7.1 Free speech doctrines and limitations

The First Amendment's protection of free speech is a cornerstone of American democracy. It safeguards political discourse, artistic expression, and even commercial speech, while also defining categories of unprotected speech like incitement and obscenity.

Free speech rights extend to various contexts, including schools, public employment, and campaign finance. Courts use balancing tests to weigh speech rights against other interests, applying different levels of scrutiny based on the nature of the restriction and the speech involved.

Constitutional Foundations and Societal Importance

Importance of free speech

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• First Amendment protection safeguards freedom of speech prohibits government censorship (Pentagon Papers case)
• Rationale promotes self-governance fosters informed citizenry enables truth-seeking through marketplace of ideas (New York Times v. Sullivan)
• Historical context reacted to British censorship led to controversy over Sedition Act of 1798
• Incorporation applied First Amendment to states through Gitlow v. New York (1925) expanded speech protections

Protected vs unprotected speech

• Protected speech encompasses political discourse artistic expression commercial speech with limitations (Citizens United v. FEC)
• Unprotected speech includes:
  1. Incitement evaluated using Brandenburg test assesses imminent lawless action
  2. Fighting words defined in Chaplinsky v. New Hampshire (1942) as words likely to provoke violent reaction
  3. True threats involve serious expressions of intent to commit violence
  4. Obscenity determined by Miller test considers prurient interest offensiveness lack of serious value
• Intermediate categories:
  • Commercial speech receives limited protection (Central Hudson test)
  • Defamation requires higher standard for public figures (actual malice)

Free speech in various contexts

• Schools:
  • Tinker v. Des Moines (1969) established substantial disruption test for student speech
  • Hazelwood v. Kuhlmeier (1988) allowed regulation of school-sponsored speech
• Public employees:
  • Pickering v. Board of Education (1968) created balancing test weighing employee speech rights against government interests
  • Garcetti v. Ceballos (2006) limited protection for speech made pursuant to official duties
• Campaign finance:
  • Buckley v. Valeo (1976) equated money with speech in political campaigns
  • Citizens United v. FEC (2010) extended First Amendment protections to corporate political spending
• Time, place, manner restrictions allow content-neutral regulations in public forums (Ward v. Rock Against Racism)

Balancing speech rights and interests

• Clear and present danger test originated in Schenck v. United States (1919) evolved into modern incitement standard
• National security concerns balanced against press freedom in Pentagon Papers case (New York Times Co. v. United States, 1971)
• Hate speech regulations face strict scrutiny illustrated by R.A.V. v. City of St. Paul (1992)
• Privacy interests weighed against free speech in cases like Snyder v. Phelps (2011) involving funeral protests
• Government regulation of professional speech addressed in Gentile v. State Bar of Nevada (1991) for attorneys
• Balancing tests:
  • Strict scrutiny applied to content-based restrictions requires compelling state interest narrow tailoring
  • Intermediate scrutiny used for content-neutral restrictions must serve substantial government interest
• Emerging issues include online speech regulation on social media platforms and free speech implications of AI-generated content