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Free Speech and The Constitution

The document discusses free speech protections under the US Constitution. It outlines the evolution of key Supreme Court tests used to balance free speech rights with public order, including the clear and present danger test. It also examines what constitutes protected speech, such as symbolic speech, and unprotected categories like fighting words and obscenity. The document concludes by analyzing content neutrality and the complex issue of campaign finance laws and Citizens United.

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Thely Geollegue
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31 views

Free Speech and The Constitution

The document discusses free speech protections under the US Constitution. It outlines the evolution of key Supreme Court tests used to balance free speech rights with public order, including the clear and present danger test. It also examines what constitutes protected speech, such as symbolic speech, and unprotected categories like fighting words and obscenity. The document concludes by analyzing content neutrality and the complex issue of campaign finance laws and Citizens United.

Uploaded by

Thely Geollegue
Copyright
© © All Rights Reserved
Available Formats
Download as PPT, PDF, TXT or read online on Scribd
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FREE SPEECH AND

THE CONSTITUTION
Outline
Brief overview of American law and civil liberties
Freedom of Expression
Freedom versus Order
Symbolic Speech
Content Neutrality
Campaign Finance
Conclusions

Please feel free to ask questions at any time


The American Legal System
Common law
Precedent is important
Supreme Court
Although it only hears about 75 cases per term in recent
years, its decisions set precedents that guide the future of
law throughout the US
Supreme Court Tests/Standards are important
They set the criteria for other courts to use to determine
the constitutionality of various policies
Judicial Review
Courts are coequal with the elected branches of
government
Origins of Civil Liberties in the U.S.
Civil Liberties - The fundamental individual rights
of a free society, such as freedom of speech, which
are protected by the Bill of Rights

Constitution did not include explicit protection for


individual civil liberties
States responsible for things such as regulating
speech and the press
Only when ratification of Constitution was in
danger did a federal Bill of Rights emerge
Selective Incorporation
Bill of Rights originally applied only to national
government, not the states
Selective Incorporation
Due Process Clause
5th and 14th Amendments to the Constitution:
forbid deprivation of life, liberty, or property without the due
process of law
Selective Incorporation
Language in the 14th Amendment applied the due
process clause to the states
But, the Supreme Court did not immediately
conclude that the states must abide by the entire
Bill of Rights
Freedom of Expression
The right of individuals to hold and communicate
views of their choosing.
Both a personal and social good:

A personal good as an aspect of individual


liberty.
A social good as a mechanism for collectively
arriving at best solutions to societal problems.
The 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.
Literally speaking, NOT true!
Sedition Act of 1798
Espionage Act of 1917
Central Consideration:
Is public order in danger?
Clear and Present Danger Test
Developed in Schenck v. United
States (1919), in which Espionage
Act of 1917 was upheld
Involved the leader of
Communist Party in U.S. who
printed/distributed leaflets
opposing the draft
Oliver Wendell Holmes
. . . [T]he 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.
Further
When a nation is at war many things that might be
said in time of peace are such a hindrance to its
effort that their utterance will not be endured.
Hence, the Clear and Present Danger Test:

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.
Subsequent Free Speech Tests
Clear and Present Danger Test

Bad Tendency Test

Clear and Probable Danger Test

Imminent Lawless Action Test
The Bad Tendency Test
Abrams v. United States (1919)

Do the words used have the tendency to bring about


an evil result?
Clear and Probable Danger Test
Dennis v. United States (1951)

. . . Whether the gravity of the evil discounted by


its improbability, justifies such invasion of free
speech as is necessary to avoid the danger.
Imminent Lawless Action Test
(Current Standard)
Brandenburg v. Ohio (1969)

Speech can be prohibited if it is (1) directed at


inciting or producing imminent lawless action and
(2) it is likely to incite or produce such action.
Key Point:
Whatever test that is used, the balance is between the
value of freedom and the value of order.
Another Important Consideration:

Exactly what constitutes speech?


Symbolic Speech
Action for the purpose of expressing a political opinion.

Burning a Draft Card


*United States v. O'Brien (1968)
Wearing a black arm band in protest
* Tinker v. Des Moines (1969)
Burning the flag
* Texas v. Johnson (1989)
NOT Protected:

Fighting Words
Obscenity
Libel
Fighting Words
. . .[T]hose [words] which by their very utterance
inflict injury or tend to incite an immediate breach
of the peace.
Obscenity
Material that is abhorrent to morality or virtue;
specifically designed to incite lust or depravity.
Obscenity Pornography
Pornography: Material that depicts erotic behavior
and is intended to cause sexual excitement

Obscenity NOT protected


Pornography IS protected
As long as its not obscene pornography!
Libel
A tort consisting of a false and malicious publication
printed for the purpose of defaming one who is
living
The New York Times Test (libel)
New York Times v. Sullivan (1964)

To recover damages for defamatory falsehood, a


public official must prove that the statement was
false, damaging, and made with actual malice
Actual Malice?
Knowledge a statement is false or made with reckless
disregard for whether or not it is false.
Content Neutrality

Content-Based Regulation: A regulation of speech


that is based on the substance of the message being
communicated.

Content-Neutral Restriction: A restriction on the


manner in which an expression can be
communicated or conveyed. They are often known as
"time, place, and manner" restrictions.
Examples of Content-Based Restrictions
Hate crimes laws: prohibiting speech that "arouses
anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender."
Speech that may cause emotional distress because
of its content
Campaign Spending
Campaign Finance Laws
The US Supreme Court has drawn three very
important conclusions with respect to campaign
finance.
1) Money is a form of political speech
2) Corporate personhood grants corporations certain
constitutional rights
3) But, the government has an interest in restricting both
the actual corruption threatened by large financial
contributions and... the appearance of corruption
Campaign Finance Laws Where we Stand
There are limitations on how much money
individuals, corporations, and interest groups can
donate directly to candidates for federal office
But, Citizens United v. Federal Election
Commission (2010) determined that the unlimited
funding of independent electioneering broadcasts
was protected by the First Amendment
In 2014, the Court also struck down limits on the
overall amount of money individuals can give to
candidates
Conclusions
Free speech continues to be a highly controversial
issue in American politics

In an effort to provide guidance over this issue, the


Supreme Court has established a series of tests

Others have proposed constitutional amendments


to deal with issues such as campaign finance
reforms

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