Chapter 2
Freedom of Speech
Objectives
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 they 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. ment.
2. The extent to which legislative are free to criminalize speech on particular topics. This
3. The extent to which police officers are allowed to consider speech content in making
enforcement decisions. This also requires a thorough understanding of the five speech topics
that are not protected by the First Amendment.
are excellent resource for instructors who have time for additional reading.
Discussion Outline
§2.1 Historical Background
A. History of English repression
B. First Amendment protects four freedoms:
1. speech,
C. The First Amendment originally applied only to the federal government. Today, the First
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D. Importance of free speech in a democratic society
§2.2 Overview of Constitutional Protection for Speech and Expressive Conduct
The First Amendment prohibits the government and those who exercise government authority
from abridging freedom of speech. When a citizen claims that his or her First Amendment rights
were violated, the court must decide two questions:
A. Does the activity in question involve speech? (§2.3)
B. If so, did the officer freedom of speech? A central
§2.3 Is Speech Involved?
The First Amendment concept of speech includes the right to:
C. Communicate them to others by making speeches; organizing and participating in parades,
marches, pickets, and other demonstrations; carrying and displaying signs and placards;
D. Engage in ideological silence, such as refusing to pledge allegiance to the American flag
(West Virginia State Board of Education v. Barnette), and
E. 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
§2.4 First Amendment Distinction b
with its Communication
A. through
written or spoken words. However, they sometimes use a combination of words and conduct,
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B. (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)
message.
1. Texas v. Johnson tute for engaging
in symbolic speech (i.e., flag burning) violated his First Amendment rights because the
C. Hypothetical. The City of Misanthrope enacted an ordinance making it crime to sit, lie, or
sleep on a public sidewalk during daylight hours. The ordinance was motivated by concern
that the downtown business district was deteriorating into a Skid Row. Sally, an advocate for
the homeless, decided to protest the constitutionality of this statute by sitting on the sidewalk
D. May cities have ordinances that prohibit motorists from talking on cell phones and sending
text message while driving. Do such measures violate the First Amendment? No. Since these
ordinances are aimed at motorist , they are valid under the
test.
E. Supplemental material. City of Harvard v. Gaut, 660 N.E.2d 259 (Ill. Ct. App. 1996).
Ordinance making it unlawful for any person to wear street gang colors, emblems, or other
§2.5 Punishing Speech Because of the Content or Message
A. Legislatures may not criminalize speech based on its content unless the speech falls within a
small handful of categories that have been excluded from First Amendment protection (i.e.,
§2.6 Obscenity and Child Pornography
A. Obscene materials are not protected by the First Amendment.
B. The constitutional definition of obscenity was established in Miller v. United States. A work
is obscene under the Miller standard if, taken as a whole, it:
1. appeals to the prurient interest of the average person ;
.
C. States are permitted to enact child obscenity laws prohibiting the sale to minors of materials
that are obscene from the perspective of a minor, but not from the perspective of adult.
Brown v. Entertainment Merchants Association (Part II) Supreme Court invalidated a
statute prohibiting the sale to minors of video games with extremely violent content. The
D. In order to protect children from sexual exploitation, governments may ban distribution of
child pornography, regardless of whether the work is obscene under the Miller standard.
§2.7 Fighting Words
A. i
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B. The fighting words exclusion is limited to: (1) abusive remarks and insults; (2) uttered in a
face-to-face encounter, (3) under circumstances that are inherently likely to provoke an
immediate violent response. The third factor requires consideration of factual context,
including the proximity and characteristics of the parties and other circumstances that affect
the likelihood of a violent response.
1. Sandul v. Larion (Part II). You may want to begin by noting that this was a civil suit.
C. 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. Buffkins v. City of Omaha (Part II) (Calling a
ingredient is missing;
§2.8 Threats
A. Threats are another class of speech that is not protection by the First Amendment. To
constitute a true threat, the speaker must intent his statement to be understood as a serious
B. 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
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C. Threats directed at police officers, as opposed to fighting words, are not protected by the
First Amendment.
