1st AmendmentFreedom of Speech

First 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.

What kind of speech does the 1st

Amendment protect?

Written words
Spoken words
Expressive conduct /Symbolic speech
actions that do not involve written or
spoken words but do contain a message.
Citizens must have the right to criticize the
government for democracy to function.

SCHENCK V. U.S. 1919

In many places and in ordinary times the

defendant, in saying all that was said . . .
would have been within his constitutional
rights. But the character of the act depends
on the circumstances in which it is done.

This was a time of war

Speaking freely vs. sedition
You can limit speech during war time

CLEAR & PRESENT DANGER

DOCTRINE

The question in every case is whether the words

used are used in such circumstances and are of
such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent.

The clear and present danger test allowed

the government to punish speech in those
instances when speech created a clear and
present danger of unlawful action.
5

Symbolic Speech
Can a man at an anti-American rally
express his opinion by burning the
American flag?

Texas v. Johnson, 1989

The government may not prohibit the

expression of an idea simply because
society finds the idea offensive or
disagreeable.

Can a state ban cross burning?

Yes, there is no communication, no message.
It is an attempt to terrorize a population.
Virginia v. Black, 2003

Tinker v. Des Moines

Symbolic Speech

Mary Beth and John Tinker

Results of Tinker

Students do not surrender their constitutional rights simply by

entering a public school

The prohibition of expression of one particular opinion is not

constitutionally permissible and a student has the right to express
his or her opinions, even on controversial subjects.

The school has the burden of showing that the students speech
materially and substantially interfered with the requirements of
appropriate discipline in the operation of the school and without
colliding with the rights of others. The 1st Amendment protects
expression in public schools as long as its not disruptive,
obscene or violates the rights of other students.

Guiles v. Marineau
In 2004, Zachary Guiles, a 13-year-old
student at Williamstown Middle High School in
Vermont, wore a T-shirt to school that criticized
President Bush as a chicken-hawk president.
The T-shirt also accused the President
of being a former alcohol and cocaine abuser. To
make its point, the shirt displayed images of
drugs and alcohol.

Zach Guiles wore the T-shirt on average

once a week for two months. Although the shirt
evoked discussion from students, it did not cause any
disruptions or fights inside or outside the school.
On a school field trip, Zach wore the Tshirt. A parent who was to chaperone the trip noticed
the shirt and voiced her objection to a teacher.
The teacher determined that the T-shirt,
specifically the images of drugs and alcohol, violated
the following provision of the schools dress code:

Williamstown Middle High School

Dress Code
Any aspect of a person's appearance, which
constitutes a real hazard to the health and safety of
self and others or is otherwise distracting, is
unacceptable as an expression of personal taste.
Example (Clothing displaying alcohol, drugs,
violence, obscenity, and racism is outside our
responsibility and integrity guideline as a school
community and is prohibited).

The teacher gave Zach three choices: (1) turn the shirt insideout; (2) tape over the images of the drugs and alcohol and the word
"cocaine"; or (3) change shirts.
Zach's father came in to speak with the teacher, who reiterated
that the shirt contravened dress code policy. Zach returned home with his
father for the remainder of that day.
The next day, Zach came to school wearing the T-shirt. The
teacher again told Zach to tape over the images, turn the shirt inside out or
change shirts. Zach refused. The teacher filled out a discipline referral form
and sent Zach home.
Zach wore the T-shirt to school again the next day, this time,
however, with the images of drugs and alcohol and the word "cocaine"
covered with duct tape. On the duct tape plaintiff had scrawled the word
Censored.
his

1st

Zach then sued the school and the school district for violating
Amendment rights of free speech.

Is the speech protected by the 1st

Amendment?

Should Zach have been allowed to wear the shirt to

school?

Did his actions threaten to create a material and

substantial interference with the schools effective
operation?

Did his actions involve lewd, indecent or offensive

speech?

Is the School Districts policy Constitutional?

Courts Decision
Images of a martini glass, a bottle and glass, a man
drinking from a bottle, and lines of cocaine do not constitute lewd,
indecent, or plainly offensive speech. The images may cause
school administrators displeasure and could be construed as
insulting or in poor taste. We cannot say, however, that these
images, by themselves, are plainly offensive.
Tinker applies - The parties agree that Zachs T-shirt
did not cause any disruption or confrontation in the school. Nor do
defendants contend they had a reasonable belief that it would.
Zach wore the T-shirt on average once a week for two months
without any untoward incidents occurring. Because his T-shirt did
not cause any disruption, defendants' censorship was unwarranted.

An Oregon man tired of security searches at

the Portland airport took off all of his clothes
to prove he wasnt a security threat. Officers
piled up plastic tubs to block the view, then
arrested John Brennan, 50, for indecent
exposure. A judge found him not guilty
ruling that his protest was protected free
speech.

A district judge found a New York City

woman innocent of littering after she
dumped a box of garbage under the
police dispatchers window. Noting that
the act was committed to protest the
lack of trash barrels at a local beach,
the court held that the tourist was
exercising her right of free speech.

FREEDOM OF THE PRESS

Congress shall make no law . . . abridging the
freedom of . . . the press

A free press is an indispensable part of an open

society (preferred position).
The only security of all is in a free press
Thomas Jefferson

Is freedom of the press an absolute right?

Freedom of the press protects ideas that have

redeeming social importance.

FREEDOM OF THE PRESS

Government cannot stop a newspaper

from publishing information.
There is a very heavy presumption
that prior restraint (preventing
publication prior to its approval from
the government) is a violation of the
Constitution.

FREEDOM OF THE PRESS

Certain forms of expression are not

protected by the First Amendment, as
they have no socially redeeming
value:

fighting words
libel
obscenity
profanity

OBSCENITY

If something is obscene it can be banned,

but how does one define obscenity?
I

know it when I see it

Justice Potter Stewart, 1964

Miller vs. California - This case found that

obscenity could be a form of limited free
speech