1.If the regulation is within the constitutional power of government. 2.If the government has a substantial interest unrelated to suppression of speech. 3.If there are ample alternative ways to communicate. When can government limit or regulate expressive conduct?
–Picketing in front of a private residence. –Approaching people without consent to speak or offering literature to them within 100 feet of a health care facility (i.e., abortion clinic) An individual’s Right to Privacy will triumph over your Freedom of Speech. Examples of acceptable limits on expressive speech
Regulating Speech Seditious speech is prohibited. –Urging resistance to lawful authority –Advocating overthrow of the government
“Clear and Present Danger” Doctrine (in time of war, things may be different) “When a nation is at war many things that might be said in time of peace … will not be endured …” Justice Oliver Wendell Holmes, Jr. (1919) Regulating Speech
“Bad Tendency” Doctrine Example: Yelling “Fire” in a crowded theater. Regulating Speech
“Preferred Position” Doctrine (1 st Amendment freedoms are more fundamental than other freedoms) The government must show that it is absolutely necessary to limit Freedom of Speech. Regulating Speech
Sedition Laws Dennis v. United States (1951) Court upheld conviction of 11 communist party leaders who advocated revolution. Regulating Speech
Sedition Laws Yates v. United States (1957) Court overturned convictions of several communist party leaders. Expressing an opinion that the government should be overthrown is different from urging people to take action. Regulating Speech
Brandenburg v. Ohio (1969) Court ruled in favor of a Ku Klux Klan leader. While he advocated use of force in general, he did not urge “immediate and concrete acts of violence” against a specific target.
Other Forms of Unprotected Speech Defamatory Speech False speech that damages a person’s good name, character, or reputation. Slander – Spoken Libel – Written
For slander and libel the key is: 1.Was the statement made with the knowledge that it was false? OR 2.Was the statement made with reckless disregard of whether it was false or not? (A newspaper must verify its sources.) Other Forms of Unprotected Speech
NOTE: For public officials or public figures (pastors, athletes, entertainers, etc.) the rules can be very different. These kinds of people thrive on public notice or notoriety. Other Forms of Unprotected Speech
Fighting Words Offensive, derisive, annoying, etc. Words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Other Forms of Unprotected Speech
Student Speech is Limited Tinker v. Des Moines School District (1969) Students do not give up their rights to free speech while in school. (Students won.) HOWEVER …
Bethel School District v. Fraser (1986) School districts may suspend students for lewd or indecent speech at school events, even though the same speech would be protected outside the school. School officials can decide what manner of speech is appropriate. Student Speech is Limited
The Supreme Court says that schools have broad authority to regulate student speech in school-sponsored newspapers, theatrical productions, and other activities. These things are “part of the curriculum,” not an individual’s personal expression of thought. Student Speech is Limited
Therefore, the school could legally prohibit: Productions of “Hair” or “Equus” (plays with nudity) or “Who’s Afraid of Virginia Wolf” (foul language) or “Rent” (gay characters and drug use). School newspaper articles about abortion, politics, or religion (would probably offend somebody). Student speeches or acts with inappropriate language or topics (comedy club type routines). The school newspaper, plays, talent shows, etc. are intended to train students to work in those areas (i.e., “part of the curriculum”).
Assignment Instead of Political Articles for next week - - - Write an analysis of the Supreme Court’s positions on student’s speech rights. Quote from Tinker, Kuhlmeier, & Fraser but don’t just copy-&-paste. (Find Fraser’s speech, etc.) Must be: Typed, single spaced, 12 point font Minimum of 2 full pages Cite your sources on a separate page at the end. Due Date: Tuesday, October 13 (after 4 day break) Weight: One test grade