2.1 Freedom of speech

The First Amendment is the bedrock of free expression in America. It protects various forms of speech, religious practice, press freedom, assembly, and petitioning the government. These fundamental rights shape democracy and individual liberties in the United States.

Free speech encompasses more than just verbal communication. It covers political discourse, symbolic actions, commercial advertising, and more. However, some categories like obscenity and true threats receive limited protection. Courts balance free expression with other societal interests.

First Amendment protection

• Establishes fundamental rights of expression in the United States, serving as a cornerstone of civil liberties
• Protects various forms of speech, religious practice, press freedom, assembly, and petitioning the government
• Plays a crucial role in shaping American democracy and individual freedoms

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• "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"
• Prohibits government interference with five fundamental freedoms (religion, speech, press, assembly, petition)
• Uses concise language to establish broad protections for expressive activities

Historical context

• Ratified in 1791 as part of the Bill of Rights, addressing concerns about potential government overreach
• Influenced by Enlightenment ideals and colonial experiences with British censorship
• Drafted by James Madison in response to calls for explicit protections of individual liberties
• Reflected ongoing debates about the proper balance between federal power and personal freedoms

Incorporation to states

• Initially applied only to federal government actions
• Gitlow v. New York (1925) began process of incorporating First Amendment protections to state governments
• Gradual incorporation through 14th Amendment's Due Process Clause
• Near v. Minnesota (1931) applied freedom of press to states
• Cantwell v. Connecticut (1940) incorporated free exercise of religion

Types of protected speech

• Encompasses various forms of expression beyond verbal communication
• Protects diverse methods of conveying ideas and opinions in a democratic society
• Recognizes importance of different types of speech for personal, political, and economic discourse

Political speech

• Considered core type of protected speech, central to democratic processes
• Includes criticism of government, advocacy for policy changes, and electoral campaigning
• Receives highest level of First Amendment protection (New York Times v. Sullivan)
• Covers activities like distributing leaflets, holding rallies, and engaging in political debates
• Protection extends to controversial or unpopular political views (Brandenburg v. Ohio)

Symbolic speech

• Non-verbal actions intended to convey a message (flag burning, arm bands)
• United States v. O'Brien (1968) established test for regulating symbolic speech
• Tinker v. Des Moines (1969) protected students wearing black armbands to protest Vietnam War
• Texas v. Johnson (1989) struck down laws prohibiting flag desecration as unconstitutional
• Balances expressive conduct with government interests in regulating behavior

Commercial speech

• Advertising and other speech proposing commercial transactions
• Initially received less protection, but gradually gained more First Amendment coverage
• Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) established four-part test for commercial speech regulation
• Protects consumers' right to receive truthful information about products and services
• Allows some government regulation to prevent false or misleading advertising

Unprotected speech categories

• Specific types of speech that receive limited or no First Amendment protection
• Based on historical traditions and compelling government interests
• Courts apply strict scrutiny when evaluating restrictions on these categories
• Boundaries of unprotected speech categories continue to evolve through case law

Obscenity

• Material deemed prurient, patently offensive, and lacking serious value
• Miller v. California (1973) established three-part test for defining obscenity
• Local community standards apply when determining what qualifies as obscene
• Excludes mere nudity or sexual content that has artistic, literary, or scientific value
• Child pornography categorically unprotected due to compelling interest in protecting minors

Fighting words

• Speech likely to provoke immediate violent reaction from the average person
• Chaplinsky v. New Hampshire (1942) established fighting words doctrine
• Narrowly defined to include face-to-face insults likely to cause a breach of the peace
• Does not cover general offensive language or political insults
• Courts have increasingly limited the scope of the fighting words exception

True threats

• Statements that communicate serious intent to commit unlawful violence
• Watts v. United States (1969) distinguished protected hyperbole from true threats
• Considers context, specificity, and likelihood of action when evaluating threats
• Includes intimidation and some forms of harassment
• Balances free speech rights with public safety concerns

Defamation

• False statements of fact that harm someone's reputation
• Public figures must prove "actual malice" to win defamation cases (New York Times v. Sullivan)
• Private individuals have lower burden of proof for defamation claims
• Distinguishes between statements of fact and protected opinions
• Truth serves as an absolute defense against defamation claims

Time, place, manner restrictions

• Government regulations on when, where, and how speech can occur
• Must be content-neutral, narrowly tailored, and leave open alternative channels of communication
• Balances free speech rights with other legitimate government interests
• Allows reasonable regulation of expressive activities in public spaces

Content-neutral vs content-based

• Content-neutral restrictions apply regardless of the message being expressed
• Content-based restrictions target specific viewpoints or subject matter
• Strict scrutiny applies to content-based restrictions, intermediate scrutiny for content-neutral
• Ward v. Rock Against Racism (1989) upheld content-neutral sound restrictions in public parks
• Reed v. Town of Gilbert (2015) clarified test for determining content neutrality

