3.3 First Amendment: Freedom of Speech

Free speech is not absolute

The First Amendment protects freedom of speech, but the Supreme Court allows some restrictions. In Schenck v. United States (1919), the Court established the "clear and present danger" test, ruling speech can be limited if it creates an immediate danger, like falsely shouting fire in a crowded theater. Speech inciting imminent lawless action, obscenity, and true threats can be restricted.

Symbolic speech protections

Symbolic speech (actions expressing a message, like wearing armbands) is protected. In Tinker v. Des Moines (1969), students wore black armbands to protest the Vietnam War; the Court ruled schools can't restrict expression unless it substantially disrupts the educational environment, establishing students don't "shed their constitutional rights" at school.

Balancing speech and order

Courts balance individual liberty with societal order and safety. Later cases refined Schenck's standard—Brandenburg v. Ohio (1969) replaced "clear and present danger" with the stricter imminent lawless action test, protecting more speech unless it's likely to incite immediate illegal action.

Key terms

Schenck v. United States (1919)

Established the 'clear and present danger' test, allowing restriction of speech that poses immediate danger.

Tinker v. Des Moines (1969)

Ruled that symbolic speech (armbands protesting Vietnam War) is protected unless it substantially disrupts school activities.

Symbolic speech

Non-verbal expression of a message or viewpoint, such as protest actions, protected under the First Amendment.

Brandenburg v. Ohio (1969)

Replaced 'clear and present danger' with the 'imminent lawless action' test, giving broader protection to speech.

Imminent lawless action test

Standard allowing restriction of speech only if it's likely to incite immediate illegal activity.

Try an AP-style question

In Tinker v. Des Moines (1969), students wearing black armbands…

1. could be suspended for any reason
2. lost all speech rights at school
3. were protected unless disruptive
4. violated the establishment clause