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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?"


  • 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 January 08, 2011, from Free Online Course Materials — USU OpenCourseWare Web site: This work is licensed under a Creative Commons License Creative Commons License