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Freedom of Speech. What is Free Speech?. Incorporation. Gitlow v. N.Y. (1925): 14 th Amendment’s “due process clause” protects citizens’ fundamental rights (like freedom of speech) from violations by state and local governments as well as by congress.

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Gitlow v. N.Y. (1925): 14th Amendment’s “due process clause” protects citizens’ fundamental rights (like freedom of speech) from violations by state and local governments as well as by congress.

  • Amendment 1: “Congress shall make no law…”
  • Most, but not all, of the rights in the Bill of Rights have, one by one, been ruled to be “incorporated” by the due process clause. Most recently, the right to bear arms(McDonald v. Chicago, 2010)
3 types of speech
3 Types of “Speech”

Pure Speech

  • Most strongly Protected
  • Speech Plus
  • Speech accompanied by actions such as marching, demonstrations, picketing, etc.
  • Subject to restriction that do not apply to pure speech
  • Symbolic Speech
  • Using actions and symbols to express opinions
  • Court decisions most mixed: Burning draft cards not protected; burning the flag is. (Burning the Koran?)
protected not protected
Protected/Not Protected

“Clear and Present Danger” Test

  • Schenck v. U.S. (1919):Speech can be suppressed if there is an imminent threat to society, e.g. falsely shouting “fire!” in a crowded theater.
  • Bad Tendency Doctrine
  • Gitlow v. N.Y. (1925): Speech can be limited when it is likely to lead to something bad happening
  • Today, however, the preferred position doctrine, gives speech precedent over other values.
protected not protected cont
Protected/Not Protected (Cont.)

Prior Restraint

  • Definition: Blocking speech (or press) before it is given
  • Deemed unconstitutional by the Supreme Court (Pentagon Papers)
not protected
Not Protected


  • Not protected, but what is it?
  • In the past, could be mere criticism of gov’t (Alien and Sedition Act).
  • Smith Act (1940): Sedition=Advocacy of violent overthrow of the government
  • Recently, Supreme Court has narrowed definition further. Speech can be prohibited as seditious, only when…
  • There is an imminent danger of an actual overthrow, and
  • People are actually urged to do something, rather than merely believe something
not protected cont
Not Protected (Cont.)

Defamatory Speech

  • Definition: false speech that damages a persons reputation
  • “Slander” if spoken, “libel” if written.
  • “Fighting Word”
  • Definition: “[Words] that by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
not protected cont1
Not Protected (Cont.)


  • Not protected, but difficult to define
  • “I know it when I see it” –Justice Potter Stewart
  • Student Speech
  • Not protected when it disrupts education
  • Tinker v. Des Moines School District (1969)
  • Bethel School District v. Fraser (1986)
  • Hazelwood School District v. Kuhlmeier (1988)