CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 2
Freedom of Speech
Objectives
The focus of this chapter is on 10 words found in the First Amendment: “Congress shall make no law
abridging the freedom of speech.” These 10 words are extremely important to American citizens. The main
goal of this chapter is to equip students to recognize when citizens are engaged in activity that falls within
the purview of the First Amendment and, if so, to be thoroughly knowledgeable of when police can arrest
citizens for what they say and when they can arrest citizens for what they do. To this end, students should
emerge with a solid understanding of the following matters:
1. The broad range of activities regarded as “speech” under the First Amendment.
2. When restrictions on speech content are allowed. This requires a thorough understanding of ‘the five
topics that are not protected by the First Amendment: (1) obscenity, (2) child pornography, (3) fighting
words, (4) speech integral to criminal conduct, and (5) incitement to violence or other unlawful activity.
Discussion Outline
§§ 2.1 – 2.2 Historical Background and Overview of the First Amendment
A. The First Amendment was a reaction to the repressive English experience, not an adoption of the
common law, as is true for most of the Bill of Rights. The First Amendment provides protection for
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
PowerPoint Slide 3. Freedom of Speech
Introduction
Congress shall make no law . . . 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.
— The First Amendment
B. The concept of speech is broadly defined for purposes of First Amendment. It includes:
PowerPoint Slide 4. Concept of Speech
The concept of speech under the First Amendment (see Figure 2.2) includes
the right to:
1) Gather information
5) Engage in symbolic speech
C. Speech encompasses far more than oral or written oratory. The First Amendment protects:
1. Right to gather information.
Class discussion case: Glik was walking on campus when he saw several police officers beating
a student who was lying on the ground, wrenching in pain, and begging them to stop. He used his
cell phone’s digital video camera to record the incident. While he was doing this, an officer came
over, took his phone, kept it until the incident was over, and erased the pictures before returning
it. Glik sued, claiming that his First Amendments rights were violated. Was Glik engaged in
conduct the First Amendment protects? These facts are a modified version of Glik v. Cunnife, 655
2) Maintain ideas and beliefs
3) Communicate ideas to others
All known methods and mediums for expressing and communicating ideas are protected: making
speeches; distributing literature, pamphlets, and other written materials; organizing and participating
4) Right to engage in ideological silence include things like refusing to pledge allegiance to the American
flag (West Virginia State Board of Education v. Barnette), take loyalty oaths, etc.
5) Right to engage in symbolic speech. Symbolic speech refers to mute conduct performed for the sake of
communicating a message that is likely to be understood by those who view it. Examples include:
§§ 2.3 – 2.5 First Amendment Distinction Between A Speaker’s Message and His Conduct
A. A central distinction exists in First Amendment analysis between regulations that are directed at a
speaker’s message and those that are directed at a speaker’s conduct.
PowerPoint Slide 5. Speech and Conduct
The First Amendment distinguishes between the message and
conduct associated with the delivery.
• Restrictions on conduct are valid when they further a substantial
1. Restrictions directed at a speaker’s conduct. United States v. O’Brien (draft card burning case)
established the controlling test for when laws targeted at conduct may be applied to persons
engaged in speech. The Supreme Court held that laws prohibiting conduct may be applied to
persons engaged in speech when they: (1) further a substantial government interest that is (2) not
related to suppressing the speaker’s message.
▪ Texas v. Johnson (Part II). Johnson’s arrest under a flag desecration statute for engaging in
▪ Class discussion. To make sure that the students are awake, you might want to ask them
whether laws that prohibit motorists from talking on cell phones and sending text messages
while driving violate the First Amendment. The answer, of course, is no. Since these
ordinances are aimed at the motorist’s conduct, not the message, and further a substantial
government interest, they are valid under the O’Brien test.
2. Restrictions targeted at a speaker’s message. The marketplace of ideas metaphor is used to explain
why restrictions on speech content generally violate the First Amendment. This theory posits that
1. Brown v. Entertainment Merchants Association. The Court invalidated a state statute
prohibiting the sale to minors of video games with themes of killing, maiming, dismembering,
or sexually assaulting images of human beings. This statute violated the First Amendment
because it imposed a content-based restriction on speech that does not fall within an existing
exclusion.
