A high-level overview of what constitutes free speech, as well as the restrictions on free speech permitted by the Supreme Court.
Freedom of expression is one of the most fundamental individual liberties protected by the Bill of Rights, as democracy depends upon the free exchange of ideas.
|“clear and present danger”
|Formulated during the 1919 case Schenck v. United States, the “clear and present danger” test permitted the government to punish speech likely to bring about evils that Congress had a right to prevent, such as stirring up anti-war sentiment. Since the 1960s, the Supreme Court has replaced the “clear and present danger” test with the “direct incitement” test, which says that the government can only restrict speech when it's likely to result in imminent lawless action, such as inciting mob violence.
|The act of damaging someone’s reputation by making false statements. Defamation through a printed medium is called libel, while spoken defamation is called slander.
|Written or spoken communication that belittles a group based on its characteristics, such as race, gender, or sexual orientation.
|Lewd or sexual art or publications. Although the Court has struggled to define what constitutes obscenity, it has upheld restrictions on materials that “to the average person applying contemporary community standards” depict offensive or sexual conduct and lack literary or artistic merit.
|Nonverbal forms of speech protected by the First Amendment, such as picketing, wearing armbands, displaying signs, or engaging in acts of symbolic protest such as flag burning.
|time, place, and manner restrictions
|Limits to freedom of expression based on when, where, and how individuals or organizations express opinions. For example, a city may require an organization to obtain a permit in order to conduct a public protest.
Cases to know
Schenck v. United States (1919) - During World War I, socialist antiwar activists Charles Schenck and Elizabeth Baer mailed 15,000 fliers urging men to resist the military draft. They were arrested under the Espionage Act of 1917, which banned interference with military operations or supporting US enemies during wartime. The resulting Supreme Court case concerned whether the Espionage Act violated freedom of speech. The Court upheld the Espionage Act, ruling that the speech creating a “clear and present danger” was not protected by the First Amendment.
Tinker v. Des Moines Independent Community School District (1969) - Iowa teenagers Mary Beth Tinker, her brother John, and their friend Christopher Eckhardt were suspended from their public high school for wearing black armbands to protest the Vietnam War. In the resulting case, the Supreme Court ruled that the armbands were a form of symbolic speech, which is protected by the First Amendment, and therefore the school had violated the students’ First Amendment rights.
Balancing liberty and order — The Supreme Court has supported the free speech rights of individuals engaged in protest, including nonverbal “symbolic speech.” But freedom of speech is not absolute: the Court has upheld restrictions on defamatory and obscene speech, as well as speech that incites violence or lawbreaking.
Why do you think the Court has struggled to define obscenity? How do we know if material is obscene, and under what circumstances should communities be permitted to ban obscene materials?
Do you think the government should be allowed to restrict certain forms of speech during wartime? Why or why not?
Should the First Amendment protect hate speech? Why or why not?