Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 3: Speech Distinctions
This chapter adopts a novel approach to treat a number of distinct speech topics of interest to
communication students. The purpose is to emphasize the societal interests that compete with,
and sometimes overcome, First Amendment interests.
A central thread of the chapter is society’s desire for peace, tranquility, safety, and order.
Controversial speech, whether political, religious, or ideological, is perceived by many,
including many members of the Court, as a threat to these important societal concerns. Of
primary interest here is the almost inevitable effect of ad hoc balancing to place greater weight
on societal interests rather than on the individual interests of a single speaker. Thus, this chapter
should highlight the strong potential for ad hoc balancing of competing rights to lead to
silencing of disfavored speech.
After discarding the overly suppressive “bad tendency” test early in the 20th century, courts used
the “clear and present danger” test to determine the proper balance between freedom of speech
and harmful incitement of lawless activity. Under this loose test, courts asked whether the words
used had a tendency to create the kind of danger lawmakers might constitutionally prevent. In
early 20th-century rulings, the Supreme Court used the test in several First Amendment cases
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
and frequently upheld the constitutionality of laws that overtly constrained unpopular political
speech. The test was fine-tuned over the years and eventually evolved into the current
Brandenburg test. Under the Brandenburg incitement test, the Constitution prohibits government
punishment of advocacy of an idea unless the speech is meant to and likely to produce imminent
illegal action.
The Constitution protects the right to express ideas in an offensive manner because effective
speech has both cognitive and emotional contents, but there are limits that are not clearly
defined. The Supreme Court has established fighting words as a disfavored category of speech.
Efforts to regulate such disfavored speech must be well tailored to the government’s objectives.
The Court has suggested that laws that target highly offensive speech are constitutional only if
they are extremely narrowly tailored to address real and demonstrable harms. The Supreme
Court has not established “hate speech” as a specific category of speech. The Court’s most
relevant decisions suggest that attempts to prohibit unpopular or racist speech as a subset of
fighting words will rarely be constitutional. The Supreme Court generally has said the
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Constitution prohibits punishment for vague statements with distant or speculative harms, but in
recent years the Court has developed the concept of “true threats.” This evolving are of the law is
unsettled and unclear, but it appears that when speech threatens or intimidates a specific group or
individual with real harm, that speech might be subject to regulation and punishment. What
constitutes a threat, whether online threats pose more extensive risks, whether artistic expression
limits the harm, etc., were questions raised but unanswered by the Supreme Court in Elonis v.
United States. This lack of clarity may undermine the historical doctrine that merely violent,
disturbing or even highly offensive words and images deserve full First Amendment protection.
Few bright lines or broad precedents exist in this evolving area of First Amendment law.
Government generally may curb the language reaching school children to advance educational
goals, but universities have a greater obligation to afford forums for wide-ranging expression of
opinion on campus. However, several appeals courts recently applied Hazelwood to limit the
extent of free speech on college campuses. Another developing line of cases affirms the authority
of universities to sanction student speech that does not meet professional standards. These
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
rulings blur the once bright-line distinction between permissible limits on speech in public
schools and in universities.
Outline
I. National Security and Tranquility
a. Threats to National Security
II. Evolving Court Tests to Protect Disruptive Speech
a. From a Bad Tendency to a Clear and Present Danger
b. From Clear and Present Danger to Incitement
III. Do Media Incite Harm?
a. Physical Harms
b. Negligence
IV. Can Words Hurt You?
a. Offensive Speech
b. Fighting Words
c. Hate Speech
d. Current Standard
e. Harmful Images
f. Intimidation and Threats
V. Symbolic Speech
a. Burning Speech
VI. Speech in the Schools
a. Public Forum Analysis
b. The Tinker Test
c. The Fraser Approach
d. The Hazelwood Test
e. Choosing the Proper Test
f. Campus Speech
g. Speech Codes
h. Other Harms