Freedom+of+Expression

=__**Freedom of Expression**__=

The freedom of speech in the United States is protected by the First Amendment to the Constitution. The word "speech," in the Constitution is interpreted as both verbal and symbolic expression by an individual. The text of the Amendment relating to free speech reads as follows:

// "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." //

Although it is guaranteed, the Supreme Court has imposed exemptions of this freedom regarding certain kinds of expression. These exemptions include, but are not limited to: child pornography, speech that incites lawless actions, and other things deemed obscene.



**__Cases relating to Free Speech__**
**Units**: Civil liberties **Keywords**: free speech clause **Mnemonic Device**: S is for Schenck speaking out **Background:** In WWI, Schenck mailed “circulars” to draftees, saying that the draft was wrong. Suggested peaceful opposition like protesting the draft. Charged with insubordination and obstruction of recruitment. **Question**: Are Schenck’s actions protected by the free speech clause in the First Amendment? **Answer:** Schenck is not protected by the free speech clause. Utterances tolerated in peacetime can be punishable in war time. Free speech depends on the circumstances. **Significance:** Put a limit on free speech in war times.
 * __Schenck v. United States (1919)__ **

**Units**: Civil liberties **Keywords**: Incorporation, free speech clause **Mnemonic Device**: Due process helps the communist **Background**: Gitlow was arrested for distributing copies of a “left-wing manifesto” that called for the establishment of socialism through strikes and class actions. Convicted under a state criminal anarchy law, punishing any avocation of overthrowing the government by force. Gitlow argued that there was no resulting action flowing from the publication, the statute penalized without propensity to incitement of concrete action. New York courts decided that anyone who advocated the doctrine of violent revolution violated the law. **Question**: Is the New York law punishing advocacy to overthrow the government by force and unconstitutional violation of the free speech clause of the First Amendment? **Answer**: No. Because of the 14th Amendment, no state shall deny the liberties protected by the First Amendment. However, a state may deny speech and publication if it has a tendency to result in action dangerous to public safety, even if they do not create clear and present danger. Legislature may decide than an entire class of speech is so dangerous that it should be prohibited. **Significance**: Gitlow was the first incorporation case. New York was obliged to allow people the rights contained in the Bill of Rights. **Policy** **Impact**: “Clear and Present Danger” test gains influence in free expression cases.
 * __Gitlow v. New York (1925)__ **

__**West Virginia v. Barnette (1942)**__ **Units**: Political Beliefs, Behaviors in Parties, Campaigns, and Elections, Institutions of Government, Civil Rights and Civil Liberties, Underpinnings and Documents of American Government **Keywords**: Compulsory, insubordination, delinquency **Mnemonic** **Device**: Barnette barred students from being required to solute the flag each day. **Background**: The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency. **Question**: Did the compulsory flag-salute for public schoolchildren violate the First Amendment? **Answer**: In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

__ **Yates v. United States (1957)** __ **Units**: Political Beliefs, Behaviors in Parties, Campaigns, and Elections), Institutions of Government, Civil Rights and Civil Liberties **Keywords**: Smith Act, conspiring, overthrow of government by force, remanded  **Mnemonic Device**: Yates yells for comminism  **Background:** Fourteen leaders of the Communist Party in the state of California were tried and convicted under the Smith Act. That Act prohibited willfully and knowingly conspiring to teach and advocate the overthrow of the government by force. This case was decided in conjunction with Richmond v. United States and Schneiderman v. United States.  **Question**: Did the Smith Act violate the First Amendment?  **Answer**: In a 6-to-1 decision, the Court reversed the convictions and remanded the cases to a District Court for retrial. The Court interpreted the Smith Act in the following manner: First, the term "organize" was construed to mean the creation of a new organization, making the Act inapplicable to subsequent organizational acts. Second, the Court drew a distinction between the "advocacy and teaching of forcible overthrow as an abstract principle" and the "advocacy and teaching of concrete action for the forcible overthrow of the Government." The Court recognized that instances of speech that amounted to "advocacy of action" were "few and far between.