2. United States v. Alvarez (Part II). The Court invalidated a federal statute that made it a crime
to lie about receiving military honors on the grounds that falsity alone is not enough to deprive
3. Supplemental material. In U.S. v. Chappell, 691 F.3d 388 (4th Cir. 2012), a federal court
rejected a First Amendment challenge to a Virginia police impersonation statute, which
prohibited falsely pretending to be a police officer. The defendant falsely told a police officer
that he was a deputy sheriff in the hopes of avoiding a speeding ticket. The court upheld the
police impersonation statute, distinguishing Alvarez on the grounds that the falsely pretending
to be a police officer is not an innocuous lie. “[I]t is easy to envision how just pretending to be
a police officer could—without more—assist an individual in gaining entrance to a home or
abducting a child. In addition to promoting public safety, the statute deters individuals from
pretending to be police officers in an attempt to evade fines, incarceration, and other state–
imposed sanctions.”
4. In United States v. Stevens, mentioned in §2.5 of the text, the Supreme Court struck down a
federal statute criminalizing the creation and sale of videos depicting the intentional maiming,
mutilating, torturing, wounding, or killing live animals. The statute was aimed at crush videos
5. In Snyder v. Phelps, mentioned in the text, the Supreme Court held that members of the
Westboro Baptist Church could not be sued for picketing the funeral of a fallen soldier to
spread their belief that God hates homosexuals. The case arose as a tort action to recover
damages for intentional infliction of emotional distress. Three factors were responsible for the
3. Police may not arrest individuals for the obnoxious or offensive content of their speech unless their
speech is constitutionally unprotected. This message needs to be mentioned early and often.
§§ 2.4 – 2.12 Speech Topics That Have Been Excluded from the First Amendment or Enjoy
Limited Protection
A. Despite the First Amendment’s nonjudgmental, tolerant attitude toward matters of speech content, a
small number of narrowly and tightly defined categories of speech have been excluded from the First
Amendment. People can be punished for speech that falls within these categories. The Supreme Court
has explained that these categories were considered punishable when our nation was founded and hence
were not intended to be included within the Freedom of Speech that the First Amendment was adopted
to protect.
PowerPoint Slide 6. Excluded Speech Categories
Although free speech generally means freedom to speak on any
matter, a small number of speech categories have been excluded from
the First Amendment:
1) Obscenity
A. Obscenity. The constitutional definition of obscenity was established in Miller v. California. A work
can be treated as obscene and suppressed on this basis only if it is deficient on all three prongs of the
Miller test.
PowerPoint Slide 7. Obscenity and Child Pornography
The test for obscenity was established in Miller v. California. The
work, taken as a whole, must:
B. Child pornography is excluded from the First Amendment to protect children from sexual exploitation
required to produce the material. Possession of child pornography can be made a crime, regardless of
whether the work is obscene under the Miller standard, but deviation from the Miller standard is
C. Fighting words exclusion.
1. The fighting words exclusion has a three-pronged test. The third prong requires consideration of
factual context, including the proximity and characteristics of the parties and other circumstances
that affect the likelihood of a violent response.
PowerPoint Slide 8. Fighting Words
• Whether language constitutes “fighting words” requires an
examination both of the words used and the context in which
they are uttered.
• A person may be arrested for using “fighting words” only if
the person’s language is:
1) Abusive, derisive, or insulting
2) Spoken in a face-to-face encounter
3) Under circumstances inherently likely to provoke the
average person to retaliate with violence
▪ Sandul v. Larion (Part II). You may want to begin by noting that this was a civil suit. Officer
Larion was sued under 42 U.S.C. §1983 for violating Sandul’s constitutional rights by
arresting him for exercising his right to free speech. Sandal’s conduct—leaning out of a
2. The requirement that insults be spoken under circumstances inherently likely to prompt the listener
to retaliate with violence generally prevents insulting language addressed to a police officer from
being treated as fighting words because police are trained to exercise a higher degree of restraint
than the average citizen.
