Freedom of Expression/Limitations - Restrictions/Jurisprudence

Under American jurisprudence, what permissible exceptions exist?

Clear and Present Danger: As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre. Fighting Words: In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). O’Brien Test: In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. Speech in schools: In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. Imminent Lawless Action: In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. Obscenity: The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene. Libel: Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988). Intellectual property: For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. Unlawful assembly: Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.

References:

US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/

Fighting words: https://www.mtsu.edu/first-amendment/article/293/chaplinsky-v-new-hampshire

US v. Obrien: https://www.mtsu.edu/first-amendment/article/709/united-states-v-o-brien#:~:text=In%20United %20States%20v.,of%20an%20anti%2Dwar%20protester.

RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul

Tinker v. Des Moines: https://www.oyez.org/cases/1968/21

Bethel v. Fraser: https://www.oyez.org/cases/1985/84-1667

Morse v. Frederick: https://www.oyez.org/cases/2006/06-278

Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action Libel info: https://www.freedomforum.org/libel/

Hustler v. Falwell: https://www.oyez.org/cases/1987/86-1278

Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/

Info on assembly: https://www.lawyers.com/legal-info/criminal/the-right-to-gather-has-some-restrictions.html#:~:t ext=No%20First%20Amendment%20rights%20are,raises%20a%20%E2%80%9Cclear%20and %20present