**Units:** Constitutional underpinnings, federalism **Keywords**: Lawless actions, criminal syndicalism **Mnemonic Device**: Ohio can’t ban the Klan **Background**: Brandenburg (a KKK leader) made a speech at a Klan rally and later was convicted under Ohio’s criminal syndicalism laws. They made “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform and assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism” illegal. **Question**: Did Ohio’s syndicalism law violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments? **Answer**: Yes (8-0). The Ohio law violated Brandenburg’s free speech. Speech can be prohibited if it is directed towards producing lawless action or likely to incite such action. The syndicalism act prohibited teaching of doctrines, ignoring if that teaching would actually incite any lawless actions. **Significance**: The case broadened the protections given by the First Amendment, and scrapped the “clear and present danger” test (limiting speech that has tendencies to inciting lawless actions) creating the Brandenburg test (the speech can be limited if it is directed towards inciting lawless actions). Whitney v. California (1919) was overturned. Policy Impact: Updates the “clear and present danger” test with the Brandenburg test, narrowing the spectrum on what speech is considered dangerous and unlawful.
 * __Brandenburg v. Ohio (1969)__ **

**Units**: Constitutional Underpinnings, civil liberties **Keywords**: Free expression, symbolic protest **Mnemonic** **Device**: To Defend My Speech is Due **Background**: John and Mary Beth Tinker and Christopher Echardt decided to protest the Vietnam War by wearing black armbands to school during the Christmas season. The school district’s principals caught wind of the protest and feared that it would provoke disturbances and ordered to remove the armbands or face suspension. The students refused and were suspended until after New Year’s Day. **Question**: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment’s freedom of speech protections? **Answer**: Yes (7-2). While school environments imply limitations on free expression, the principals lacked justification for imposing such limits. They failed to show that the protest was disrupting appropriate school discipline. **Significance**: This case is closely related to Brandenburg; both cases concern expression that once was illegal because it may induce lawless actions, but was considered legal because it was not directed towards starting trouble. **Policy Impact:** Students are allowed to express their views in a school environment peacefully and in an orderly way without the fear of punishment.
 * __Tinker v. Des Moines School District (1969)__ **

**Units:** Civil liberties **Keywords**: Free speech clause **Mnemonic** **Device**: California has a large community which may be seen by some as obscene. You know what else is obscene? People after they've had too many Millers. **Background**: Miller had mass mailing campaign advertising adult material. Violated California statute prohibiting the distribution of obscene materials. **Question**: Is the sale and distribution of obscene materials by mail protected under the First Amendment’s freedom of speech guarantee? **Answer**: Obscene materials do not have First Amendment protection. Changed the test for obscenity to be more specific, changed to “Miller Test.” **Significance**: With Miller Test, what is obscene is better specified by the Court and can be easily identified.
 * __Miller v. California (1973)__ **

**Units:** Federalism, Constitutional Underpinnings, civil liberties **Keywords**: Expressive conduct, flag desecration **Mnemonic Device:** Flag burning **Background**: Gregory Johnson burned an American flag in front of the Dallas City Hall as a protest against Reagan’s administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was imprisoned, and the Texas Court of Criminal Appeals reversed the conviction and the case went to the Supreme Court. **Question**: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? **Answer**: Yes (5-4). The court found that Johnson’s actions were a form of expressive conduct and was distinctly political. The audience taking offence does not mean that the action is against the law. **Significance**: Flag burning is still a hot topic amongst courts. This case allowed for flag burning, saying that it is a harmless form of protest. Because an action is offensive does not mean that it is illegal. **Policy Impact**: The court held that state officials do not have the authority to designate certain symbols with limited meanings because the public may take offence.
 * __Texas v. Johnson (1989)__ **

__** Capitol Square Review and Advisory Board v. Pinette (1994) **__ **Keywords:** Public forum, Establishment Clause **Background:** In 1993, the Ku Klux Klan organization attempted to place an unattended cross on Capitol Square, the state-house plaza in Columbus, Ohio, during the 1993 Christmas season. Ohio law makes Capitol Square a forum for discussion of public questions and for public activities, and gives the Advisory Board responsibility for regulating access to the square. The Board denied the application of the Ku Klux Klan to erect the cross on Establishment Clause grounds.
 * Units: ** Political Beliefs, Behaviors in Parties, Campaigns, and Elections, Institutions of Government, Civil Rights and Civil Liberties
 * Mnemonic Device: ** The KKK does not have to stay stay stay away from placing crosses on public soil.
 * Question: ** Did the Board's denial of a permit to the Ku Klux Klan violate free speech under the First Amendment?
 * Answer: ** Yes. The display was private religious speech that "is as fully protected under the Free Speech Clause as secular private expression." Because Capitol Square is designated as a traditional public forum, any group may express their views there, and the Board may regulate the content of the Klan's expression on the plaza only if a restriction is necessary and narrowly drawn to serve a compelling state interest.
 * Significance:** P rivate religious speech that "is as fully protected under the Free Speech Clause as secular private expression