▪ State v. Suhn (Part II). As he drove past a crowd standing on the sidewalk, Officer Gibson
heard Suhn yell the following obscenities in his direction: “Fucking cop, piece of shit. You
fucking cops suck. Cops are a bunch of fucking assholes.” He arrested Suhn for causing a
breach of the peace. The conviction was reversed on appeal. The court held that the trial court
erred in determining that Suhn’s utterances were unprotected speech: “Just because someone
D. Speech integral to criminal conduct, such as bribery, extortion, perjury, blackmail, conspiracy,
solicitation to commit a crime, etc., is another category that is not protected by the First Amendment.
1. Threats are the most widely litigated member because words that sound like a threat may actually
be nothing more than innocuous political banter. To constitute a true threat, the speaker must
intend his or her statement to be understood as a serious expression of intent to commit an act of
unlawful violence against a particular person or group of persons. The words spoken in Watts v.
United States, discussed in the text, were not a true threat. A true threat is a serious threat, not one
said in jest, idle talk, hyperbole, or political repartee.
PowerPoint Slide 9. Speech Integral to Criminal Conduct
• The First Amendment does not protect speech integral to
person or group of persons.
▪ Virginia v. Black (Part II). The defendant was prosecuted for burning a cross at a Ku Klux
Klan rally. The Court noted that cross burning can constitute either an unprotected threat (such
2. The First Amendment does not require police officers to be more tolerant of threats (in contrast to
fighting words) than the average citizen would be. Threats addressed to a police officer are not
E. Incitement of immediate unlawful action.
1. Legislatures may not make advocacy of violence or other unlawful activity a crime unless the
advocacy is both: (1) directed toward inciting immediate lawless action, and (2) is likely to incite
such action. This is known as the Brandenburg test, after the case in which it was announced.
PowerPoint Slide 10. Incitement to Immediate Unlawful Action
2. The Brandenburg test limits the authority of the police to arrest rabble rousing speakers. In Hess
v. Indiana, the only case where the Supreme Court applied the Brandenburg test to a real-time
crowd control situation, the Court interpreted imminent to mean immediate. The Court overturned
an anti-war protestor’s disorderly conduct conviction for saying “We’ll take the f——ing street
later” while the police were attempting to move a crowd of demonstrators off the street so that
vehicles could pass. The Court held that the arrest was improper because Hess did not urge
imminent unlawful action. The action urged (“We’ll take the f——ing street later”) was to occur
at some time in the future. Thus, police can arrest an incendiary speaker in a crowd control
situation only when (1) the speaker intends to incite unlawful action, (2) the unlawful action is
likely to occur, and (3) the action appears imminent. Hess v. Indiana is discussed in §2.9 (A) of
the textbook.
3. Free speech may not be suspended because police fear that an outbreak will occur if an anticipated
demonstration, march, or rally is allowed to take place. The solution is to deploy additional
manpower.
• Congine v. Village of Crivitz (Part II). Vito Congine sued the Village of Crivitz for
confiscating his upside-down flag during a Fourth of July celebration. Congine, a former
Marine, decided to fly an American flag upside down in the parking lot of the restaurant he
had hoped to open to protest the denial of a liquor license. Members of the American Legion
complained to Chief of Police Frievalt, but he told them that Congine was acting within his
• Supplemental material. Glasson v. City of Louisville, 518 F.2d 899, 905 06 (6th Cir. 1975), is
worth mentioning if you have time. An officer assigned to monitor the crowd along President
Nixon’s motorcade route was successfully sued for taking a protestor’s sign reading “Lead us
to hate and kill poverty, disease and ignorance, not each other” away from her and destroying
it. The court rejected the defendant’s argument that the action was justified because a crowd
of Nixon supporters across the street were grumbling and hissing. Noting that the crowd across
the street numbered less than 30 and there were more than enough police officers on the
scene—between seven and 12 officers—to keep the peace, the court wrote: “. . . Miss Glasson
was in a place where she had a right to be, at a time that was appropriate, and was conducting
herself peacefully and lawfully. . . . [H]ostile public reaction does not cause the forfeiture of
the constitutional protection afforded a speaker’s message so long as the speaker does not go
5. The Brandenburg test’s emphasis on the imminence of the threatened action makes it poorly
crafted to control incitement on the Internet. Extremist speech urging the killing of abortion
doctors, judges, and other “enemies” may linger in cyberspace for years before it comes to the
attention of the right lunatic who acts on it. The few prosecutions that have been brought for
Internet incitement have been tried on threat theories, with varying degrees of success.
