EDWARD'S LECTURE NOTES:
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C O U R S E
Key Constitutional Concepts and Supreme Court Cases
Professor Kermit Roosevelt, III, University of Pennsylvania
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C O U R S E L E C T U R E Freedom of Speech Notes taken on February 6, 2015 by Edward Tanguay |
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First Amendment
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protects:
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freedom of speech
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freedom of the press
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right to peaceably assemble
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right to seek the assistance of the government without fear of punishment
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freedom to exercise a religion
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freedom from government establishments of religion
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Mary Beth Tinker
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1965 wore a black armband to school
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expressed her opposition to the Vietnam War
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school officials didn't approve and suspended her
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told her she could come back if she agreed not to wear the black armband
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they wanted to control her expression
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freedom of speech
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free speech is essential to democracy
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the people in a democracy are supposed to govern
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for this you need good information
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free speech is how good information comes about
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doesn't mean that all opinions are equal
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doesn't mean that more opinions are better
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the main idea of the freedom of speech clause is that we don't trust the government to decide what speech should be heard
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free speech is not there for
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people we like
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people who have popular views
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free speech is there for the market place of ideas
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we trust that the market place of ideas will sort the good ideas from the bad ideas
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the amendment says
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"Congress shall make no law abridging the freedom of speech"
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does this mean that the President can tell the FBI to shut up protestors?
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Supreme Court has said it applies to the whole of the federal government
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and because of the 14th Amendment
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free speech can be invoked against states
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this is why Mary Beth Tinker could raise the freedom of speech clause against school officials who are state officials
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complicated topic
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what counts as speech?
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political contributions?
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burning a flag or a draft card?
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nude dancing?
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music?
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abstract art?
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yes, the Supreme Court says, to all these things
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speech ends up being defined very broadly
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anything that could in any way convey and idea or emotion can count as speech
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so Mary Beth Tinker's armband counts
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it's one thing to say tha the government can't restrain speech when it is small, when it can't do much
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the man on the street speaking against the government
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the police shouldn't be able to shut him up
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this is an easy first-amendment case
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the worst thing you can do by the way of abridgement is to try to stop someone from talking because you don't like what he's saying
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does it matter if he is in the army?
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does it matter if he's in high school?
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does it matter if he's in grammar school?
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does it matter what the subject is?
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does it matter when it's said or why it's said?
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we ask these questions because this is what is asked in a court that is concerned with protecting free speech
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we have to decide what the principles are in these very different circumstances
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whatever we decide in this case, it's going to be the same for all similar cases
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as the government gets bigger, we get more government/citizen interaction
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what if the government is your employer?
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what if the government is your school principle?
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people can't generally act on your like police officers can
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but there are high school principals who have more power of your than the average citizen
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you might argue that teachers grade tests based on what students say, and so curbing speech is a part of the characteristics of school
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the Supreme Court ruled
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if school officials have a reasonable fear of disruption, they can punish students for speech
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this is pretty much the same for people who work for the government, for prisons and the military
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if speech will interfere with the institutional mission, it can be punished
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Mary Beth Tinker won because there was no fear of disruption
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other tough questions
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when is speech by students considered school speech
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what if it's on the Internet
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one of the things that makes decisions on what the Constitution protects is changes in the role and scope of government