Chapter 3
Expressive Freedom and the
First Amendment
CHAPTER OUTLINE
I. INTRODUCTION
II. INTERPRETIVE FOUNDATIONS OF EXPRESSIVE FREEDOM
A. Incorporation of the Freedoms of Speech and Press
B. Are the Protections of the First Amendment Absolute?
1. The Pentagon Papers Case
B. Does the Prior Restraint Doctrine Apply to Student Newspapers?
IV. THE CLEAR AND PRESENT DANGER DOCTRINE
A. A Return to the Bad Tendency Test
B. The Clear and Probable Danger Test
V. FIGHTING WORDS, HATE SPEECH, AND PROFANITY
A. Fighting Words
B. Hate Speech
1. Cross Burning
C. Profanity
VI. SYMBOLIC SPEECH AND EXPRESSIVE CONDUCT
A. The Flag Salute Controversy
B. Symbolic Speech during the Vietnam Era
1. The Tinker Case
C. Flag Burning
D. Are Nude Performances a Form of Symbolic Speech
VII. DEFAMATION
A. New York Times v. Sullivan
VIII. OBSCENITY AND PORNOGRAPHY
A. The Prurient Interest Test
B. The Miller Test
C. Pornography on the Internet
D. Child Pornography
IX. THE OVERBREADTH DOCTRINE
X. EXPRESSIVE ACTIVITIES IN THE PUBLIC FORUM
A. Civil Rights Demonstrations in the 1960s
1. The “Occupy” Movement”
B. Antiabortion Demonstrations
C. What Constitutes a Public Forum?
1. Is an Airport a Public Forum?
XI. ELECTRONIC MEDIA AND THE FIRST AMENDMENT
A. Restrictions of “Indecent” Programming on Television and Radio
1. Indecent Programming on Cable Television
B. Editorializing by Public Television and Radio Stations
XII. COMMERCIAL SPEECH
A. A Test for Judging Regulations of Commercial Speech
B. Commercial Advertising of Alcoholic Beverages
XIII. FIRST AMENDMENT RIGHTS OF PUBLIC EMPLOYEES AND BENEFICIARIES
A. Restrictions on Public Employees’ Speech
1. Is “Whistle Blowing” Protected by the First Amendment?
2. Government Employees, Facebook, and the First Amendment
B. First Amendment Rights of Government Contractors
C. Restricting Abortion Counseling
XIV. FREEDOM OF ASSOCIATION
A. Public Association
B. Freedom of Association and the Problem of Discrimination
1. Freedom of Association versus Gay Rights
XV. CONCLUSION
CRITICAL THINKING QUESTIONS
1. Does the First Amendment protect a citizen’s right to publicly advocate terrorism against
the United States, at least in the abstract?
2. Should profanity enjoy constitutional protection? In which scenarios should state and
local governments be permitted to punish individuals for using foul language?
3. Under the First Amendment, is “hate speech” constitutionally protected if it is directed at
members of minority groups in the aggregate but not at specific individuals?
4. Does an individual have a constitutional right to belong to a white supremacist
organization that advocates the reinstitution of slavery? Should this organization be
5. Which should prevail: the right of members of a private country club to associate with
whom they wish, or the power of a city to require the club to accept African Americans
as members?
6. Is the Supreme Court correct to extend the protections of the First Amendment to
commercial speech? How might you argue that commercial speech is distinct from
individual expression?
7. Under what circumstances is the spending of one’s money an act of free speech protected
by the First Amendment?
8. Was the Supreme Court correct in holding that publicly burning the American flag as an
act of political protest is protected by the First Amendment?
9. Should a law prohibiting establishments where dancers perform nude from serving
alcoholic beverages be struck down as a violation of the First Amendment?
10. Can a public school constitutionally restrict students from “wearing items that might
convey a political message”?
11. Consider Justice Hugo Black’s absolutist position on First Amendment freedom of
speech. Should an individual be given the right to say or write anything, regardless of its
impact on other individuals or society in general?
12. Consider United States v. The Progressive (1979) and New York Times Company v.
United States (1971). Given the holdings in these cases, are there any instances where
national security concerns outweigh freedom of the press? Justify your answer.
13. Describe a hypothetical instance where you believe that the government would be
justified in using prior restraint to prohibit the publication of certain materials? Is there
14. Which provision of the First Amendment do you think the Court should give more weight
to, freedom of speech or freedom of association? Justify your answer.