§2.9 Incitement to Riot
A. Legislatures may make advocacy of violence or other unlawful activity a crime only when
the advocacy is both: (1) directed toward inciting immediate lawless action, and (2) is likely
1. Hess v. Indiana (Part II) The Supreme Court overturned an anti-
disorderly conduct ing street later
2. 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.
3. Supplemental material. Police may not arrest an unpopular speaker because of a hostile
audience reaction to views. In Glasson v. City of Louisville, 518 F.2d 899,
905 06 (6th Cir. 1975), an officer
destroying it. The court rejected
because a crowd of Nixon supporters across the street were grumbling and hissing.
Noting that the crowd across the street numbered less than thirty and there were more
The record before us demonstrates that Miss Glasson, in displaying her placard
§2.10 Hate Speech
A. 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.
§2.11 Crude and Vulgar Speech
Vulgar speech is entitled to limited constitutional protection, being protected in some contexts but
not others. However, in the context in which police encounter vulgar speech use of vulgar
§2.12 Commercial Speech
§2.13 Restraints on Speech Based on Considerations Other Than the Message
A. Many speech communication techniques, such as distributing leaflets, door-to-door
§2.14 Free Speech Access to Government Property: Public Forums and Nonpublic Forums
A. The constitutionality of restricting the use of government property for speech is determined
1. 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,
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2. All remaining government facilities, such as public schools, courts, government office
C. Scope of regulatory authority.
1. Nonpublic forums. Restrictions on speech in nonpublic are valid if they are: (1) neutral
as to viewpoint and (2) reasonable in light of the purpose the forum serves. In
2. Public forums
a. Restrictions on the time, place, or manner of using public forums for speech are
valid if they: (1) promote a substantial governmental interest, (2) are neutral as to
content, (3) leave ample alternatives available for reaching the desired audience.
Ordinances that prohibit noisy demonstrations in front of schools during class hours; that
§2.15 Protecting the Community from Nuisances Linked to Speech
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A. Anti-noise ordinances
Anti-noise ordinances are often sustainable as a reasonable time, place, or manner
restrictions on speech in public forums.
B. Ordinances protecting residential privacy
C. Anti-litter laws
Anti-litter laws are constitutional, but enforcement efforts must be directed at the people who
D. Interference with traffic and ingress and egress to buildings
E. Restrictions on face-to-face solicitation
F. Signs and billboards
G. Permit ordinances
1. Permits maybe required for gatherings large enough to create traffic, public safety, or
competing use concerns that make advance notice desirable, but not for small group
gatherings, door-to-door advocacy, or handbilling.
2. To be constitutional, a permit ordinance must: (1) contain clear, narrow, and objective
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§2.16 Free Speech Access to Private Property
§2.17 Need for Precision in Regulating Speech
A. Criminal laws that have the potential to be applied on a regular basis to persons engaged in
speech must contain narrow, clear, and precise standards to guide arrest decisions.
2. There are three kinds of statutes that should never be used in a context involving speech,
Review Questions
1. What personal or social benefits does the constitutional guarantee of free speech promote?
(§2.1)
2. What freedoms, in addition to freedom of speech, are mentioned in the First Amendment?
(text of First Amendment)
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6. Why did the Supreme Court find the Texas flag desecration statute unconstitutional in Texas
v. Johnson? (§2.3)
7. The City of Misanthrope, fed up with homeless people sitting and lying on sidewalks,
8. What speech topics have been excluded from First Amendment protection? (§§2.5-2.9).
9. What speech topics carry limited First Amendment protection?. (§§ 2.5. 2.11, 2.12)
10. When, if ever, may police arrest citizens solely for what they say? (§§2.5-2.9)
14. ?
15.
19. When is burning a cross protected by the First Amendment? When it is punishable? (§§ 2.8,
2.10; Virginia v. Black (Part II)).
20. A police officer arrested a woman for shoplifting. As he was taking her into custody, she
ou f acharge her with disorderly
conduct for using profanity? (§2.11)
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24. What legal standard is used to determine the constitutionality of restrictions on speech in
nonpublic forums? §2.14)
a. An ordinance prohibiting begging in municipal bus stations? (Nonpublic forum/valid.