**Units**: Federalism, Constitutional Underpinnings **Keywords**: prima facie **Background**: Court heard a case on a Virginia statute that prohibited cross-burning. Cross-burning would be considered prima facie, as a the intent to intimidate, meaning the defendant had the burden of proof (guilty until proven innocent). **Question:** Does Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment? **Answer**: The statute does violate the First Amendment, for the act of cross-burning does not immediately imply an attempted act of intimidation. The statute would be allowed, however, if cross-burning was prohibited, if intimidation was proven. **Significance:** Held that implicit content-based legislation will not be Constitutional, such as R.A.V. v. St. Paul.
 * __Virginia v. Black (2002)__ **
 * Mnemonic Device: ** Black Burns Crosses

**Units:** Civil liberties **Keywords**: school speech **Mnemonic Device:** Morse and Mary Jane **Background**: A student, Frederick, was suspended for holding up a sign saying "Bong hits 4 Jesus" at a school supervised event. Frederick claimed his 1st Amendment rights were violated. **Question**: Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? **Answer**: Court ruled that Morse (principal) had the right to do so because the banner promoted illegal drug use, other students could see it, and they were at a school event. **Significance**: Furthered previous school speech decisions to apply to school events or activities.
 * __Morse v. Frederick (2006)__ **

**Units:** Bureaucracy, Judicial system **Keywords**: Whistleblower protection, qualified immunity **Mnemonic Device:** A public servant blows no whistle **Background**: Ceballos (working for the LA District Attorney) found that a sheriff misrepresented facts in a search warrant affidavit. The affidavit was questionable, but the DA refused to dismiss the case. He claimed that the DA office retaliated against him for his cooperation with the defence, arguing that he was protected by the First Amendment. District court ruled that the DA was protected by qualified immunity, the Ninth Circuit reversed in favor of Celeballos. **Question**: Should a public employee’s purely job-related search be protected by the First Amendment because it touched on a matter of public concern, or must the speech also be engaged in “as a citizen?” **Answer**: Speech by a public official is only protected if it is engaged in as a private citizen (5-4). Because his duties sometimes require him to speak or write does not mean that his employers were prohibited from evaluating his performance. **Significance**: First Amendment claims by employees were greatly reduced. The case “kills” a public employee’s ability to “blow the whistle.” **Policy Impact**: Public officials no longer have the ability to report a fault in the workplace unless they do it not as an employee but as a normal citizen.
 * __Garcetti v. Ceballos (2006)__ **

**Units**: Civil liberties ** Mnemonic Device: ** Phelps hates (insert derogatory homophobic slur) **Background**: The family of deceased soldier sued the Westboro Baptist Church for defamation, invasion of privacy, and intentional infliction of emotional distress after members of the church protested his funeral with signs reading: “Thank God for dead soldiers” and “Fag troops.” U.S. District judge was in favor of the family, while the Court of Appeals overturned it to favor the church. **Question:** Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? **Answer**: The Court held that the First Amendment shielded the protesters for liability. The protest was to express opinion over public issue and not to specifically go after the family of the soldier. **Significance**: The Court concluded that the public speech made by the Baptists were legal, for the messages were made to reach a wide audience to express their view on the issue of gays in the military. The right to picket the f uneral overrode any emotional damage the family may have sustained.
 * __Snyder v. Phelps (2011)__ **

A scholarly article on this case can be found [|here].

