First Amendment Free Speech: Landmark US Court Cases

Symbolic Speech and Expression

• Protected Symbolic Speech

  • Tinker v. Des Moines (1969): Students wearing armbands to peacefully protest the Vietnam War were protected because their actions did not interfere with educational processes.
  • Texas v. Johnson (1989): Flag burning was protected as expressive conduct conveying a clear political message.
  • R.A.V. v. City of St. Paul (1992): A ban on cross burning was deemed too broad, as it prohibited speech based on its content rather than its potential for harm.

• Unprotected Symbolic Speech

  • United States v. O'Brien (1968): Burning a draft card was not protected because it involved the destruction of government property and interfered with a legitimate government interest.
  • Virginia v. Black (2003): Cross burning was not protected when it was done with the intent to intimidate, causing imminent danger or fear.

Standards for Political Speech

• Clear and Present Danger Doctrine

  • Schenck v. United States (1919):
  • The government may only punish speech if it creates a clear and present danger of bringing about substantive evils that Congress has the power to prevent.

• Imminent Lawless Action Standard

  • Brandenburg v. Ohio (1969): Involving a televised KKK demonstration.
  • The Court held that the government cannot prohibit speech unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Defamation and Actual Malice

• Understanding Defamation

  • Defamation involves injuring someone’s reputation through false statements (slander for spoken, libel for written). It is a tort, leading to civil penalties.

• New York Times v. Sullivan (1964)

  • Facts: L.B. Sullivan, a public official, sued The New York Times over an advertisement that contained false statements about police responses to civil rights demonstrations in the South.
  • Key Outcome: Created the "actual malice" test.
  • A public official may only collect damages for a defamatory falsehood relating to their official conduct if they prove the statement was made with "actual malice" – meaning with knowledge that it was false or with reckless disregard for whether it was false.

Public Forum Doctrine

• Defining a Public Forum

  • A public forum relates to the First Amendment right to assemble and express, and is generally given broad protections.
  • Public forums include traditional public spaces like streets and parks, as well as government properties intentionally opened for public use.
  • The legality of activities in a public forum is determined on the basis of "time, place, and manner" restrictions.

• Not Considered a Public Forum

  • Jail facility (e.g., Adderley v. Florida).
  • Private shopping mall: Private properties do not lose their private character simply because the public is allowed access.
  • Airports: In International Society for Krishna Consciousness v. Lee (1992), airports were ruled not to be public forums for solicitation. The Court has not definitively specified for all airport activities, though arguments for public forum status have been made, especially in light of protests.

• Considered a Public Forum

  • Outside government buildings.
  • Parks and city centers.
  • Sidewalks: Buffer zones outside abortion clinics have been upheld as not violating public forum rights, balancing free speech with public safety.