Freedom of Expression Laura Lantrip Alina Mihelin

1st 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.”- The Constitution Originally, the First Amendment only applied to the Congress. However, in the 20th century, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the First Amendment to each state, including any local government.

Schenck v. United States (1919) Charles Schenck sent out anti-draft leaflets encouraging young men not to participate in war. He was convicted. The decision was unanimous that Schenck should have his First Amendment right to freedom of expression taken away due to insubordination during wartime. Words spoken that are a “clear and present danger” to national security are not protected by the First Amendment.

Gitlow v. New York (1925) Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. Gitlow argued that since his publications didn’t incite anarchy, he hadn’t committed a crime. New York court said that since he advocated an overthrow, it was an equal offense. The Supreme Court decided that dangerous speech should be prohibited and that any person will be convicted whether their speech created any danger at all, despite the provisions of the First Amendment.

Miller v. California (1973) Miller mass-mailed “adult” material advertisement to some unwilling California residents. In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection because the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law or the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Tinker v. Des Moines (1969) John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially interfere with the learning environment.

Texas v. Johnson (1989) In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Ashcroft v. ACLU (2004) Congress passed the Child Online Protection Act (COPA) to prevent minors from accessing pornography online. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The Supreme Court ruled that COPA is a violation of the First Amendment. Congress was not able to show that COPA was the most effective way to prevent minors from accessing adult content. The SC agreed that there were less oppressive ways to do so.

Timeline Passage of the First Amendment->Passage of the Fourteenth Amendment->Schenck v. US->Gitlow v. New York->Tinker v. Des Moines->Miller v. California->Texas v. Johnson->Ashcroft v. ACLU As the years have progressed, the SC has realized that anything that brings harm to the country or another human being is not protected by the First Amendment. This does not include things that are offensive to others.

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