International Society for Krishna Consciousness v. Lee (Part II))
b. An ordinance prohibiting begging anyplace in the city? (Public forum/invalid. Laws that
foreclose access to an entire medium of expression do not constitute reasonable time, place,
and restrictions and violate the First Amendment. Loper v. New York City Police Department
(Part II))
f. An ordinance requiring a permit to go door-to-door, soliciting contributions for any religious,
political, charitable, or other cause. (Public forum/invalid)
g. An ordinance outlawing display of residential yard signs. (A pers
City of Ladue v. Gilleo (Part II),
the Supreme Court determined that heavy burden this ordinance place on free speech
rendered it unconstitutional.)
27. What three conditions are necessary for a valid permit ordinance? (§2.15)
28. Why are shopping center proprietors free to ban picketing, handbilling, and other speech-
(*indicates correct answer)
(§2.1)
1. The First Amendment mentions several rights in addition to freedom of speech. Among the
rights mentioned is the right to:
(§2.2)
2. ses of the First
Amendment?
(§2.3)
3. During the Persian Gulf War, six anti-war demonstrators climbed up the fire escape and onto
the roof of an Armed Services Recruiting Station building where they lowered the flag flying
involvement in the Persian Gulf War. They were indicted and convicted for criminal trespass and
malicious destruction of government property. On appeal, they contended that their conviction
violated their rights under the First Amendment. The appeals court should:
(§2.5-2.8, 2.11)
4. First Amendment protection has been entirely withdrawn from all but one of the following
categories of speech. Which category continues to enjoy some degree of First Amendment
protection?
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(§2.6)
5. The test currently used to determine whether literary works are obscene was established by
the Supreme Court in:
(§2.6)
6. Literary works can be banned as obscene only if they:
(§2.7)
7.
(§2.4, 2.5, 2.7, 2.9)
8. Cityville recently adopted an ordinance making it a misdemeanor to appear in public wearing
a white robe or other clothing that identifies the wearer as a member of the Ku Klux Klan. Ten
citizens attending a Ku Klux Klan rally in a city park were arrested and convicted for violating it.
They appealed, claiming that the ordinance is unconstitutional. The court should:
(§2.10)
9. In Brandenburg v. Ohio, the Supreme Court established the test that controls when speech
can be punished as:
(§2.14)
10. Municipal auditoriums are examples of:
(§2.14)
11. Which of the following locations is not a public forum?
(§§2.14-2.145)
12. The City of Loserville recently enacted four ordinances, three of which violate the First
Amendment. Which one is constitutional?
(§2.16)
13. On April 3, Bob, a candidate for district court judge, set up a table in the north wing of the
Sharpsville Plaza to solicit campaign contributions and distribute literature. Sharpsville Plaza is a
privately owned shopping center. Upon learning of Bob ager told him that
Sharpsville Plaza did not permit solicitation on the premises and asked him to leave. When Bob
refused, the manager called the police. When Officer Smith arrived, he observed that Bob was
polite and mannerly and that he was not disturbing anyone. Officer Smith should:
(§§2.17, 2.4)
14. On March 20, 2003, the day after the United States Iraq, a group of 50 anti-war
activists assembled outside city hall to hold an anti-war protest. Mary, the organizer, used a
portable sound system to read a prepared statement in which she denounced United States foreign
policy in the Middle East. The crowd rapidly swelled to more than 100 people, making it
impossible for members of the public to enter and leave the building. At the conclusion of her
speech, Mary produced a United States flag, announced that she intended to burn it to symbolize
abroad, and proceeded to do so. While it was still burning, two police officers
arrived on the scene and told Mary that she and her group would have to leave. Mary refused.
Cleveland has three relevant ordinances: one making it an offense to treat an American flag with
a third making it an offense to cause an obstruction to ingress to or egress from a public building.
Under settled interpretation of the First Amendment:
(§2.15)
15. All but one of the following ordinances violate the First Amendment. Which ordinance is
constitutional?