15. Cases such as Reno v. American Civil Liberties Union (1997) highlight the troubles
governments have faced in regulating Internet communications. Do you agree with the
Courts ruling in this case? In what circumstances should regulation of the Internet be seen
as constitutional?
LECTURE LAUNCHERS
How to Introduce Freedom of the Press.
Late in 2012 major controversy erupted after a New York newspaper, The Journal News,
published the names of addresses of thousands of people who were licensed to own a handgun in
New York’s Westchester and Rockland counties. The information was available to readers in the
form of an interactive map as well, allowing residents to see the location of permit holders in
relation to their own homes. The paper chose to publish the information, which it received
through an open record request, in the aftermath of the horrific school shooting in Newtown,
Connecticut which once again returned gun policy to the forefront of national debate. But did The
Journal News go too far in this case?
Many opponents spoke out against the papers action. Local law enforcement officials objected to
the release of such information, pointing to the vast presence of past and current police officers
on the list. They argued the papers action provided an exact map and direction to the homes of
officers that could be used for revenge-minded criminals. Some suggested it provided the
whereabouts of guns for those who were looking to steal and posses them illegally. Conversely
some gun advocates said it was a map for criminals to target addresses not on the list, all of which
represented homes where there was not a gun owner present. Supporters of the paper argued that
individuals had a right to know about gun owners living in their neighborhood and that the paper
had a right to take a stance on the gun owning controversy.
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
In the small town of Fulton, South Carolina, a controversy has recently placed the small local
police department in a difficult situation. Seth Booth, the police chief, has come to you as a
lawyer to ask for advice on how to proceed. Booth needs you to help him settle the dispute while
respecting the constitutional rights of all those involved. The First Fulton Church recently made
headlines by hiring Kellen Rollins, an openly gay pastor at its church. This represents the first
such occurrence in the region. In response to Rollins hiring many members left the church. Soon
they begin protesting every Sunday on the sidewalk in front of the church and in the church
parking lot. The leader of the protest, Michael Huffman, stated publicly that a homosexual pastor
was against the established values of the First Fulton Church and they would protest until a
change was made. For several weeks Pastor Rollins asked the protestors to come inside and join
KEY TERMS
freedom of expression A summary term embracing freedom of speech and freedom of
the press as well as symbolic speech and expressive conduct.
freedom of speech The right to speak or express oneself freely without unreasonable
interference by government.
freedom of the press The right to publish newspapers, magazines, and other print
media free from prior restraint or sanctions by the government.
freedom of assembly The right of people to peaceably assemble in a public place.
chilling effect The effect of discouraging persons from exercising their rights.
incorporation The process by which most provisions of the Bill of Rights have
been extended to limit state action by way of the Due Process
Clause of the Fourteenth Amendment. Specific protections of the
Bill of Rights are said to be incorporated within the Fourteenth
Amendment’s broad restrictions on the states.
censorship Broadly defined, any restriction imposed by the government on
speech, publication, or other form of expression.
obscenity Explicit sexual material that is patently offensive, appeals to a
prurient or unnatural interest in sex, and lacks serious scientific,
artistic, or literary content.
profanity Vulgar, coarse, or filthy language; irreverence toward sacred
things.
fighting words Utterances that are inherently likely to provoke a violent
response from the audience.
defamation A tort involving the injury to one’s reputation by the malicious
or reckless dissemination of a falsehood.
prior restraint An official act preventing publication of a particular work.
clear and probable danger test A somewhat more restrictive First Amendment test than clear
and present danger. The test is “whether the gravity of the ‘evil,’
discounted by its improbability, justifies such invasion of speech
as is necessary to avoid the danger.”
ad hoc balancing An effort by a court to balance competing interests in the context
of the unique facts of a given case. In constitutional law, this
term is used most frequently in connection with the adjudication
of First Amendment issues
criminal syndicalism The crime of advocating violence as a means to accomplish
political change (archaic).
imminent lawless action Unlawful conduct that is about to take place and which is
inevitable unless there is intervention by the authorities.
hate crimes Crimes in which the victim is selected on the basis of race,
religion, or ethnicity.
patently offensive Plainly or obviously offensive; disgusting.
community standards Standards of decency, which may vary from community to
community.
overbreadth doctrine The doctrine under which a person makes a facial challenge to a
law on the ground that the law might be applied in the future
against activities protected by the First Amendment.
electronic media Electronic means of mass communication, including television,
radio, and the Internet.
scarcity theory Theory holding that government can and should regulate access
to the public airwaves, as these are scarce commodities.
least restrictive means test A judicial inquiry as to whether a particular policy that is being
challenged as an infringement of some fundamental right is the
INSTRUCTOR RESOURCES
Berns, Walter. The First Amendment and the Future of American Democracy. NY: Basic Books,
1976.
