US government and civics
Freedom of speech: lesson overview
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.|
|defamation||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.|
|hate speech||Written or spoken communication that belittles a group based on its characteristics, such as race, gender, or sexual orientation.|
|obscenity||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.|
|symbolic speech||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?
Want to join the conversation?
- What would be the limit if hate speech is restricted?(6 votes)
- The limit would be pushing someone to the point to cause harm to other or two the point where it affects their lives gravely.(6 votes)
- Do you think the government should be allowed to restrict certain forms of speech during wartime? Why or why not?
perhaps if because certain speeches could have bad ideas or motives for the people who cause them problems.(3 votes)
- I'm curious could the process of "Selective Incorporation" be explained? I seem to have trouble understanding it to a full.(1 vote)
- When Amendments to the Constitution are implemented by the Supreme Court to the state level, that Amendment is then said to be 'incorporated'. Not all Amendments are automatically applied to the states, meaning they are not automatically incorporated. They are selectively incorporated on a case by case basis to address unconstitutional state statutes. The government has the power to incorporate Amendments at the state level from the expressed Supremacy Clause of the Constitution.(2 votes)
- 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?
He has struggled to define what constitutes obscenity, has maintained restrictions on materials that "to the average person applying contemporary community standards" represent offensive or sexual conduct and lack literary or artistic merit.(1 vote)
- Do you think the government should be allowed to restrict certain forms of speech during wartime?(1 vote)
- Should the First Amendment protect hate speech? Why or why not?
In my opinion I think not because these speeches only offend and curse other organizations or people like that, causing them to argue or fight.(1 vote)
- if the first ammendment did protect hate speech then racsim would be seen diffrently(0 votes)