▪ United States v. Turner (Part II). An Internet radio host with links to far-right political
movements posted the names and photographs of three federal judges, who had just ruled
that the Second Amendment right to bear arms did not apply to the states, on his web site
F. Hate speech refers to speech that expresses contempt for others because of their race, religion,
ethnicity, sexual orientation, or other characteristics that make them vulnerable. Examples include
epithets such as “nigger,” “chink,” “wop,” “kike,” “spic,” “fag,” etc.; symbols such as swastikas, cross
burnings, and hooded robes; and hate mongering diatribes delivered at rallies, on college campuses, on
the Internet, or any place where hate purveyors can find an audience.
PowerPoint Slide 11. Hate Speech
Hate speech refers to speech that denigrates, belittles, or expresses
contempt for others because of their race, color, religion, sexual
orientation, or other characteristics that makes them vulnerable.
G. Crude and vulgar speech carries limited constitutional protection, which means that it protected in
some contexts but not others. However, in the context in which police encounter vulgar speech—use
of vulgar language in public—it is protected. The Supreme Court has on several occasions held that
using the “F word” in public does not furnish grounds for arrest. Cohen v. California (1971) (“F——
the Draft” written on jacket); Hess v. Indiana (“We’ll take the f——ing street later [or again]”).
§§ 2.12 – 2.17 Speech on Government Property: Public Forums and Nonpublic Forums
A. Many speech communication techniques, such as distributing leaflets, soliciting contributions,
marching, picketing, etc., involve conduct entwined with speech. The conduct more often than not
PowerPoint Slide 12. Government Property & Speech
The constitutionality of restricting the use of government property for
speech is determined through an approach called forum analysis.
There are two kinds of forums:
1. Public forums
2. Nonpublic forums
B. Public forums include government locations that: (1) have a longstanding history and tradition of First
Amendment use by members of the public, such as public streets, sidewalks and parks (called
traditional public forums) or that (2) have been set aside for First Amendment use by members of the
PowerPoint Slide 13. Public Forums
• Traditional
o Streets, sidewalks, parks
• By designation
o Municipal auditoriums, meeting halls
• Restrictions
o Compelling government interest is needed to exclude speech
or ban use of important medium
o A substantial government interest is needed to restrict the
time, place, and manner of use.
1. Laws that outlaw speech in a public forum or that prohibit use of a medium of speech that is
important to people with limited funds, such as residential yard signs, door-to-door solicitation,
and begging are unconstitutional unless they are justified by a compelling government interest
▪ City of Ladue v. Gilleo (Part II). The Supreme Court struck down an ordinance that banned
display of residential yard signs. The ordinance was unconstitutional because it foreclosed use
▪ Speet v. Schuette (Part II). The lower federal court invalidated a Michigan statute making it
a crime to beg in public. Requesting money is protected by the First Amendment whether the
▪ Speet v. Schuette and City of Ladue v. Gilleo are similar. Both involved bans on media of
expression that are important to people with limited funds, resulting in denial of access to a
public forum to people and groups who depend on them.
2. Laws that regulate the time, place, or manner of using public forums for speech, but do not prohibit
speech, are valid if they: (1) advance a substantial government interest, (2) apply without regard
to content, and (3) leave ample alternatives available to reach the desired audience. Ordinances
C. The two-pronged test for when governments can restrict First Amendment activity in nonpublic
forum—neutral as to viewpoint and reasonable in light of the purpose the forum serves—is easy to
satisfy. That explains why restrictions on begging, soliciting charitable contributions, leafleting, etc.,
are valid in locations like libraries, post offices, government office buildings, municipal airports, and
the like, but not on public streets, sidewalks, and park forums.
