Answers, case studies: when may speech be limited?

Case 1 This case, which involved the National Socialist Party of America and the Village of Skokie (a suburb of Chicago), generated rulings in both Illinois state and federal courts. The Illinois Supreme Court, by a 6-to-1 margin, held that displaying swastikas was a form of symbolic speech protected by the First Amendment. The court further held that the “fighting words” doctrine developed by the Supreme Court did not permit “prior restraint” of the Nazis’ speech because advance notice of the march gave citizens the option of avoiding face-to-face insults. Such prior restraint to prevent violence, which the court admitted was a possibility, amounted to a “heckler’s veto.”

A month later, a federal district judge ruled that Skokie’s ordinances were unconstitutional, holding that not only did the ordinances censor certain kinds of speech, they provided for censorship on the basis of what might be said, rather than what was actually said. The judge said, “The ability of American society to tolerate the advocacy even of the hateful doctrines espoused by the plaintiffs without abandoning its commitment to freedom of speech and assembly is perhaps the best protection we have against the establishment of any Nazi-type regime in this country.” This decision was upheld by the court of appeals. When the Supreme Court refused to hear National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). The decision of the court of appeals held.


Case 2 In the case of the United States v. O’Brien, the Supreme Court ruled 8 to 1 against the protesters. The Court held that Congress had the authority to raise armies and could therefore require that Selective Service registration certificates (draft cards) be handled in particular ways. The military purposes of the draft law outweighed David O’Brien’s right to expression through symbolic speech (i.e., burning of his draft card). He had alternative ways to express himself that did not involve violating a valid law that prohibited destroying the card.


Case 3 In this case, Pruneyard Shopping Center v. Robins (1980), the court ruled that Robins’ manner of speech was orderly and the activity was conducted in the common public area of the mall. Since the California Constitution protected “speech and petitioning, reasonably exercised, in shopping centers even when the shopping centers are privately owned,” the time, place, and manner test was not violated and the speech was protected.

This case affirms the legal principle that state and local governments may give their citizens more free-speech rights than are accorded them by the First Amendment and the federal constitution.


Case 4 In this 1989 case, Sable Communications of California v. FCC and Thornburgh, the Supreme Court said that the government could ban “obscene” communications but not “indecent” communications. While the Supreme Court agreed that preventing children from hearing indecent messages was a valid goal, it did not think this goal justified making indecent communications illegal. While stopping “indecent” speech would protect children, it would also unconstitutionally deny adults access to protected “indecent” speech. The Supreme Court and other courts have cited Sable to rule unconstitutional federal laws setting limits on Internet expression.


Case 5 The Court ruled in McIntyre v. Ohio Elections Commission (1995) that Ohio’s ban on anonymous elections literature was too broad to achieve the purpose that it was intended to achieve — protecting voters and candidates from false, misleading or libelous statements. While such a state interest might be compelling, the remedy used by the state was too broad. The court stated, “Anonymous pamphleteering is … an honorable tradition of advocacy and of dissent” and held that McIntyre’s speech was protected.


Case 6 — Forbes lost in district court but won on appeal. AETC appealed to the Supreme Court, where the case was argued on October 8, 1997. In a 6-to-3 decision, the court found in favor of AETC since AETC had created a “nonpublic forum” when it selected participants by “objective indications of their popular support” rather than their points of view. Arkansas Ed. Television Comm. v. Forbes determined that public broadcasters can exclude participants from sponsored debates as long as the debates are not public forums. News coverage of the case can be found on


Case 7 — The U.S. Supreme Court ruled in Bethel School District No. 403 v. Fraser that school systems may prohibit the use of vulgar and offensive language at school-sponsored activities or forums. The informal suggestion by teachers not to give the speech was sufficient warning to Fraser. The decision held: “It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board.”

Note that this decision applies only to school-sponsored expression. The Bethel ruling and standard do not apply to individual expression, such as wearing an inscribed pin or a shirt with a message that does not disrupt the school or educational process. The court made it clear in Bethel that it was not overturning Tinker, with the “disruption” standard that applies to individual expression. And that test survived Hazelwood, as well.