Freedom of SpeechAMERICAN GOVERNMENT

Civil Liberties Civil liberties are:

◦ Individual legal and Constitutional protections against the government◦ American civil liberties are protected by the Bill of Rights

State v. Federal through Barron v. Baltimore (1833)

Originally, the protections of the Bill of Rights were only available at the Federal level.◦ There was no protection from states suppressing the freedoms guaranteed by the Bill of Rights◦ This concept is supported by the case of Barron v Baltimore

◦ Barron had sued Baltimore for destroying his wharf during the creation of a public streets◦ He felt that under the 5th amendment’s eminent domain clause he should be compensated for the destruction of his business

The Decision The Supreme Court ruled that only the national government, not state or city governments, were responsible for adhering to the Bill of Rights

◦ The rights guaranteed by the Bill of Rights were extended to the states through the passage of the 14th amendment

◦ We refer to this as the incorporation doctrine

Forms of Free Speech While free speech is guaranteed by the 1st amendment, there are certain restrictions to this right

◦ A person can be punished for:◦ Using obscene language◦ Using words in a way that causes another person to commit a crime (i.e. to riot or to desert the military)◦ To commit sedition◦ Committing slander and libel◦ Violating a gag order

◦ Gag orders ore issued in high profile court cases and are used as a way of protecting an individuals right to due process

◦ Free speech is also limited when it contradicts the right to a fair trial guaranteed by the 6th amendment

Libel and Slander Libel

◦ A published false statement that is damaging to a person's reputation; a written defamation

Slander◦ The action or crime of making a false spoken statement damaging to a person's reputation

Schenck v. United States (1918): In the court case of Schenck v. United States, Schenck sent mailers telling people that the draft was wrong and urged people to not submit to the governments intimidation

◦ Schenck pushed for social change through peaceful action only and promoted the idea that change should brought about through demonstrations and petitions

◦ Schenck was arrested for violation of the Espionage Act because authorities asserted that he was attempting to cause insubordination in the military

http://www.oyez.org/cases/1901-1939/1918/1918_437

The Decision In a unanimous decision, it was concluded that Schenck’s arrest was constitutional

◦ The decision stated that an individuals statement’s must be evaluated based upon the context of the event’s that are taking place when the statement is made

◦ The Court stated that Schenck’s statements at this time posed a clear and present danger to the United States military

Roth v. United States (1956) In the court case of Roth v. United States, Roth was accused of breaking a Federal obscenity statute by mailing out obscene circulars and books

◦ These circulars and books contained literary erotica and nude photography

This court case was also combined with Alberts v California

http://www.oyez.org/cases/1950-1959/1956/1956_582

The Decision In a 6-3 decision it was determined that obscenity was not “within the area of Constitutionally protected speech or press”

The court then developed a test that help determine what would be constituted as obscenity

Obscenity was defined as:◦ Something that the average person, applying contemporary standards, was against◦ If it considered to be utterly without redeeming social importance◦ If the dominant theme of the material taken as a whole appeals to the prurient interest

Sheppard v. Maxwell (1966) In this case, Dr. Samuel Sheppard was convicted of bludgeoning his pregnant wife to death

◦ The long trial was nationally publicized and was well known◦ Because of the national publicity of the trial, Sheppard claimed that he was not given a fair and

unbiased trial◦ Sheppard used the argument that the news coverage violated his 6th and 14th amendment right to due process

http://www.oyez.org/cases/1960-1969/1965/1965_490

The Decision The Supreme Court agreed with Sheppard and handed down a decision that stated that Sheppard should receive a new trial

◦ This 8-1 decision was based upon the idea that even though freedom of expression should be given great latitude, it should not be so broad as to divert the trial away from is primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting

During the retrial, Sheppard was acquitted of the murder charge◦ It is still unclear who killed Dr. Sheppard's wife

New York Times CO v. United States (1971)

This case is most famously known as the Pentagon Papers Case◦ The Pentagon Papers are officially known under the document name, United States – Vietnam

Relations, 1945–1967: A Study Prepared by the Department of Defense

In this case, documents had been stolen from the State Department discussing strategy used during the Vietnam war

◦ The government tried to stop the publication of these documents, stating that the publication would damage national security

http://www.oyez.org/cases/1970-1979/1970/1970_1873

The Decision The court upheld the right of the New York Times to publish these papers

◦ It was held that the government did not prove that the publication of the Pentagon Papers would endanger national security

◦ It also further weakened the governments ability to participate in prior restraint ◦ Prior restraint is an attempt to prevent publication or broadcast of any statement◦ This is considered to be an unconstitutional restraint on free speech and free press

Texas v. Johnson (1989) In the court case of Texas v. Johnson, Gregory Lee Johnson burned an American flag as a way of protesting the Reagan administration

◦ This was done in front of the Dallas City Hall◦ Johnson was sentenced to one year in jail and was assessed a $2,000 fine for the desecration of a

venerated object.

http://www.oyez.org/cases/1980-1989/1988/1988_88_155

The Decision According to the court, burning the American flag as an act of political protest is expressive conduct protected by the 1st and 14th amendment

◦ In a 5-4 decision it was ruled that a law forbidding the “desecration of a venerated object” forbade freedoms of expression held up by the 1st and 14th amendment.◦ This is known as symbolic speech

New York Times v. Sullivan (1963)

In the court case of New York Times v. Sullivan, Sullivan sued the New York Times for allowing patrons to take out a full page ad in the New York Times alleging that Alabama’s arrest of Rev. Martin Luther King Jr. was a campaign to destroy King’s reputation and push black voters to vote for his opponent

◦ Sullivan was not required to prove that he had been harmed because of Alabama libel law◦ Sullivan was awarded $500,000 in the suit

The question then became, was it lawful to award Sullivan that money without making him prove that he had been harmed?

◦ http://www.oyez.org/cases/1960-1969/1963/1963_39

The Decision In a unanimous decision, the Court held that the first amendment protects all statements regarding the actions of public officials

◦ The only exception to this is when actual malice, or explicit knowledge that the statements are false or reckless in regards to truth, are made

◦ With this new standard in place, Sullivan’s case fell apart and he was not awarded any damages

Hazelwood School District v. Kulmeier (1987)

In this court case, students were challenging whether or not a school principal had the right to delete articles from the school newspaper

◦ The principle held that two articles in the newspaper were inappropriate for publication in a school news paper

The question then is, can a principal use prior restraint on student materials

http://www.oyez.org/cases/1970-1979/1971/1971_69_5003/

The Decision In a 5-3 decision, it was found that a principal could legally censor student materials and that it wasn’t a violation of a student’s free speech rights

◦ It was held that this censorship is ok if the actions are “reasonably related to legitimate pedagogical concerns”