I. The Intent of the Framers
A. the framers had 2 main worries...
1. they feared official
(govt.) censorship of the people
2. they feared that the
people would use freedom of speech to incite violence, riot, and revolution
B. the 1st Amendment, therefore, only applies to
the government
1. it only prevents the
govt. from restricting our speech
2. private businesses are
not prevented from doing so
II. Schenck v. US (1919)
A. Charles Schenck handed out pamphlets urging young
men to dodge the draft during World War I.
B. Schenck was arrested for violating the Espionage
Act of 1917
C. His lawyers challenged his arrest, claiming that
his 1st Amendment rights to free speech were violated.
D. The Supreme Court upheld his arrest and conviction,
stating the following.....
1. speech is not free if
it creates a "clear and present danger" of either harm or illegal activity.
(translated: if your speech
creates a good chance that someone will be harmed or will break the law,
your speech IS NOT protected)
2. in order to be prosecuted,
your speech must incite "immediate lawless action"
III. Yates v. US (1957)
A. the govt. cannot punish someone for advocating
illegal action as "abstract doctrine" that doesn't advocate a specific
action. (translated:
if what you say is abstract and vague, it will probably be protected)
B. Example of this ruling in action:
1. 1973: A group protesting
the Vietnam War blocked the street during their protest. When a police
officer ushered them
to the sidewalk, one protester said, "We'll take
the street later."
2.
The protester was arrested for disorderly conduct.
3.
Should his speech have been protected?
a. Yes, it should have been protected. 2 reasons why...
1. He advocated action that was abstract & vague (the Yates
ruling). "We'll take the street later" could have
meant many different things. In other words, he did not advocate a specific
action.
2. He advocated an action that would take place in the "indefinite future."
It was not a call for "immediate lawless
action."
IV. Fighting Words
A. Fightng words are:
words that would cause the average person to retaliate, thereby
breaking the peace.
B. Fighting words are not
protected by the 1st Amendment
C. Trouble with this statement:
what is the standard for deciding who is average? This standard
is very subjective.