Public forum doctrine

• Classifies government property based on its traditional use for expressive activities
• Traditional public forums (streets, parks) receive highest level of speech protection
• Designated public forums created by government for expressive use
• Limited public forums opened for specific types of speech or speakers
• Non-public forums have fewest speech protections (military bases, prisons)

Prior restraint

• Government attempts to censor speech before it occurs
• Heavy presumption against constitutionality of prior restraints
• Near v. Minnesota (1931) struck down law allowing prior restraint of "malicious" publications
• New York Times v. United States (1971) rejected prior restraint of Pentagon Papers publication
• Narrow exceptions exist for national security, obscenity, and incitement to violence

Free speech in schools

• Balances students' free speech rights with schools' educational mission
• Recognizes special characteristics of school environment
• Protects student expression while allowing reasonable regulation to maintain order
• Evolving area of law as technology changes how students communicate

Tinker test

• Established in Tinker v. Des Moines (1969) case involving student anti-war armbands
• Students do not "shed their constitutional rights at the schoolhouse gate"
• Schools may restrict speech that causes substantial disruption or infringes on others' rights
• Applies to both on-campus and some off-campus student speech
• Requires schools to show actual or reasonably foreseeable disruption

Student expression rights

• Protects student newspapers, literary magazines, and other school-sponsored publications
• Hazelwood v. Kuhlmeier (1988) allowed schools to censor school-sponsored speech for legitimate pedagogical reasons
• Morse v. Frederick (2007) upheld school's right to restrict pro-drug messages at school events
• Covers symbolic speech like clothing choices and silent protests
• Extends to some off-campus speech that impacts the school environment

Limitations on school authority

• Schools cannot restrict speech based solely on disagreement with the message
• Must show connection between speech and disruption of educational process
• Cannot discriminate based on viewpoint when creating limited public forums in schools
• Bethel School District v. Fraser (1986) allowed discipline for lewd speech at school assembly
• Mahanoy Area School District v. B.L. (2021) limited school authority over off-campus social media posts

Free speech online

• Applies First Amendment principles to digital communication platforms
• Addresses unique challenges of regulating speech in cyberspace
• Balances free expression with concerns about harassment, misinformation, and illegal content
• Evolving area of law as technology and online communication methods advance

Internet as public forum

• Reno v. ACLU (1997) established high level of First Amendment protection for online speech
• Packingham v. North Carolina (2017) recognized importance of social media for free expression
• Debate over whether social media platforms should be treated as public forums
• Considers how traditional public forum doctrine applies to virtual spaces
• Addresses government use of social media for official communications

Social media platforms

• Private companies not directly bound by First Amendment, but influential in shaping online discourse
• Section 230 of Communications Decency Act provides liability protection for user-generated content
• Debate over platform content moderation policies and potential bias
• Concerns about market concentration and impact on free speech ecosystem
• Emerging issues with algorithmic content curation and amplification

Cyberbullying concerns

• Attempts to balance protecting victims with preserving free speech rights
• Challenges in drafting narrowly tailored laws that address online harassment
• State cyberbullying laws must avoid overbreadth and vagueness
• Consideration of off-campus student speech that impacts school environment
• Tension between anonymity rights and accountability for online behavior

Campaign finance as speech

• Treats political spending as form of protected speech under First Amendment
• Controversial area balancing free expression with concerns about corruption and political equality
• Significant impact on electoral processes and campaign strategies
• Ongoing debates about proper role of money in politics

Citizens United decision

• Citizens United v. FEC (2010) struck down restrictions on independent political expenditures by corporations and unions
• Held that First Amendment prohibits government from restricting independent political expenditures
• Overturned portions of McCain-Feingold campaign finance law
• Based on view that corporations have free speech rights similar to individuals
• Led to rise of Super PACs and increased outside spending in elections

Corporate speech rights

• Extends First Amendment protections to corporate political speech
• Builds on earlier cases recognizing some corporate free speech rights (First National Bank of Boston v. Bellotti)
• Allows corporations to spend unlimited amounts on independent political expenditures
• Does not permit direct corporate contributions to candidates or parties
• Ongoing debate about extent of corporate personhood for First Amendment purposes

Disclosure requirements

• Campaign finance laws requiring disclosure of political spending generally upheld
• Buckley v. Valeo (1976) recognized government interest in providing electorate with information
• Citizens United upheld disclosure requirements while striking down spending limits
• Debate over dark money and attempts to require disclosure of donors to politically active nonprofits
• Balances transparency interests with potential chilling effect on political speech

Compelled speech issues

• Protects against government forcing individuals to express messages they disagree with
• Recognizes that First Amendment covers both right to speak and right not to speak
• Balances individual autonomy with government interests in mandating certain disclosures
• Applies in various contexts including education, professional regulation, and commercial speech

