Chapter 3-Speech Distinctions

Does the 1st Amendment protect speech?
Yes, but there are some limits.

What if the speech causes great harm?
Supreme Court often weighs competing interests to determine which right or value is more important.

National Security
Laws that suppress speech because they threaten national security.
Ex.
Alien and sedition Act of 1798 (US PREOARING FOR WAR WITH FRANCE)
INDIVIDUAL RIGHTS V. SECURITY
USA Patriot Act (2001) (US and the war on terrorism)
Espionage Act (1917) and Sedition Act (1918) (US and WWI)
*National Security usually outweighs free speech.

Chaplinsky v. New Hampshire
USSC, 1942
Fighting words doctrine
Chaplinsky distributing Jehovah’s Witness pamphlets
Residents were upset, so police arrested Chaplinsky
He called a police officer a “goddamned racketeer” and a “damned fascist”
Convicted for disturbing the peace

USSC upheld his conviction
Why?
His words fall outside of 1st Amendment protection
Fighting words ”by their very utterance inflict injury or tend to incite immediate breach of peace”

1st Amendment does not protect speech that is 1) directed at an individual and 2) inherently likely to inflict emotional harm and/or trigger immediate violence.

Legal Protest
So, if a speaker intends to incite violence, then he or she loses 1st Amendment protection.
USSC values free speech- nearly everything, but when speech incites violence, then the 1st Amendment no longer applies.
Job of police is to maintain order, not arrest speakers and protesters
Multiple court decisions hold that hostile audiences cannot silence lawful speakers.
1ST Amendment protects lawful assemblies from disruption by opponents if
1) The assembly is legal
2) The assembly is orderly and nonviolent
3) Hostile onlookers create the threat of disruption or disturbance of the peace

Schenck v. United States
USSC, 1919
Charles Schenck mailed some 15,000 pamphlets urging men to dodge the draft
He was convicted for violating the Espionage Act

Unanimous decision: Schenck’s speech (mailing the pamphlets) created a “clear and present danger” to the nation.
*Clear and present danger created during this case

Gitlow v. New York

USSC, 1925
Gitlow, a socialist, distributed literature calling for socialism in the US
No evidence of harm or distribution
Gitlow argued he was protected by 1st Amendment
USSC upheld Gitlow’s conviction on criminal anarchy charges and for advocating the overthrow of the gov’t
Justice Holmes, in dissent, writes that