Bollinger, Lee. The Tolerant Society: Freedom of Speech and Extremist Speech in America. NY:
Oxford University Press, 1986.
Downs, D. A. Nazis in Skokie: Freedom, Communication and the First Amendment. South Bend,
IN: Notre Dame University Press, 1985.
University Press, 1999.
Tedford, Thomas L., and Dale A. Herbeck Freedom of Speech in the United States (5th ed.). State
College, PA: Strata Publishing, 2005.
Walker, Sam. Hate Speech: The History of an American Controversy. Lincoln: University of
Nebraska Press, 1994.
NOTES ON EXCERPTED CASES
NEAR v. MINNESOTA (1931).
In this case the Supreme Court struck down a state law that permitted public officials to seek an
injunction to stop publication of any “malicious, scandalous, and defamatory newspaper,
magazine or other periodical.” The statute was invoked to suppress publication of a small
Minneapolis newspaper, The Saturday Press, which had strong anti-Semitic overtones and
frequently maligned local political officials, particularly the chief of police. This law specifically
provided that once a newspaper was enjoined, further publication was punishable as contempt of
NEW YORK TIMES COMPANY v. UNITED STATES (THE PENTAGON PAPERS
CASE) (1971).
In this case the federal government attempted to prevent the New York Times and The Washington
Post from publishing excerpts from a classified study entitled “History of U.S. Decision-Making
Process on Viet Nam Policy” (the Pentagon Papers). By a six–to-three vote the Supreme Court, in
a brief per curiam opinion, held that the government’s effort to block publication of this material
SCHENCK v. UNITED STATES (1919).
Charles T. Schenck, general secretary of the Socialist Party, was convicted under the Espionage
Act of 1917 for interfering with military recruitment by conspiring to print and circulate leaflets
“to men who had been called and accepted for military service.” The leaflets urged resistance to
the draft on the ground that it violated the Thirteenth Amendment of the Constitution. Although
sharply critical of the war effort, the Socialists’ message was confined to the advocacy of
peaceful measures such as petition for repeal of the draft. The record does not indicate that any
disruption or actual draft resistance occurred as a result of Schenck’s efforts; however, the Court
unanimously upheld his conviction on the ground that speech intended to obstruct the war effort
was not entitled to constitutional protection. Writing for the Court, Justice Holmes famously
BRANDENBURG v. OHIO (1969).
Here the Supreme Court invalidated a state criminal syndicalism statute, thus explicitly
overruling Whitney v. California (1927). In reversing the conviction of a local Ku Klux Klan
leader who had conducted a televised rally near Cincinnati, the Court held that “the constitutional
guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of
COHEN v. CALIFORNIA (1971).
Here the Supreme Court refused to classify as fighting words the message “Fuck the Draft”
emblazoned on the back of a jacket worn by Paul Robert Cohen in the corridors of the Los
Angeles County courthouse. Reversing Cohen’s conviction for breach of the peace, the Court, per
Justice Harlan, reasoned as follows: “While the four-letter word displayed by Cohen in relation to
the draft is not uncommonly employed in a personally provocative fashion, in this instance it was
TEXAS V. JOHNSON (1989).
After publicly burning the American flag outside the 1984 Republican National Convention in
Dallas, Gregory Johnson was prosecuted under a Texas law prohibiting flag desecration. Johnson
was convicted at trial, but his conviction was reversed by the Texas Court of Criminal Appeals,
which held that Johnson’s conduct was protected by the First Amendment. The United States
Supreme Court agreed, splitting 5–4. Writing for the Court, Justice Brennan observed that “[t]he
expressive, overtly political nature of [Johnson’s] conduct was both intentional and
VIRGINIA v. BLACK (2003).
Here the Court upheld a Virginia law banning cross burning with “an intent to intimidate a person
or group of persons.” Writing for the Court, Justice Sandra Day O’Connor concluded that the
“First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate
because burning a cross is a particularly virulent form of intimidation.” In O’Connor’s view,
NEW YORK TIMES COMPANY v. SULLIVAN (1964).
