of Freedom of Speech
Does the First Amendment mean anyone can
say anything at any time? No.
The Supreme Court has rejected an interpretation
of speech without limits.
the First Amendment has such strong language, we begin with the
presumption that speech is protected. Over the years, the courts
have decided that a few other public interests — for example, national
security, justice or personal safety — override freedom of speech.
There are no simple rules for determining when speech should be
limited, but there are some general tests that help.
and Present Danger
this act of speech create a dangerous situation? The First Amendment
does not protect statements that are uttered to provoke violence
or incite illegal action.
Holmes, speaking for the unanimous Supreme Court, stated, “The question
in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has
a right to prevent.”
something said face-to-face that would incite immediate violence?
Chaplinsky v. New Hampshire, the Supreme Court stated that
the “English language has a number of words and expressions which
by general consent [are] ‘fighting words’ when said without a disarming
smile. … Such words, as ordinary men know, are likely to cause a
fight.” The court determined that the New Hampshire statute in question
“did no more than prohibit the face-to-face words plainly likely
to cause a breach of the peace by the addressee, words whose speaking
constitute a breach of the peace by the speaker — including ‘classical
fighting words,’ words in current use less ‘classical’ but equally
likely to cause violence, and other disorderly words, including
profanity, obscenity and threats.” Jurisdictions may write statutes
to punish verbal acts if the statutes are “carefully drawn so as
not unduly to impair liberty of expression.”
is the Fighting Words Doctrine?
the statement false, or put in a context that makes true statements
misleading? You do not have a constitutional right to tell lies
that damage or defame the reputation of a person or organization.
June 1973 in Miller v. California, the Supreme Court held
in a 5-to-4 decision that obscene materials do not enjoy First Amendment
Miller v. California (1973), the court refined the definition
of “obscenity” established in Roth v. United States (1957).
It also rejected the “utterly without redeeming social value” test
of Memoirs v. Massachusetts.
the three-part Miller test, three questions must receive affirmative
responses for material to be considered “obscene”:
the average person, applying the contemporary community standards,
viewing the work as a whole, find the work appeals to the prurient
- Does the work depict or describe sexual
conduct in a patently offensive way?
- Does the work taken as a whole lack serious
literary, artistic, political, or scientific value?
One must distinguish
“obscene” material, speech not protected by the First Amendment,
from “indecent” material, speech protected for adults but not for
children. The Supreme Court also ruled that “higher standards” may
be established to protect minors from exposure to indecent material
over the airwaves. In FCC
v. Pacifica Foundation the court “recognized an interest
in protecting minors from exposure to vulgar and offensive spoken
with Other Legitimate Social or Governmental Interests
the speech conflict with other compelling interests? For example,
in times of war, there may be reasons to restrict First Amendment
rights because of conflicts with national security.
ensure a fair trial without disclosure of prejudicial information
before or during a trial, a judge may place a “gag” order on participants
in the trial, including attorneys. Placing prior restraint upon
the media usually is unconstitutional. In Nebraska
Press Association v. Stuart (1976), the
Supreme Court established three criteria that must be met before
a judge can issue a gag order and restrain the media during a trial.
Place, and Manner
regulations of expression are content-neutral. A question to ask:
Did the expression occur at a time or place, or did the speaker
use a method of communicating, that interferes with a legitimate
government interest? For example, distribution of information should
not impede the flow of traffic or create excessive noise levels
at certain times and in certain places.