnette (1943) strikes flag salute law on speech and religion grounds

  • Wooley v. Maynard (1977) individual cannot be compelled to display state slogan on license

  • Board of Regents of U. Wisc. v. Southworth (2000) rejects speech claim for student fees

  • Rumsfeld v. FAIR (2006) federal law requiring equal treatment of military recruiters did not violate university’s expressive rights or imply university endorsement of military policy

Expressive Association

  • Roberts v. United States Jaycees (1984) strikes gender discrimination in private organization

  • Hurley v. Irish American GLB Group of Boston (1995) upholds decision to exclude gay rights group from privately organized parade

  • Boy Scouts of America v. Dale (2000) upholds Boy Scout ban on gay membership

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