Government-mandated speech

• West Virginia State Board of Education v. Barnette (1943) struck down mandatory flag salute in schools
• Wooley v. Maynard (1977) upheld right to cover state motto on license plate
• National Institute of Family and Life Advocates v. Becerra (2018) limited required disclosures for crisis pregnancy centers
• Considers whether compelled factual disclosures differ from ideological messages
• Analyzes government interest and narrow tailoring of mandated speech requirements

Freedom of association

• Protects right to join or not join groups for expressive purposes
• Boy Scouts of America v. Dale (2000) upheld organization's right to exclude gay scoutmasters
• Janus v. AFSCME (2018) struck down mandatory public sector union fees as compelled speech
• Balances associational rights with anti-discrimination laws and labor regulations
• Considers extent to which membership policies are central to group's expressive purpose

Religious objections

• Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) addressed tension between religious objections and anti-discrimination laws
• Fulton v. City of Philadelphia (2021) upheld Catholic agency's right to exclude same-sex couples from foster care program
• Balances free exercise rights with compelling government interests in preventing discrimination
• Considers whether providing services constitutes expressive conduct protected by First Amendment
• Ongoing debates about scope of religious exemptions from generally applicable laws

Hate speech debates

• Examines tension between protecting offensive speech and preventing harm to marginalized groups
• Considers whether hate speech should be treated as separate category of unprotected speech
• Balances free expression principles with concerns about discrimination and social cohesion
• Addresses challenges of defining hate speech without engaging in viewpoint discrimination

Constitutional protection

• U.S. generally provides strong protection for hate speech under First Amendment
• R.A.V. v. City of St. Paul (1992) struck down ordinance prohibiting bias-motivated disorderly conduct
• Virginia v. Black (2003) allowed ban on cross burning with intent to intimidate
• Distinguishes between protected offensive speech and unprotected true threats or incitement
• Contrasts with many other democracies that restrict hate speech more extensively

Campus speech codes

• Many universities adopted hate speech codes in 1980s and 1990s
• Courts generally struck down broad campus speech codes as unconstitutional
• Doe v. University of Michigan (1989) invalidated policy prohibiting stigmatizing speech
• Ongoing debates about balancing inclusive learning environments with free speech principles
• Recent controversies over invited speakers and protests on college campuses

International comparisons

• Most democracies place greater restrictions on hate speech than U.S.
• Many European countries criminalize Holocaust denial and incitement to racial hatred
• Canada's Criminal Code prohibits public incitement of hatred against identifiable groups
• Article 20 of International Covenant on Civil and Political Rights requires banning advocacy of hatred
• Debate over whether U.S. approach or international norms better protect minority rights and social cohesion

Freedom of press

• Protects news media's ability to gather and disseminate information
• Serves vital role in informing public and holding government accountable
• Includes both institutional press and individual journalists/bloggers
• Balances press freedom with other interests like national security and individual privacy

Journalist protections

• No special constitutional status for journalists beyond general First Amendment rights
• Most states have shield laws protecting confidential sources
• Debate over federal shield law to protect journalists from being forced to reveal sources
• Branzburg v. Hayes (1972) found no First Amendment right for reporters to refuse grand jury testimony
• Ongoing issues with surveillance of journalists and seizure of records

Confidential sources

• Use of anonymous sources crucial for investigative journalism
• Courts generally recognize importance of source confidentiality
• Some limited situations where journalists may be compelled to reveal sources
• Balances newsgathering interests with judicial fact-finding and law enforcement needs
• State shield laws vary in scope of protection for confidential sources

National security concerns

• New York Times v. United States (1971) set high bar for prior restraint on national security grounds
• Ongoing tensions between press freedom and government secrecy
• Debate over prosecution of leakers and treatment of whistleblowers
• Concerns about chilling effect of surveillance on journalists and sources
• Balances public's right to know with legitimate national security interests

Current challenges

• Examines emerging issues in free speech jurisprudence and public discourse
• Addresses impact of technological changes on traditional First Amendment doctrines
• Considers new threats to free expression in digital age
• Explores tensions between competing rights and values in pluralistic society

Fake news vs free speech

• Concerns about spread of misinformation and disinformation online
• Challenges in regulating false speech without infringing on protected expression
• Debate over platform responsibility for moderating user-generated content
• Tension between combating falsehoods and protecting robust marketplace of ideas
• Consideration of media literacy education as alternative to content regulation

Cancel culture debates

• Controversies over social consequences for offensive or controversial speech
• Tension between accountability and concerns about chilling effect on expression
• Distinguishes between government censorship and private/social sanctions
• Debates over role of social media in amplifying outrage and facilitating boycotts
• Consideration of power dynamics and whose speech is most impacted by cancel culture

Technological impacts

• Examines how new technologies challenge traditional free speech frameworks
• Considers application of public forum doctrine to government social media accounts
• Addresses free speech issues related to artificial intelligence and algorithmic curation
• Explores tensions between online anonymity and accountability
• Debates over regulation of deepfakes and other manipulated media