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Chapter 2
Freedom of Speech
Constitutional Law
13th Edition
Introduction
Congress shall make no law . . . abridging the
2 Freedom of Speech
Concept of Speech
The concept of speech under the First
Amendment (Figure 2.2) includes the right to:
•Receive information
2 Freedom of Speech
Concept of Speech (continued)
Speech also includes the freedom not to
speak or, in other words, to remain silent for
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Speech and Conduct
The First Amendment distinguishes between
the speaker’s conduct and the message.
Laws prohibiting conduct may be used to
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Expressive Conduct
The general laws of the community (i.e., trespass,
breach of the peace, disorderly conduct, blocking
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Excluded Speech Categories
Although free speech generally means freedom
First Amendment:
1. Obscenity and child pornography
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The Miller Test for Obscenity
To be considered obscene in the
constitutional sense, a literary work must:
•Appeal to prurient interests
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Fighting Words
Whether language constitutes “fighting words”
A person may be arrested for using “fighting
words” only if the person’s language is:
1. Abusive, derisive, or insulting
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Threats
Before a person can be punished for making a threat,
a true threat must be made.
To constitute a true threat, the speaker must intent
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Incitement to Immediate Unlawful Action
Speech advocating violence or other unlawful
actions cease to be protected by the First
Hate Speech
Hate speech refers to speech that denigrates,
belittles, or expresses contempt for others
because of their race, color, religion, sexual
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Government Property & Speech
The constitutionality of restricting the use
There are two kinds of forums:
1. Public forums
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Public Forums
•Traditional
oStreets, sidewalks, parks
•By designation
•Restrictions
oCompelling government reason is necessary
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Non-Public Forums
• Government’s business property
•Restrictions are valid, provided that they
are:
oNeutral as to viewpoint
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Statutes Police Should Not Use
Police should never use these types of statutes
to make arrests in a speech context:
• Statutes authorizing arrests for “disturbing,”
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