3.3 - First Amendment: Freedom of Speech

The Preferred Position Doctrine

• Preferred Position Doctrine: the Court treats free speech as fundamental to liberty itself, meaning without free speech, people aren't truly free.

• High bar for restriction: because speech is so central to liberty, any restriction on it has to be extremely important and truly necessary. The Court leans toward protecting speech whenever it can.

Types of protected speech

• Symbolic Speech: nonverbal action that communicates an idea or belief, like signs, symbols, armbands, or other actions. It's constitutionally protected.
• Tinker v. Des Moines Independent Community School District (1969): in December 1965, students in Des Moines, Iowa wore black armbands to school to protest the Vietnam War and were suspended under a ban the school made right before the protest. The Court ruled 7-2 that the armbands were protected symbolic speech.
• Holding: students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Justice Fortas). A public school can only limit student speech if it would substantially disrupt the school, not just because officials worry it might cause trouble.
• Why it matters: it's the main case for symbolic speech, and it shows how the Court balances individual freedom against order in schools (Topic 3.6).
• Other protected symbolic acts include controversial ones like burning the American flag.

• Hate Speech: also protected. The Court has upheld the right of groups to make racist or derogatory statements.
• Important distinction: protecting speech doesn't mean endorsing it. The government just can't ban it. Private citizens can still find it repugnant, and a person can still be fired by a private employer for what they say.

• Political Spending: in Citizens United v. FEC (2010), the Court ruled 5-4 that spending money on political messages is a form of protected speech, including spending by corporations, unions, and other associations. The government can't ban their independent spending on elections, though they still can't give money directly to a candidate's campaign (more in Topic 5.11).

Restrictions and Unprotected Speech

• Time, Place, and Manner Restrictions: rules about when, where, or how speech can happen. You have the right to speak, but the setting can still be regulated.
• Examples: limits on what time of day an event can be held, where it can be held, and how loud it can be (noise limits).
• These rules have to be content-neutral, meaning they apply the same way no matter what message is being expressed.

• Reasoning: Justice Holmes wrote that free speech wouldn't protect a man falsely shouting fire in a theater and causing a panic. Whether speech is protected depends on the circumstances, and in wartime, speech that would be fine in peacetime can be limited.

• Why it matters: it established that free speech isn't absolute and that the government can limit speech to protect public safety and order (EK 3.3.A.2.iv).

• Modern update: the "clear and present danger" test isn't used anymore. The modern standard, from Brandenburg v. Ohio (not a required case), only allows restricting speech that's likely to cause imminent lawless action, meaning something illegal is about to happen right away.

Categories of unprotected speech

• Defamation: false statements that harm another person's reputation. It comes in two forms, libel and slander. Public officials and public figures have a harder time winning: they have to prove the speaker knew the statement was false or recklessly ignored whether it was true.

• Libel: a written lie about someone.

• Slander: a spoken lie about someone.

• Obscenity: can be regulated, restricted, or banned outright.
• Obscenity means sexual material that's clearly offensive by community standards and has no serious literary, artistic, political, or scientific value (the test from Miller v. California, 1973, not a required case).
• Offensive speech that isn't obscene, like profanity, is mostly protected. But the government can limit it in some settings, like broadcast TV and radio during hours when kids may be watching, or in public schools.

• Speech that incites imminent lawless action.

Big picture