Erin teaches undergraduate and graduate classes in Political Science, Public Policy, and Public Administration and has a PhD in Political Science.
In the First Amendment to the Constitution, there are several important personal protections that are identified. You have the right to express yourself, to practice your religious beliefs, to publish the news. The freedom of speech, however, is the most broad of any of these rights. It is important to remember that it includes your right to spoken and unspoken, or nonverbal, expression. First, we will talk about how your speech can be dangerous to others, and then we will look at some examples of nonverbal, but protected, expression.
The Supreme Court has held that there are some reasonable restrictions on what we can say and where. For example, it is unsafe to yell 'Fire!' in a crowded movie theater, because it could create a panic and someone could be trampled. Your right to free speech does not extend to saying anything you want in any context.
In the earliest free speech cases, the government wanted to restrict the rights of protesters to object to the government's actions. In the 1900s, the Court heard two related cases, Abrams v. United States (1919) and Schenck v. United States (1919). In these cases, men were accused of breaking the Alien and Sedition Acts, which punished them for speaking out against the United States during wartime. The Court decided that in both cases, the men were creating a clear and present danger by opposing the government and supporting the enemy. The clear and present danger doctrine argues that speech can be restricted if it leads to a likely threat to the safety of others.
However, the government does not have the power to restrict speech simply because they do not like it. Over time, the decision of the Court to allow the Alien and Sedition Acts to stand has been extremely restricted. Now the government cannot stop speech simply because they do not like its content. The standard of clear and present danger has been overturned by the doctrine of imminent lawless action. This means that to say that speech can be restricted, you must prove that the speech directly threatens someone's safety. For example, a person with a megaphone at a protest, shouting at the crowd to set fire to a building, which they then go and do, can be held accountable for the fire. You cannot encourage someone to break the law, or else you are partially responsible for the consequences of their actions too. In the case of Brandenburg v. Ohio (1969), the Court reviewed an Ohio law that made it illegal to advocate, or speak out in favor of, violence or terrorism. The Ohio law was overturned because the speech was not the direct cause of violence, or ''imminent lawless action.''
Speaking Without Words
A second area of related free speech litigation is concerned with nonverbal expression. The Court has also heard many cases that help define when a person's right to express herself is protected, even if she is not speaking out loud. For example, a 19-year-old man named Paul Cohen protested the draft of soldiers to serve in the Vietnam War by wearing a jacket with profanity on it to a public building (Cohen v. California, 1971), for which he was arrested and convicted of breaking a law governing offensive conduct. The Court agreed that the young man was executing a form of protected political speech by wearing the jacket, even though it was not spoken but only written.
In a related case, United States v. O'Brien (1968), a young man named David O'Brien burned his Vietnam War draft card and was arrested. Here, the decision emphasized that political speech should be highly protected but the government has a right to make laws that support the functioning of governance. For this reason, it was acceptable to make it illegal to interfere with the administration of a draft. The Court argued that he could have chosen another method of protesting Vietnam without affecting the draft itself.
Free speech cases demonstrate how we have a right to express ourselves. This right has been restricted at times, especially when the United States is at war. Political speech is usually more carefully protected than other forms of speech which may be considered a nuisance to others.
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