1 st Amendment - 5 Freedoms 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.

Freedom of Speech

NO ONE HAS THE RIGHT TO DO ANYTHING HE OR SHE PLEASES Yes – the Constitution guarantees many different rights to everyone in the U.S. BUT those rights must not INFRINGE on the rights of OTHERS Cannot cause HARM to another

The 1 st and 14 th Amendment serve 2 fundamentally important purposes: (1) To guarantee to each person a right of FREE EXPRESSION (2) To guarantee to all persons a full, wide- ranging discussion of PUBLIC AFFAIRS “freedom for the thought that we hate,” Oliver Wendell Holmes, Justice, 1929

Does the First Amendment mean anyone can say anything at any time? NO The Supreme Court has rejected an interpretation of speech without limits Because the First Amendment has such strong language, we begin with the presumption that speech is protected. – Over the years, the courts have decided that a few other public interests — for example, national security, justice or personal safety — override freedom of speech. There are no simple rules for determining when speech should be limited, but there are some general tests that help.

NO ONE ENJOYS ABSOLUTE FREEDOM OF SPEECH What’s not protected by Constitution: (1) Shouting FIRE or BOMB in a crowded place – words intended to cause mayhem (2) False Advertising (3) Libel (print) and Slander (spoken) – Speech that impugns a person’s reputation resulting in demonstrable harm, especially (but not exclusively) financial harm. Penalties are civil rather than criminal.

NO ONE ENJOYS ABSOLUTE FREEDOM OF SPEECH Not protected by Constitution: (4) Obscene Words and Printing and Distributing obscene materials – Words deemed to be pornographic or against community standards. – Ex: This might include using swear words at a circus with lots of young children around, but would not include the same words used at a bar. Supreme Court wrestles with this question: What LANGUAGE and IMAGES in printed matter, films, and other materials are, in fact, obscene? What type of RESTRICTIONS? There’s a test…

1973 Miller v. California 3-Part Test Is It Obscene? MILLER TEST (1) AVERAGE PERSON (follows contemporary community standards) finds that the work tends to excite lust (2)The work depicts and describes sexual content in offensive way (3)The work lacks serious literary, artistic, political, or scientific value

Local attempts to regulate so-called adult bookstores and similar places 1 st and 14 th does not PREVENT a city from REGULATING THE LOCATION of “adult entertainment establishments” City of Renton v. Playtimes Theaters, Inc. -2 theaters to show adult films OUTCOME – A CITY CAN DECIDE TO BAR THE LOCATIONS OF SUCH PLACES WITHIN 1000 FT. OF A RESIDENTIAL ZONE, CHURCH, PARK, SCHOOL

NO ONE ENJOYS ABSOLUTE FREEDOM OF SPEECH Not protected by Constitution: (5) Clear and Present Danger ?? Will this act of speech create a DANGEROUS SITUATION??

Clear and Present Danger?? A. Use of words to prompt others to commit a crime – A general comment like “people who provide abortions should be stopped” would not be considered incitement BUT a leader exhorting believers to carry out divine will by carrying out a death sentence for abortion providers might be considered incitement.

Clear and Present Danger?? B. Fighting Words – Words that are specifically intended to provoke an immediate reaction that would constitute a breach of the peace. – THREATS Speech that is intended to intimidate. This would include bullying and specific believable threats of physical harm. An offhand angry remark like “I could kill her” would not count, but saying, “I will kill you” to someone who believes that you have the will and means to do so would count. This is usually a criminal matter. (Anthony Elonis Case)

Clear and Present Danger?? C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Extreme or outrageous speech intended specifically to cause an individual or group distress. Usually a civil rather than criminal matter.

What about protesting at military funerals? Snyder v. Phelps "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech. "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."

Clear and Present Danger?? D. HARASSMENT Words intended to demean or create a hostile environment. In this instance, speech is interpreted not as speech, but as action. This is the basis for campus and workplace speech codes, where those in charge have a duty to create a safe environment.

Clear and Present Danger?? E. Seditious Speech – Advocating or urging attempts to overthrow the government by force or to disrupt its lawful activities by violent acts and distributing any material that teaches or advises violent overthrow – SMITH ACT (1940) * You can urge someone to believe something BUT CANNOT URGE them to DO something

You [students] do not “shed your constitutional rights when you enter the schoolhouse door” but school administrators have a far greater ability to restrict your speech than the government has to restrict the speech of the general public. CANNOT CAUSE A DISTURBANCE TO EDUCATIONAL SYSTEM

Now, let’s see what you think? Decide whether the situations on your sheet are PROTECTED BY THE FIRST AMENDMENT *new PP