Freedom of Speech  Seems like a dumb question, but why is it so important to a democratic government?  Ability to debate actions and policies of elected officials  Ability to be informed about current issues  Soooo…..generally, democratic nations allow free speech that promotes even offensive ideas because suppressing speech is more dangerous to society.  Seems simple, right? But what IS speech?

Principles of Free Speech: Types of Speech  1. Pure Speech  Only spoken words (debates, public meetings)  Greatest protection under the Bill of Rights  2. Speech Plus  Speech combined with actions (demonstrations / picketing)  Speech portion is generally protected but actions may be regulated  3. Symbolic Speech  Conduct that conveys a message in itself without spoken words  Some forms are protected, some not…

Principles of Speech: Types of Speech  3. Symbolic Speech, cont…  Burning Draft cards – not symbolic speech  Necessary to government purpose of having an army  Flag Burning – is symbolic speech  Bedrock Principle: the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Principles of Free Speech: Public Forums  Government cannot deny free speech rights in a public form (park / street) but can regulate the time, manner, and place (where, how, when).  Has to be content neutral in its regulation of speech  Can restrict freedom of speech, if content neutral, if the action interferes with another constitutional right (like abortion clinics).

Principles of Free Speech: Over breadth and Vagueness  Restriction can’t be too vague  If so, it has a tendency to stifle free expression  Example: case concerning limiting free speech in an airport terminal but was struck down b/c it did not specify an area and could prohibit talking in general.

Principles of Free Speech: Right Not to Speak  Can force you to be silent but can’t force you to speak  Pledge of allegiance, for example

Principles of Free Speech Speech in Campaigns  Supreme Court has ruled that “money is speech.”  Campaign laws that restrict donations are legal  Campaign laws that restrict spending are NOT legal

Principles of Speech: Least Restrictive Means  No law may restrict / limit freedom of speech if there is some other way to handle the problem.

Limits on Free Speech: Obscenity  Not protected – anything that depicts sex or nudity in a way that violates society’s standards of decency. Something is obscene if is has 3 characteristics:  An average person, applying community standards, finds that it has an obscene interest in sex.  The work depicts /describes, in a patently offensive way, types of sexual conduct prohibited by law.  The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.  Notes:  It’s OK to possess obscene materials for private use.  Government can forbid sending obscene materials via interstate commerce. Most strict with child pornography.

Limits on Free Speech: Defamation  Damaging another person’s reputation through false information (slander = spoken; libel = written)  The truth is always a complete defense against defamation  Accidental speech with no malice intended is OK  Privileged speakers protected – members of Congress and parents

Limits on Free Speech: Fighting Words  1 st Amendment does not protect abusive or insulting language  Has a direct tendency to cause acts of violence  More like a verbal assault than an exchange of information or ideas  Hate Speech – the argument protecting this is that it would violate freedom of speech by deterring what is not politically correct.  You can’t punish speech that could be regulated purely on the basis of content.

Limits on Free Speech: Commercial Speech  Government can regulate false advertising.  Government can restrict advertising on products it has the power to outlaw  Alcohol  Tobacco

Limits on Free Speech: Speech in Special Places  Restrict it in military bases, prisons, schools  Schools:  Free speech can be limited if student actions materially disrupt the school’s educational purpose (We’ll look at Tinker v. Des Moines )  The rights of students aren’t the same as adults (We’ll look at Bethel School District case)  Can censor school sponsored expression activities (newspaper) if it relates to a legitimate educational concern.

Limits on Free Speech: Unlawful Action  When does speech advocating unlawful action become more than free speech?  Speech must directly incite specific and immediate unlawful acts in order to be prohibited.  1. Clear and Present Danger – can punish when it creates an immediate threat of criminal action or danger.  Crowded movie theater scenario  2. Advocacy of Abstract Doctrine – forbidden to advocate the actual violent overthrow of the government (rather than the concept of advocacy of government overthrow).  3. Imminent Action – Speech cannot be punished even when it advocates illegal action unless it is “directed to inciting or producing imminent lawless action.”  “Let’s overthrow the government” – OK  “Let’s blow up the courthouse tonight at 9 pm” – not OK