3.3 First Amendment: Freedom of Speech

Speech includes spoken and written words, and also symbolic speech: actions that communicate a message, like wearing an armband, burning a flag or refusing to stand. In Texas v. Johnson (1989), the Court ruled that burning the American flag in protest is protected symbolic speech.

Political speech gets the strongest protection, because criticizing government is central to self-government. Courts are especially suspicious of laws that target speech because of its content or viewpoint.

Facts: During World War I, Charles Schenck, a Socialist Party official, mailed leaflets to men who had been drafted, urging them to resist the draft. He was convicted under the Espionage Act of 1917.

Holding: The Court unanimously upheld the conviction.

Reasoning: Justice Oliver Wendell Holmes wrote that speech can be punished when it creates a “clear and present danger” of bringing about harms Congress may prevent. Context matters: words that are protected in peacetime may not be during war. Holmes compared it to falsely shouting fire in a theater and causing a panic.

Significance: Schenck established that speech rights have limits when national security is at stake. The test was later narrowed. In Brandenburg v. Ohio (1969), the Court ruled that government can punish advocacy of force or lawbreaking only if it's directed to inciting imminent lawless action and is likely to produce it. That's much more protective than Schenck.

Facts: In December 1965, students John Tinker, Mary Beth Tinker and Christopher Eckhardt wore black armbands to school in Des Moines, Iowa, to protest the Vietnam War. The school had just banned armbands, and the students were suspended.

Holding: In a 7–2 decision, the Court ruled the suspensions violated the First Amendment.

Reasoning: Students don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” in Justice Abe Fortas's words. The armbands were silent, passive symbolic speech. Schools can restrict student speech only if they can show it would substantially disrupt school activities or invade others' rights, not just because officials fear a disturbance or dislike the message.

Significance: Tinker set the “substantial disruption” standard for student speech. Later cases gave schools more room in specific situations, such as lewd speech at a school assembly (1986), school-sponsored newspapers (1988) and speech promoting illegal drug use at a school event (2007).

Offensive or hateful speech, by itself, is generally still protected unless it falls into one of these categories.

• Time, place and manner restrictions: content-neutral rules about when, where and how speech happens, such as no amplified sound in a residential area at midnight or permits for parades. They must apply to all messages equally and leave other ways to communicate.
• Defamation: false statements that damage someone's reputation. Libel is written; slander is spoken. Public officials must prove “actual malice,” meaning the speaker knew it was false or recklessly disregarded the truth (New York Times v. Sullivan, 1964).
• Obscenity: sexual material that, under the Court's test, appeals to prurient interest, is patently offensive and lacks serious value. It isn't protected.
• Incitement and true threats: speech meant to provoke imminent violence, or serious threats against a person.