Monday, November 27, 2023

What Speech Is Protected By The First Amendment

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Frequently Asked Questions About The First Amendment And Ksu

Does the First Amendment Protect Hate Speech on Campus and Online?

1. What is the First Amendment?

The First Amendment of the United States Constitution states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people to peaceably assemble, and to petition the government for a redress of grievances. The First Amendment protects the freedom of speech, including the freedom to assemble or protest, freedom of religion, and freedom of the press. This means that people can express their opinions, point of views, and ideas without government interference or retaliation. The term speech includes all forms of expression, not just words, but also what a person wears, reads, performs, protests, and more.

2. Does the University have to protect free speech? Why?

Public universities, like KSU, are required to follow the First Amendment, which means that KSU has a very limited ability to restrict speech. In 2018, the Georgia General Assembly passed Senate Bill 339. In addition to the First Amendment, this law requires that KSU, as a public university in Georgia, assures freedom of speech is protected for all individuals at KSU. KSU cannot legally shield students, staff, faculty, or other KSU community members from speech protected by the First Amendment, including ideas and opinions that individuals may find unwelcoming, disagreeable, or even hateful.

3. What are time, place, and manner restrictions?


Court Upholds Ban On Casino Advertising Invalidates Other Regulations

Using the four-pronged Central Hudson test, the Court in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico upheld a law in Puerto Rico that barred casinos from advertising to its residents. The Court found that the interest of Puerto Rico in preventing its residents from receiving these advertisements furthered the narrowly drawn governmental interest of preventing gambling and to protect their health, safety, and welfare.

In 44 Liquormart, Inc. v. Rhode Island , the Supreme Court used the same four-pronged test to strike down a state law prohibiting the advertising alcohol prices. As in Virginia State Board of Pharmacy, the Court ruled that the right of consumers to receive truthful product information about prices was protected speech and that the state interest in promoting temperance was not narrowly drawn enough to prevent consumers from receiving lawful and truthful information about prices.

Through the Central Hudson test, courts across the country have invalidated numerous laws regulating commercial speech. As a result, doctors and lawyers may now advertise, and many companies and businesses, such as pharmaceutical manufacturers, are able to communicate information to consumers about their products so long as the information is truthful and legal.

What About Hate Speech And Harassment

Some readers may wonder why hate speech and harassment are not in the list of categories of unprotected speech.

Contrary to popular misconception, there is no First Amendment exception for so-called hate speech. The First Amendment fully protects speech that is unpopular or that some may find downright offensive.

The Supreme Court has held the First Amendment allows you to wear a jacket that says Fuck the Draft in a public building ), protest a soldiers funeral with a sign that says Thank God for Dead Soldiers ), burn the American flag in protest and United States v. Eichman ), and give a racially charged speech to a restless crowd ).

In Texas v. Johnson, the Supreme Court stated the general rule regarding protected speech when it held the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable. Federal courts have consistently followed this holding when applying the First Amendment.

The government may also prohibit harassment, properly defined, in the workplace. This includes quid pro quo harassment where a supervisor conditions continued employment or job benefits on sexual favors and hostile work environment harassment based on race, sex, or another protected characteristic. The latter arises when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider hostile, abusive, or intimidating.

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Is There Any Speech Prohibited By The First Amendment

The First Amendment does not prohibit any speech, but there are some types of speech for which there is no, or very limited, First Amendment protection. These include:

  • speech that promotes and incites actual, immediate and imminent violence and harm
  • fighting words
  • severe, pervasive and objectively offensive harassment that deprives the individual of equal access to resources
  • false advertising and
  • use of public resources for partisan politics.
  • But these exceptions are interpreted very narrowly most speech will still be considered protected under the First Amendment.

    Group Libel Hate Speech

    Robert Richards Quotes

    In Beauharnais v. Illinois,21 relying on dicta in past cases,22 the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white supremacy position, and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along with the following reasoning:

    In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.30 Such a prohibition does not discriminate on the basis of a defendant’s beliefs: as a factual matter, it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages.31

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    Clear And Present Danger Test

    Justice Oliver Wendell Holmes defined the clear and present danger test in 1919 in Schenck v. United States, offering more latitude to Congress for restricting speech in times of war, saying that when words are “of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent….no court could regard them as protected by any constitutional right.”

    Early in the 20th century, the Supreme Court established the clear and present danger test as the predominant standard for determining when speech is protected by the First Amendment.

    The Court crafted the test and the bad tendency test, with which it is often conflated or contrasted in cases involving seditious libels, that is, criticisms of the government, its officials, or its policies. It would be superseded by the imminent lawless action test in the late 1960s.

    The Supreme Court And The First Amendment

    During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”

    Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

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    Why Is Free Speech Important

    Our First Amendment rights are something that set us apart from other countries and societies. There are many examples throughout our countrys history of how the protection of speech has helped important causes, movements and people when others tried to silence them. We have the right to express ourselves freely and take a stand for what we believe in without fear of censorship or punishment from authority.

    3 Arguments in Defense of Free Expression

    Freedom Of Speech Does Not Include The Right:

    Does the First Amendment Protect Hate Speech?
    • To incite imminent lawless action.Brandenburg v. Ohio, 395 U.S. 444 .
    • To make or distribute obscene materials.Roth v. United States, 354 U.S. 476 .
    • To burn draft cards as an anti-war protest.United States v. OBrien, 391 U.S. 367 .
    • To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 .
    • Of students to make an obscene speech at a school-sponsored event.Bethel School District #43 v. Fraser, 478 U.S. 675 .
    • Of students to advocate illegal drug use at a school-sponsored event.Morse v. Frederick, __ U.S. __ .

    Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation.

    DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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    When Isnt Speech Protected

    Not all speech is protected under the First Amendment.

    Forms of speech that arent protected include:

    • Plagiarism of copyrighted material

    Speech inciting illegal actions or soliciting others to commit crimes arent protected under the First Amendment, either.

    The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I. The law prohibited interference in military operations or recruitment.

    Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the clear and present danger standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

    American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

    As Regulator Of Immigration

    The government may not criminally punish immigrants based on speech that would be protected if said by a citizen. On entry across borders, the government may bar non-citizens from the United States based on their speech, even if that speech would have been protected if said by a citizen. Speech rules as to deportation, on the other hand, are unclear. Lower courts are divided on the question, while the leading cases on the subject are from the Red Scare.

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    Speech Integral To Criminal Conduct

    In Giboney v. Empire Storage & Ice Co., the Supreme Court held the First Amendment affords no protection to speech or writing used as an integral part of conduct in violation of a valid criminal statute. A robbers demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech.

    As Regulator Of The Bar Protect The First 1st Amendment Free Speech T

    The basic principle behind government’s regulation of the bar has greater power to regulate the speech of lawyers. A balancing test is employed when the Court considers attorney speech. This test weighs “the State’s legitimate interest in regulating the activity in question the interests of the attorney”. Thus, while commercial advertising by lawyers is generally protected, rules of professional conduct and ethical guidelines are still permitted.

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    What Is Hate Speech And Is It Protected By The First Amendment

    Hate speech may be offensive and hurtful however, it is generally protected by the First Amendment. One common definition of hate speech is any form of expression through which speakers intend to vilify, humiliate or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability or national origin. Courts have ruled that restrictions on hate speech would conflict with the First Amendments protection of the freedom of expression. Since public universities are bound by the First Amendment, public universities must adhere to these rulings. However, universities also have an obligation to create a safe, inclusive learning environment for all members of the campus community.

    With these considerations in mind, courts in the United States have found that expression generally cannot be punished based on its content or viewpoint. Thus, although hate speech, alone, receives constitutional protection, any expression that constitutes a true threat, incitement to imminent lawless action, discriminatory harassment or defamation can be punished by UWM for those reasons.

    What About Hate Speech

    There is no legal definition of hate speech and it is not a category of speech that the courts have held is an exception to the First Amendment. In fact, the courts have made it clear that no one has a constitutional right to not be offended by speech. For this reason, what some may label hate speech is as fully protected as any other form of protected speech. People, including those in the SJSU community, are as free to condemn any category of individualwhether on the basis of race, religion, national origin, ethnicity, sexual orientation, citizenship status, political party, ideology, hair style or taste in music. Free speech protections only apply to speech and expressive conduct and not to an individuals actions. For example, hate crimes are regulated under both state and federal law. If you believe a hate crime has occured, contact the University Police Department.

    How much one values the First Amendment is tested most severely when the person who is speaking is saying things that we find offensive or hateful, or that we disagree with. Yet that speech is also protected because when the government has the right to suppress certain ideas, everyone is subject to censorship.

    SJSU thanks SDSU for permission to use their Freedom of Speech website content.

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    What Types Of Speech Are Protected By The First Amendment

    What exactly is in the First Amendment?

    Well, most importantly, and perhaps the source of so much misunderstanding, is that the Amendment begins with Congress shall make no law.

    Many people gloss over this part.

    They believe that the First Amendment personally guarantees THEM an inalienable right to speech, press, religion, and so on.

    But all it really covers is what Congress is not allowed to restrict through specific laws.

    Now, surprisingly, the First Amendment is only 45 words long.

    It opens with, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

    This is called the Establishment Clause.

    It means that Congress cannot favor a particular religion through legislature, nor can it legislate against the practice of a particular religion.

    This clause has been used to stop state-sanctioned prayer in public schools, as well as to remove several displays of the Ten Commandments in front of courthouses.

    It is also the basis of what is referred to as the separation between church and state.

    Freedom of Speech:

    Freedom of speech is used to justify a persons supposed right to publicly state anything they want. However, this is very far from the truth.

    There are a lot of situations where speech is extremely limited, and it is completely legal.

    Additionally, the Supreme Court has ruled that there are a number of exceptions to free speech.

    Freedom of press:

    Freedom of press is similar, but better understood.

    And, thats it.

    Speech On Government Property And In Government

    Does the First Amendment Protect Hate Speech? | Nadine Strossen

    The preceding sections have dealt with laws that apply even to speakers who are using their own resources on their own property. But the government has considerablethough not unlimitedpower to control speech that uses government property.

    Government employees, for example, may be fired for saying things that interfere with the employers efficiency. Elementary, junior high, and high school students may be disciplined for saying things that risk substantially disrupting the educational process or for using vulgarities at school. If the government gives people money to express the governments views, it may demand that the money not be used to express things the government does not want to support. Speech on government land or in government buildings usually may be limited, if the government does not discriminate on the basis of the viewpoint of the speech. Additionally, speech by prisoners and by members of the military may be broadly restricted.

    Speech on government-owned sidewalks and in parks is as protected against government suppression as is speech on the speakers own property. The same is true for speech by public-university students, at least when the speech is not part of class discussions or class assignments.

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    The Adoption Of Clear And Present Danger

    The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,21 it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the class struggle language of the constitution of the organization to which he belonged. A conviction for violating a red flag law was voided because the statute was found unconstitutionally vague.22 Neither case mentioned clear and present danger. An incitement test seemed to underlie the opinion in De Jonge v. Oregon,23 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,24 the Court narrowly rejected the contention that the standard of guilt could be made the dangerous tendency of oneâs words, and indicated that the power of a state to abridge speech even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.

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