Multiple Choice Questions (*indicates correct answer)
1. Which of the following is not a protected form of speech?
2. In Texas v. Johnson the Court determined that a law prohibiting which of the following acts
was unconstitutional:
3. According to the Miller Test includes all of the following criteria for determining whether or
not a work is obscene except for:
4. The Brandenburg Test applies to which of the following:
5. States can make laws making it a crime to assault people based on their:
6. In which of the following cases did the Court break with the notion that vulgar speech was
either protected or it was not:
7. Commercial speech falls under ______ protection under the First Amendment:
8. Which of the following would be considered a nonpublic forum:
9. Which of the following is an acceptable way to control speech in a public forum?
10. There are three kinds of statutes that police should never use in a speech context, even when
following is NOT among them?
11. The FACE (Freedom of Access to Clinic Entrances) Act is constitutional because it protects
against:
True/False Questions (*indicates correct answer)
1. The First Amendment has its roots in the Magna Charta.
2. In First Amendment cases, conduct is never separated from speech.
3. A search warrant is always needed to seize literary materials.
4. Police officers can purchase literary material as a means of gathering evidence for an
obscenity charge without first obtaining a warrant.
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5. Child pornography is protected speech under the First Amendment.
6. According to Bethel School District v. Fraser, students do not have the same latitude as adults
7. Local governments can categorically ban begging in a city.
8. Context is everything when determining if a true threat has been made.
9.
spoken, or read.
10. There is a judicially established list of words that, when spoken, always con
Supplemental Materials
This section contains supplemental problems that can be used for course enrichment or as
essay examination questions.
Problem 1
The United States operates an Armed Services Recruiting Station in a one-story building in
downtown Whosville. On September 11, 2005, several protestors climbed onto the roof, lowered
the American flag flying over it, and burned it to symbolize their opposition to the war in Iraq.
Police arrived moments later and arrested them on charges of trespass and damaging government
property. Defendants claim that their conduct was protected by the First Amendment. Do you
agree?
Problem 2
A gay pride organization has procured a permit to hold a National Coming Out Day celebration in
a public park tomorrow evening. Police have just received word that members of Repent Sinners
plan to attend the event. Repent Sinners is a Christian church group whose members believe that
homosexuality is sinful and regard it as their duty to warn homosexuals that they are destined to
go to hell unless they repent. Police are worried that there may be violence.
(1) May the police order the gay pride organization to call off their celebration?
(2) Suppose the National Coming Out Day celebration is held. Shortly after it begins, 75
members of Repent Sinners show up, position themselves a few feet outside the area covered by
(3) Suppose the members of Repent Sinners enter the area covered by the permit and begin
(1) Members of the gay pride organization cannot be denied the right to speak in advance
(2) Counter-demonstrators have a First Amendment right to express their views so long as they
are peaceful and remain outside the area covered by a permit. They cannot be denied this right
(3) Counter-demonstrators have no right to express their views by intruding into an area reserved
for another event while it is still in progress. Once a permit has been issued, police have authority
message and replace it with their own. See e.g., Startzell v. City of Philadelphia, 2007 WL
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Problem 3
Members of the Westboro Baptist Church regularly picket the funerals of fallen Iraqi War
soldiers to publicize their belief that th death was caused by wrath against
America for tolerating homosexuals in the military. Six members traveled to Maryland to picket
the funeral of Marine Lance Corporal Matthew Snyder who was killed in the line of duty. The
picketing took place on public land approximately1,000 feet from the church where the funeral
was held. The picketers were not unruly; there was no shouting or violence. They peacefully
walked in a circle carrying placards that read
and . A member called the
police. The officers dispatched to the scene ask the Westboro picketers to put their signs away
until after the funeral service was over and arrested them for disorderly conduct when they
refused. They have appealed claiming that their arrests violated the First Amendment. What
results?
The facts of this problem were taken from Snyder v. Phelps, — U.S. –, 131 S. Ct. 1207, 179
L. Ed. 2d 172 (2011). The case involved civil suit brought by the family of a deceased soldier