Freedom of Speech
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1st Amendment States: Congress Shall Make No Law Abridging the Freedom of Speech
- Must Balance
- Will of majority
- Rights of minorities
- John Stuart Mill (On Liberty)
- Liberty involves choices
- Choices require information
- There is a need for a marketplace of ideas
- Seemingly absurd ideas may prove useful
- More speech may reveal the flaws in ideas
- Free speech is a check on tyranny
Advocacy of Unpopular Ideas
- Sedition Act (1798-1801)
- Prohibited "false, scandalous, and malicious statements against government"
- Intended to stifle Republican opposition
- WWI--Sedition Act (1918)
- Prohibited "disloyal, profane, scurrilous, or abusive language against govt."
- Upheld by Court: "Clear and present danger" test, such as shouting fire in a theater
- Cold War (1950s)
- Time of concerns about communist conspiracy
- McCarthy Hearings
- Lives ruined because of unproven assertions
- McCarthy finally censured
- Vietnam protests--virtually anything allowed
- Today
- Court test: "Will the speech incite imminent lawless action?"
Obscenity
- Prohibited prior to Constitution--state laws against blasphemy
- Must find a balance
- Sensitivity of some
- Free expression of others
- Problem is definition--Stewart: "I can't define obscene material, but I know it when I see it"
- Court test--obscene if :
- Appeals to prurient interest in sex
- Shows sexual conduct in an offensive way
- No literary, artistic, political, or scientific value
- Decisions should be based on local values
- Exceptions
- Much more restrictive if children are involved
- Communities have right to specify locations for adult materials
- Whether or not obscene depends on opportunity to avoid encountering the material
- No prior restraint--materials not banned before publication
Symbolic Speech
- Symbols can be substitutes for speech---KKK emblem, swastika
- Desecration of the flag
- USU’s Professor Chisholm burned the flag and was fired from Indiana State University in 1960s
- Greg Johnson (1984)
- Protesting Reagan Administration policies--burned the flag
- Tried and convicted
- Conviction overturned by Supreme Court: “Can’t prohibit an idea because it is offensive”
- Congressional Action
- Law passed in 1989 which made flag burning illegal
- Supreme Court overturned the law: “Punishing desecration dilutes the freedom that makes the emblem meaningful”
- A Constitutional Amendment prohibiting flag burning has been proposed--Orrin Hatch one of chief supporters
Copyright 2008,
by the Contributing Authors.
Cite/attribute Resource.
factpetersen. (2007, October 29). Freedom of Speech. Retrieved November 23, 2009, from Free Online Course Materials — USU OpenCourseWare Web site: http://ocw.usu.edu/university-studies/u-s-institutions/freedom-of-speech.
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