**__U.S. v. Alvarez (2011)__** **Units**: Political Beliefs, Behaviors in Parties, Campaigns, and Elections, Institutions of Government, Civil Rights and Civil Liberties **Keywords**: Stolen Valor Act, defamation, true threats **Mnemonic** **Device**: Stolen Valor Act hurts Alvarez **Background**: In 2007, Xavier Alvarez attended a meeting of the Three Valley Water District Board, stationed in Claremont, California, as a new member. He introduced himself by saying "I'm a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. As this st atement was not true, Alvarez was indicted for violating the Stolen Valor Act. The United States District Court for the Central District of California, the place where the trial was to occur, rejected Alvarez's claim that the Act was unconstitutional. This decision was reversed by a three-judge panel of the United States Court of Appeals for the Ninth Circuit which held the law invalid. **Question**: Does 18 U.S.C. 704(b), the Stolen Valor Act, violate the Free Speech Clause of the First Amendment?  **Answer**: Yes. Justice Anthony M. Kennedy, writing for a 6-3 majority, affirmed the Court of Appeals. Content-based restrictions on speech are subject to strict scrutiny and are almost always invalid, except in rare and extreme circumstances. While categories of speech, such as defamation and true threats, present a grave and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper. **Significance:** Still unconstitutional for Congress to act broadly in the sense that it tried to limit speech that causes no harm, and this is no grounds for criminal punishment.

**A full timeline of First Amendment evolution can be found [|here].**


 * Also see additional [|article].**

__**Works Cited**__

__"About." PapBlog Human Rights Etc. N.p., n.d. Web. 07 Apr. 2013.__

__"Atlas Shrugs." 'Atlas Shrugs' N.p., n.d. Web. 07 Apr. 2013.__

__BRANDENBURG v. OHIO. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. <__ [|__http://www.oyez.org/cases/1960-1969/1968/1968_492__] __>.__

__Deana Pollard Sacks, Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations, 120 YALE L.J. ONLINE 193 (2010), http://yalelawjournal.org/2010/12/29/pollard-sacks.html.__

__"Freedom Of Expression Cartoons and Comics." Freedom Of Expression Cartoons and Comics. N.p., n.d. Web. 07 Apr. 2013.__

__GARCETTI v. CEBALLOS. The Oyez Project at IIT Chicago-Kent College of Law. 29 March 2013. <__ [|__http://www.oyez.org/cases/2000-2009/2005/2005_04_473__] __>.__

__GITLOW v. NEW YORK__. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. < [|__http://www.oyez.org/cases/1901-1939/1922/1922_19__] >.

__MILLER v. CALIFORNIA. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. <__ [|__http://www.oyez.org/cases/1970-1979/1971/1971_70_73__] __>.__

__MORSE v. FREDERICK. The Oyez Project at IIT Chicago-Kent College of Law. 06 April 2013. <__ [|__http://www.oyez.org/cases/2000-2009/2006/2006_06_278__] __>.__

__SCHENCK v. UNITED STATES__. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. < [|__http://www.oyez.org/cases/1901-1939/1918/1918_437__] >.

__SNYDER v. PHELPS. The Oyez Project at IIT Chicago-Kent College of Law. 04 April 2013. <__ [|__http://www.oyez.org/cases/2010-2019/2010/2010_09_751__] __>.__

__TEXAS v. JOHNSON. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. <__ [|__http://www.oyez.org/cases/1980-1989/1988/1988_88_155__] __>.__

__TINKER v. DES MOINES IND. COMM. SCHOOL DIST.__. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. < [|__http://www.oyez.org/cases/1960-1969/1968/1968_21__] >.

__VIRGINIA v. BLACK__. The Oyez Project at IIT Chicago-Kent College of Law. 07 April 2013. < [|__http://www.oyez.org/cases/2000-2009/2002/2002_01_1107__] >.

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http://www.oyez.org/cases/1901-1939/1918/1918_437

<span style="font-family: Arial,Helvetica,sans-serif;">http://www.oyez.org/cases/1901-1939/1922/1922_19

<span style="font-family: Arial,Helvetica,sans-serif;">http://www.oyez.org/cases/1970-1979/1971/1971_70_73

<span style="font-family: Arial,Helvetica,sans-serif;">http://www.oyez.org/cases/1960-1969/1968/1968_21

<span style="font-family: Arial,Helvetica,sans-serif;">http://www.oyez.org/cases/1980-1989/1988/1988_88_155/

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