The Right to Free Speech

Troublemakers ◽  
2019 ◽  
pp. 11-50
Author(s):  
Kathryn Schumaker
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Student Activism ◽  
Voter Registration ◽  
School Segregation ◽  
Constitutional Rights ◽  
Freedom Summer ◽  
Des Moines ◽  
The Right ◽  
The U.S

This chapter examines how two student free speech cases, Burnside v. Byars and Blackwell v. Issaquena County, emerged out of the 1964 Freedom Summer voter registration campaign in Mississippi in 1964. This chapter argues that the two cases were the result of increased student activism following Freedom Summer and that these two First Amendment cases were the result of conflict over the broader issues of racial discrimination and school segregation in Mississippi. These cases were eventually cited in the U.S. Supreme Court lawsuit Tinker v. Des Moines, which established the constitutional rights of all students and led to increased litigation. This chapter explains how the rationale in these cases focused on whether students were considered disorderly, and it argues that concepts like disorder can be racially coded and therefore affect the perception of student actions differently based on the race of students and the context of the action.

The Dynamic Free Speech Clause

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Constitutional Rights ◽  
Relational Dynamics ◽  
Free Exercise ◽  
Second Amendment ◽  
The Press ◽  
The Common ◽  
Rights Discourse ◽  
The Right ◽  
Speech Clause

This book examines the relational dynamics between the U.S. Constitution’s Free Speech Clause and other constitutional rights. The free speech guarantee has intersected with a variety of other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. Free speech principles and doctrines have facilitated the recognition and effective exercise of constitutional rights, including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has dominated rights discourse and subordinated or supplanted free press, assembly, petition, and free exercise rights. Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. The book examines the common and distinctive dynamics that have brought free speech and other constitutional rights together. It assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also to tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Where to limit the freedom of speech? Analysis in the context of the First Amendment to the US Constitution and the fighting words doctrine

2021 ◽  
Vol 37 (2) ◽  
pp. 239-256
Author(s):  
Karolina Palka
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
National Socialist ◽  
The Us ◽  
Us Constitution ◽  
Socialist Party Of America ◽  
The Right

This article is about the limits of the right to free speech. The first section provides a brief introduction to this topic, primarily in the context of the First Amendment to the U.S. Constitution. The second section describes the case of Chaplinsky v. New Hampshire, which was fundamental to the topic of this paper because the United States Supreme Court created the so-called "fighting words" doctrine based on it. In the next two sections, two court cases are presented that perfectly demonstrate the limits of the right to free speech in the United States: Snyder v. Phelps and Village of Skokie v. National Socialist Party of America. The fifth part shows the right to freedom of speech in the context of Polish civil, criminal, and constitutional law, as well as acts of international law binding on Poland. The last part is a short summary.

Heckler’s Veto

2020 ◽  
pp. 220-232
Author(s):  
Rodney A. Smolla
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Legal Counsel ◽  
City Manager ◽  
Modern Times ◽  
The Right ◽  
The City

This chapter draws attention to Craig Brown and Lisa Robertson, who were the principal in-house lawyers providing legal counsel to the city manager and council of Charlottesville. It investigates Brown and Robertson's view that any attempt at outright cancellation of the Unite the Right rally would be immediately overturned by courts as a violation of the First Amendment. It also explains “heckler's veto” as a free speech jurisprudence that raises the rhetoric of defiance and confrontation that could help counterprotesters to shut down the rally. The chapter discusses the First Amendment in modern times that generally stands against acceding to the power of heckling counterprotesters in order to cease messages with which they disagree. It clarifies that when hecklers and protesters gather to express their disagreement with a speaker's message, the rights of that speaker are in tension.

An Inconsistent Jurisprudence: The Doctrinal Spectrum

2020 ◽  
pp. 93-136
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Affirmative Action ◽  
First Amendment ◽  
Free Speech ◽  
Fourteenth Amendment ◽  
Commerce Clause ◽  
Constitutional Jurisprudence ◽  
The U.S

This chapter explores Justice Antonin Scalia’s constitutional jurisprudence across the broad range of issues he addressed. The chapter shows that he contradicted his originalist jurisprudence in interpreting the First Amendment (both its free speech and religion clauses) as well as the Fourth, Fifth, and Eleventh Amendments, and that he did the same in construing a variety of other constitutional doctrines including those involving standing, the treaty power, affirmative action, the Commerce Clause, the Fourteenth Amendment, and the U.S. Supreme Court’s own appellate jurisdiction. The chapter argues that he frequently twisted, ignored, and abandoned his jurisprudential principles and methodologies he proclaimed and that the principal consistency his decisions and opinions reveal was his commitment to his own ideological goals and values.

Material and Substantial Disruption/Infringement of Rights

2015 ◽  
pp. 62-83
Keyword(s):  
School District ◽  
First Amendment ◽  
Free Speech ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
Community School ◽  
Student Speech ◽  
School Authority ◽  
Des Moines ◽  
Speech Clause

This chapter focuses on the Tinker v. Des Moines Independent Community School District (1969) case – the first United States Supreme Court decision about student speech under the Free Speech Clause of the First Amendment. It discusses the two tests established in Tinker v. Des Moines Independent Community School District for determining the scope of school authority over student speech. These tests are the “material and substantial disruption” test and the “infringement-of-rights” test. The ultimate goal of the chapter is to analyze the Tinker v. Des Moines Independent Community School District case in order to determine if it authorizes schools to censor off-campus student speech.

Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence

Legal Theory ◽  
1998 ◽  
Vol 4 (1) ◽  
pp. 39-61 ◽  
Author(s):  
Susan J. Brison
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Body Problem ◽  
Mind Body Problem ◽  
The Right ◽  
The Mind ◽  
Pro Choice

“Sucks and stones will break my bones,” Justice Scalia pronounced from the bench in oral arguments in Schenck v. Pro-Choice Network, “but words can never hurt me. That's the First Amendment,” he added. Jay Alan Sekulow, the lawyer for the petitioners, anti-abortion protesters who had been enjoined from moving closer than fifteen feet away from those entering an abortion facility, was obviously pleased by this characterization of the right to free speech, replying, “That's certainly our position on it, and that is exactly correct …”

scholarly journals Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

2015 ◽  
Vol 15 (2) ◽  
pp. 197-223
Author(s):  
Mary Margaret Roark
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
New Era ◽  
The Public ◽  
Definition Of ◽  
The U.S

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach.

Civil Rights and Schools: Tinker v. Des Moines

2020 ◽  
Author(s):  
Kathryn Schumaker
Keyword(s):  
Young People ◽  
Civil Rights ◽  
Secondary Schools ◽  
School Administrators ◽  
Constitutional Rights ◽  
Supreme Court Ruling ◽  
School Officials ◽  
Des Moines ◽  
Public School Classroom ◽  
The Right

The 1969 Supreme Court ruling in Tinker v. Des Moines established that students in public elementary and secondary schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Before Tinker, students often faced punishment from school officials for their role in protests both on and off campus. A rise in civil rights protests and the role of young people in the social movements of the 1960s led to frequent conflicts between students and school administrators. Many black students were especially vocal in contesting racial discrimination at school in the two decades following the 1954Brown v. Board of Education decision. But before Tinker, students in public elementary and secondary schools were not considered to have any constitutional rights, including the right to free expression. Some of these students brought lawsuits in response to punishments they believed unfairly disciplined them for participating in legitimate protests. The political activism of young people and developments in First Amendment law eventually brought the Constitution into the public school classroom, leading to Tinker and other cases that established students’ rights.

Introduction

2020 ◽  
pp. 1-22
Author(s):  
Adam S. Chilton ◽  
Mila Versteeg
Keyword(s):  
Research Methods ◽  
Free Speech ◽  
Research Question ◽  
Theoretical Explanation ◽  
Constitutional Rights ◽  
Right To Education ◽  
Main Research ◽  
Freedom Of Movement ◽  
Formal Organizations ◽  
The Right

This chapter introduces our main research question: do constitutional rights make a difference? For instance, if a country constitutionalizes free speech, does that improve respect for free speech in practice? It also describes the research methods we use to answer this question and previews our core findings: five rights that are practiced on an individual basis—the right to free speech, the prohibition of torture, the freedom of movement, the right to education, and the right to healthcare—are not associated with better rights practices, while three rights that are practiced by and within organizations (“organizational rights”)—the freedom of religion, the right to unionize, and the right to form political parties—are associated with higher levels of respect for those rights in practice. The chapter further provides a summary of our core theoretical explanation for these findings: to enforce constitutional rights, rights violations need to be politically costly, and formal organizations are better equipped to impose such costs than unorganized citizens.

The Return of Labor Principles: Conflict or Harmony?

2019 ◽  
pp. 145-156
Author(s):  
Gamonal C. Sergio ◽  
César F. Rosado Marzán
Keyword(s):  
Property Rights ◽  
Free Speech ◽  
Labor Law ◽  
The United States ◽  
Constitutional Rights ◽  
International Labor Standards ◽  
International Labor ◽  
Liberal Societies ◽  
Free Speech Rights ◽  
The U.S

Chapter 6 acknowledges that labor law principles are not the end-all for all labor law cases and controversies. Labor law may conflict with other laws and their principles, complicating adjudication. The chapter discusses two major conflicts between labor law and other law, particularly in the United States, but likely also present elsewhere: constitutional rights concerning property and free speech. The U.S. Supreme Court has held in ways that essentially sustain that labor law conflicts with property rights and free speech and, in addition, must cede space to property rights and free speech. The U.S. doctrine of permanent strike replacements, which violates international labor standards, is based on protecting employer property rights. The recent Janus v. AFSCME decision outlawing compulsory union service fees in the public sector is based on protecting individual free speech. But such conflicts need not be. By understanding labor law principles and how labor norms operate, we should recognize that labor law protects workers’ property rights and their capacity to consume, which better guarantees the health of capitalism and societal property rights generally. Moreover, labor law provides a voice to workers, who would be otherwise subordinated. As long as labor norms stem from democratic processes, labor norms should respect constitutional free speech rights. Labor law can thus live side by side with important constitutional principles. Given the importance of property rights and free speech in contemporary, liberal societies, the U.S. case can help warn other jurisdictions from heading down the same erroneous jurisprudential path.

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