PowerPoint Slide 14. Non-Public Forums
• Government’s business property
D. Permit Regulations
1. The First Amendment criteria for permit laws are designed to make sure that authority to grant or
deny a permit is not misused to deny access to a public forum for persons or groups deemed
“undesirable” or who advocate unpopular causes.
PowerPoint Slide 15. Permit Schemes
Laws requiring a permit to engage in First Amendment activity
must contain:
• narrow objective standards
• short waiting periods
• fixed or ascertainable fees
• required only for activities where advance notice is needed
2. Permits may be required only for gatherings that are large enough to create traffic, public safety,
E. Free Speech Access to Private Property
F. Laws that Should Not Be Used in Policing First Amendment Activity
1. Courts do not like laws that give police overly broad discretion in deciding whom to arrest because
they lead to arbitrary, discriminatory, and inconsistent applications. Courts don’t like them in
PowerPoint Slide 16. Statutes Police Should Not Use
Police should never use these types of statutes to make arrests in
a speech context:
Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)
1. What freedoms, in addition to freedom of speech, are mentioned in the First Amendment? (Study the
full text of First Amendment in the Appendix.)
2. “Speech” has an expansive definition for First Amendment purposes. List as many endeavors as you
can that involve “speech.” (§2.3)
3. What is necessary for mute conduct to be considered symbolic speech? Provide examples of conduct
that qualifies. (§§2.3–2.4)
6. What does phrase “marketplace of ideas” mean? (§2.5)
7. What categories of speech have been excluded from First Amendment protection? What reason has the
Supreme Court given for their exclusion? What showing would be necessary to persuade the Supreme
Court to exclude another category? (§§2.5–2.9).
8. What speech topics carry limited First Amendment protection? (§§2.5. 2.11, 2.12)
9. When may police consider speech content in making enforcement decision? (§§2.5-2–9)
10. State the legal definition of obscenity. What case established this test? (§2.6)
11. What is child pornography? (§2.6)
12. What is necessary for a work to be considered “child pornography” that is not required for it to be
considered “obscene”? What is necessary for a work to be considered “obscene” that is not required
for it to be treated as “child pornography”? (§2.6)
16. State the test for when speech is punishable as a “true threat.” (§2.8)
17. State the test for when speech advocating violence or other unlawful activity is punishable. What case
established this test? (§2.9)
18. What is the proper response for police when a hostile audience threatens a breach of the peace at a First
Amendment gathering? (§2.9)
19. What is hate speech? What degree of protection—full, limited, or none—does hate speech enjoy? Can
legislatures make it a crime to kill a person because of the person’s race, religion, or sexual orientation?
Can legislatures provide enhanced punishments for persons who select their victims because of their
race, religion, or sexual orientation? (§2.10)
23. Give at least four examples of locations regarded as public forums. (§2.14)
24. Give at least four examples of locations regarded as nonpublic forums. (§2.14)
25. What requirements must restrictions on speech in nonpublic forums satisfy to be valid? (§2.14)
26. What requirements must restrictions on the time, place, or manner using public forums for speech
satisfy to be valid? (§2.14)
27. What requirements must permit ordinances satisfy to be valid? (§2.15)
*28. Classify following locations as a public forum or a nonpublic forum and determine whether the
regulation is valid. (§§2.14–2.16).
d. An ordinance prohibiting excessively loud noises in front of churches and hospitals.
e. An ordinance that prohibits display of signs within 500 feet of a foreign embassy that are critical
of the foreign government.
29. There are three kinds of statutes that police should never use to make an arrest in a context involving
speech, even when the speaker’s conduct is not protected by the First Amendment. Identify them.
(§2.17)
ANSWERS:
28.
a. Nonpublic forum/valid.