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By sunshinecavalluzzi
On January 16, 2019
Bell Ringer: Freedom of Speech
Weighing Free Expression and Public Order
Business and civil litigation attorney Daniel Kornstein discusses the Supreme Court's decision in Brandenburg v. Ohio, the general doctrine of speech in public forum areas, and the decisions and balancing acts involved with free speech restrictions.
Description
The First Amendment guarantees that "Congress shall make no law...abridging the freedom of speech." Although that language sounds straightforward, the Supreme Court has been consistently asked to interpret what speech is and is not protected under that guarantee. They have affirmed repeatedly that free speech implicitly includes free expression- the right to communicate a belief even if that communication is nonverbal. (Nonverbal communication of an idea, such as wearing an armband or holding a sign, is often referred to as "symbolic speech") Can a protester burn an American flag or a draft card? Can a student unfurl a "Bong Hits for Jesus" sign during a school event? Can a publication print an untrue story about a celebrity? Can a newspaper print sensitive government documents? Can a student be suspended for using innuendo in a student council nomination speech? These are just a few of the questions the Supreme Court has answered in the past sixty years as they have evaluated issues of free speech.
Bell Ringer Assignment
- According to Daniel Kornstein, what was the SCOTUS decision in Brandenburg v. Ohio? How did it relate to the clear and present danger standard and how does it relate to regulating hate speech?
- What, according to Daniel Kornstein, is the general doctrine regarding free speech in the public forum area?
- What does Justice Harlan mean by the quote “it is nevertheless often true that one man’s vulgarity is another’s lyric” (from Cohen v. CA)?
- What are three examples of the ways, according to Professor Shepard, that “offense” has been “a contentious concept in First Amendment law”?
- In the Supreme Court case of Texas v. Johnson, Justice Brennan, delivering the majority opinion, wrote that "“If there is a bedrock principle underlying the First Amendment , it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” How is this concept, sometimes referred to as "viewpoint neutrality," reflected in some of the other Supreme Court decisions discussed in the clips?
- AP Government - Questions to Consider: How might concurring and dissenting opinions be of particular relevance in free speech cases? What are some connections between the cases referenced in the clips and the AP Landmark SCOTUS Cases pertaining to free speech? How does the concept of "reasonable time-place-manner restrictions" related to the weighing discussed by Kornstein? How does that weighing reflect the notion of the social contract?
Additional Resources
Participants
Vocabulary
- 1st Amendment
- Brandenburg V. Ohio
- Constitution
- First Amendment
- Freedom Of Speech
- Hate Speech
- Incitement To Imminent Lawless Action
- Intent
- Majority Opinion
- Prima Facie
- Public Forum
- Supreme Court
- Symbolic Speech
- Texas V. Johnson
- Viewpoint Neutrality