Homework : #4 for tomorrow

1. FrontPage: Do we have absolute freedom of speech? Explain. Homework: #4 for tomorrow

2. First Amendment Freedoms: Speech, Press and Assembly

3. The First Amendment • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. • Never interpreted to mean government can’t abridge any speech, publishing or assembly… • What counts as speech or the press today? • What are some current examples of “speech” or the press that are banned? • What kinds of assemblies could be prohibited?

4. Infringing on the Freedom of Speech and Press 4.3 • During wartime or other events in American history, speech and the press have been greatly curtailed. • Alien/Sedition Acts, Civil War, WWI • Over the years, the Court has developed several “tests” to determine whether speech/press could be censored. • Clear and Present Danger test • “Fire in a crowded theatre” – not what the case was about... • Schenk vs. US • Incitement Test • Likely to produce imminent lawless action • Brandenburg vs. Ohio

5. 4.3 Protected and Unprotected Speech and Press • Protected Speech • Prior restraint – Pentagon Papers case • Symbolic speech – Texas vs. Johnson • Free Speech zones – imply that other areas are not? • Unprotected speech • Hate speech – when it intimidates or threatens • Libel and Slander – New York Times vs. Sullivan • Fighting words – similar to incitement • Obscenity – community standards usually prevail; tough to define

6. Significant Free Speech/Press cases • New York Times vs. US • Pentagon Papers case: US could not prevent publication of confidential military documents • Texas vs Johnson – • flag burning is speech (symbolic speech) • Tinker vs. Des Moines – • black armbands in school; Court maintains students speech rights; “students do not surrender their rights at the schoolhouse gate • Gitlow vs. New York – • incorporated speech part of 1st • Brandenberg vs. Ohio – • KKK Leader and incitement test • Schenk vs. US – • Clear and present danger • Citizens United and McCutcheon • Free speech and campaign finance cases; independent expenditures and personal aggregate contribution limits

7. Morse vs. Frederick • At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. • Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs • The District Court found no constitutional violation and ruled in favor of Morse. • The court held that even if there were a violation, the principal had qualified immunity from lawsuit. • The U.S. Court of Appeals for the Ninth Circuit reversed. • Citing Tinker, because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional.

8. Does the 1st amendment permit schools to restrict speech dealing with drug use? • Yes. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. • The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. • In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. • The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]."

9. What does “freedom of the press” really mean? Could it mean… • A publisher cannot refuse to print your ideas if you submit them? • Journalists do not have to identify their sources of information? • The government must provide the appropriate tools so that anyone can publish their ideas if they cannot afford to? • The press can be forced to provide equal time (or space) to all sides in a debate? • You can publish the work of another person without their permission? • The government cannot prevent the publication of any information? • Why does the government sometimes have to limit what information the press can have? • Why might the government want to prevent the press from running a story

11. Snyder vs. Phelps • Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? • Yes. In an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral for a military service member from liability. • "Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern." And in this specific case, the judges determined, the words on Westboro's signs indeed dealt with "matters of public import" and are thus protected by the First Amendment. • The signs highlight issues like "the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy."

12. McCutcheon vs. FEC