This case emerged out of the civil rights struggle of the 1960s. L.B. Sullivan, a city commissioner
in Montgomery, Alabama, brought suit against the New York Times for its publication of a paid
advertisement in which civil rights leaders chastised Montgomery officials for police responses to
civil rights demonstrations. The Supreme Court disallowed this libel suit. As stated by Justice
Brennan, the First Amendment “prohibits a public official from recovering damages for a
MILLER v. CALIFORNIA (1973).
Here the Court wrestled with the often difficult task of balancing the First Amendment with
government interest in prohibiting obscene works or depictions. In this case the Court stated a
three-part definition of obscenity. Chief Justice Burger stated that “the basic guidelines for the
trier of fact” in obscenity cases are: “(a) whether “the average person, applying contemporary
RENO v. AMERICAN CIVIL LIBERTIES UNION (1997).
In 1996, Congress adopted the Communications Decency Act, which made it a crime to display
“indecent” material on the Internet in a manner that might make it available to minors. In Reno,
the Court declared this statute unconstitutional on First Amendment grounds. Writing for the
Court, Justice Stevens concluded that, with respect to cyberspace, “the interest in encouraging
UNITED STATES v. STEVENS (2010).
In this case the Supreme Court stuck down a federal statute, 18 U.S.C. §48, which made it a
felony for anyone to knowingly create, sell, or possess a depiction of animal cruelty if done for
commercial gain. The law exempted depictions with serious religious, political, scientific,
educational, journalistic, historical, or artistic value. The law was enacted in 1999 primarily to
prohibit so called “crush videos” that depict small animals being crushed, usually by human feet
and often in a sexual context. However, more recent concerns about dogfighting led to the law
being applied to purveyors of dogfighting videos. Robert J. Stevens, who ran a website selling
such videos, was convicted of violating the statute and was sentenced to three years in prison
EDWARDS v. SOUTH CAROLINA (1963).
Here the Court reversed breach-of-the-peace convictions of 187 African American college
students who had participated in a peaceful civil rights demonstration on the grounds of the state
capitol in Columbia, South Carolina. The Court held that in “arresting, convicting and punishing”
these students, South Carolina had infringed on their “constitutionally protected rights of free
ADDERLEY v. FLORIDA (1966).
In this case the Supreme Court affirmed the conviction of African American students who were
protesting local practices of racial segregation. The demonstrators were also denouncing the
arrests of other students, in this instance students from Florida A. & M. University who had
attempted to integrate public theaters in Tallahassee. During their demonstration, Harriet Louise
Adderley and other students had allegedly blocked a jail driveway not normally used by the
public. When they ignored requests to leave this area, they were arrested and charged with
violating a state law that prohibited trespass “committed with a malicious and mischievous
intent.” In justifying defendants’ convictions, Justice Black, writing for a majority of five justices,
LORILLARD TOBACCO COMPANY v. REILLY (2001).
In 1999, the Attorney General of the State of Massachusetts adopted regulations governing the
advertising and sale of tobacco products. The regulations prohibited outdoor advertising of
cigarettes, cigars, and smokeless tobacco within 1,000 feet of any playground or school. They
also required that ads inside stores be at least five feet off the floor, away from the usual sight of
children. A group of tobacco product manufacturers and retailers brought suit to challenge the
legality and constitutionality of these regulations. The Supreme Court held that the Federal
NATIONAL ENDOWMENT FOR THE ARTS v. FINLEY (1998).
In an eight-to–one decision, the Court upheld a federal law requiring the NEA take into
consideration “general standards of decency” in making grants. Congress passed the law in 1990
in the wake of a controversy over the NEA’s role in funding such works as the homoerotic
images of Robert Mapplethorpe. The law was challenged by performance artist Karen Finley,
whose performances included smearing her nude body with chocolate to symbolize the
oppression of women. Lower courts invalidated the law, holding that it was excessively vague
and infringed free-speech rights under the First Amendment. In the majority opinion, Justice
BOY SCOUTS OF AMERICA v. DALE (2000).
James Dale, a former Eagle Scout, was dismissed from his position as an assistant scoutmaster of
a New Jersey Boy Scout troop when the organization learned that Dale was openly gay. Dale
successfully sued the Boy Scouts in the New Jersey courts, which ultimately ruled that that the
Boy Scouts had violated a state law prohibiting discriminating on the basis of sexual orientation
by places of public accommodation. Dividing 5–4, the U.S. Supreme Court reversed, holding that
the Boy Scouts’ freedom of association trumped the state’s interest in advancing the cause of gay
rights. Chief Justice Rehnquist delivered the opinion of the Court relying at times on the scouts