U.S. Government and Civics / Unit 4: Civil Liberties and the Bill of Rights
4.3 Freedom of Speech and Press
Notes
Free speech is broadly protected, but not every kind of speech is.
- ***Schenck v. United States* (1919): speech creating a "clear and present danger**" can be punished (opposing the World War I draft).
- ***Brandenburg v. Ohio* (1969): replaced that test. Speech is protected unless it is directed to inciting imminent lawless action** and likely to produce it.
- ***Tinker v. Des Moines* (1969): students wearing black armbands to protest the Vietnam War was protected symbolic speech**. Students do not "shed their constitutional rights... at the schoolhouse gate" unless their speech substantially disrupts school.
- ***Texas v. Johnson* (1989)**: burning the American flag as a protest is protected symbolic speech.
- ***New York Times Co. v. United States* (1971): the "Pentagon Papers" case. Government faces a heavy burden to justify prior restraint** (blocking publication before it happens).
- ***New York Times v. Sullivan* (1964): public officials suing for libel must prove actual malice**.
- Less protected: true threats, incitement, obscenity, defamation (libel is written, slander is spoken).
Practice
Students wear armbands to school to protest a war, without disrupting classes. Which case protects them?
Tinker protects nondisruptive student symbolic speech.
The government tries to stop a newspaper from publishing secret documents about a war. Which case addresses this kind of prior restraint?
The Pentagon Papers case set a heavy presumption against prior restraint.
Under Brandenburg v. Ohio, speech can be punished only when it:
Brandenburg set the modern incitement test.
Ready for more? Take the Unit 4 test.