case studies: when may speech be limited?
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.”
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
Socialist Party of America v. Skokie, 432 U.S. 43 (1977).
decision of the court of appeals held.
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
— 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.
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.
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.
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
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
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.”
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.