Lecture 18-1

Freedom of Expression

The Bill of Rights: Securing the Blessing of Liberty

Applying the Bill of Rights to the States

• The Bill of Rights at first was not applicable to the states, but was applicable only to the national government

• Only after ratification of the Fourteenth Amendment in 1868 did the Supreme Court gradually began to apply those restrictions to the states

• Most of the decisions “incorporating” the Bill of Rights occurred between 1925 and 1969 beginning with Gitlow v. New York

The Value of Free Expression

• Free expression is necessary to the political process set up by the Constitution

• Free expression allows the dominant wisdom of the day to be challenged and so aids the search for truth

• Free expression promotes individual self-development

The Tests of Freedom

• The clear and present danger test tolerated expression of all points of view unless they threaten serious and imminent violence. Schenck v. United States

• The bad tendency test allowed suppression of view that someday might threaten cherished values of the a majority.

• The Supreme Court today presumes that most restrictions on the content of speech are at odds with the First Amendment.

Gags

• The Supreme Court is least likely today to approve a prior restraint that forbids publication or stops publication already underway

– National Security Exception

• Prior restraints are very damaging to free speech. Near v. Minnesota

Protest and dissent

• Subversive speech is a problem for a democratic political system

• While the Smith Act made it unlawful to advocate the overthrow of the government, the Supreme Court today requires that such views be accompanied by action before they can be prosecuted

Obscenity and Libel

• Certain depictions of explicit sex and libelous statements are not considered protected by the First Amendment. Miller v. California

• But the Supreme Court has had difficulty defining what is legally obscene and in setting standards for libel cases which arise from verbal attacks on public officials and figures. New York Times v. Sullivan

Freedom of Assembly and Symbolic Speech

• Some expression involves action, beyond the mere expression of words

• Some of these actions may be lawfully restricted not because of the message they convey but because of the harm that results from the medium chosen to convey the message

Freedom of Assembly and Symbolic Speech

• In an important case the Supreme Court has denied the authority of government to punish persons who burn the American flag as a form of symbolic speech. Texas v. Johnson

• Tinker v. Des Moines School District

Reasonable Restrictions

• Time

• Place

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