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FREEDOM OF SPEECH

FREEDOM OF SPEECH. Types of Speech. Pure Speech : verbal expression of thought and opinion before an audience that has chosen to listen Symbolic Speech (expressive conduct): involves using actions and symbols, in addition to or instead of words to express opinions

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FREEDOM OF SPEECH

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  1. FREEDOM OF SPEECH

  2. Types of Speech • Pure Speech: verbal expression of thought and opinion before an audience that has chosen to listen • Symbolic Speech (expressive conduct): involves using actions and symbols, in addition to or instead of words to express opinions • SC has ruled that the 1st Amendment doesn’t permit expressive conduct that endangers public safety Tinker v. Des Moines

  3. O’Brien Test • Is burning a draft card unconstitutional? • Falls within the constitutional power of government • Is narrowly drawn to further substantial government interest that is unrelated to the expression of free speech • Leaves open ample alternative channels of communication • Is burning the American flag protected symbolic speech? • YES

  4. Regulating Speech: 3 Tests • Courts must balance the right to free speech & need to protect society • Seditious speech: any speech urging resistance to lawful authority or advocating the overthrow of the government • (1) “Clear and present danger:” the rule used if a conflict between free expression and the demands of pubic safety occurs • Schenck v. U.S.: Schenck, general secretary of Socialist Party convicted of printing and distributing leaflets that urged draftees to obstruct the war effort during WWI in violation of the Espionage Act of 1917 • SC upholds conviction since during wartime his actions threatened the well-being of the nation

  5. Bad Tendency Doctrine &Preferred Position Doctrine • (2) Speech could be restricted even if it had only a tendency to lead to illegal action • (3) 1st Amendment freedoms are more fundamental than any other freedoms because they provide the basis of all liberties

  6. Sedition Laws • Dennis v. U.S. (1951): used “Clear & Present Danger test” to uphold the conviction of 11 Communist leaders • Court narrowed its definition of seditious speech • Yates v. U.S. (1957): overturned convictions of several other Communist Party leaders…WHY? • Merely expressing the opinion that the government should be overthrown cannot be illegal • Brandenburg v. Ohio (1969): KKK leader who refused a police order to end a rally and cross brning was arrested….RESULT? • Court ruled in his favor: advocating the use of force cannot be forbidden “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action”

  7. Unprotected Speech • Defamatory Speech: false speech that damages a person’s food name, character or reputation • Slander v. Libel • Spoken v. Written • NY Times v. Sullivan (1964): even if a newspaper story about an AL police commissioner was false, it is protected if it is made without knowledge that it is false • Hustler Magazine v. Falwell (1988): well-known conservative minister cannot collect damages for words that might intentionally inflict emotional distress

  8. Fighting Words & Student Speech Fighting Words: • Words so insulting that they provoke immediate violence do not = protected speech (Chaplinsky v. NH 1942) Student Speech: • Bethel School District v. Fraser (1986): 1st Amendment doesn’t prevent school officials from suspending students for lewd or indecent speech at school events • Hazelwood School District v. Kuhlmeier (1988): school officials have sweeping authority to regulate student speech in school-sponsored newspapers, theatrical productions and other activities

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