3.3 First Amendment: Freedom of Speech

The First Amendment to the United States Constitution, as a refresher, is one of the most important amendments and provides for a number of key liberties, including freedom of speech. This amendment guarantees individuals the right to express themselves freely, without fear of government censorship or repression. This right is considered to be one of the cornerstone rights of American democracy and has been the subject of much debate and discussion over the years. 🎊

Freedom of speech is a broad concept that encompasses many forms of expression, including written, spoken, artistic, and symbolic expression. This right is considered to be essential for the functioning of a democratic society, as it allows individuals to express their opinions, ideas, and beliefs freely and openly. This freedom is not absolute, however, and there are certain limits and exceptions, such as speech that incites violence or threatens national security.

The balance between order and individual freedoms are also expressed in the freedom of speech clause. The AP exam will test your knowledge of two related court cases: Tinker v. Des Moines Independent Community School District (1969) and Schenck v. United States (1919).

The Supreme Court of the United States has made clear that symbolic speech is protected under the First Amendment of the Constitution. This means that the right to express oneself through symbols and gestures, as well as through words, is protected. This principle was demonstrated in the landmark case of Tinker v. Des Moines Independent Community School District (1969). 🏫

In this case, a group of public school students (particularly a teenager named John Tinker) were suspended for wearing black armbands in school to protest the Vietnam War. The students sued with the help of the American Civil Liberties Union (ACLU), claiming that their First Amendment rights were being violated. The Supreme Court agreed and held that the students had the right to express their views through symbolic speech, even if it was disruptive or unpopular. The Court recognized that public schools are limited public forums and that students do not lose their constitutional rights when they enter the school gates.

The decision in Tinker v. Des Moines is significant because it established that symbolic speech is protected by the First Amendment and that the government cannot censor or restrict such speech simply because it is controversial or unpopular. This case has been widely cited in subsequent court cases and has become a cornerstone of First Amendment jurisprudence.

The protection of symbolic speech is an important aspect of the First Amendment and is essential for a functioning democracy. It allows individuals to express their views and opinions in creative and expressive ways, even if they are not popular or widely accepted. This freedom is critical for fostering a vibrant and open society, where individuals have the right to express themselves freely and openly.

Schenck v. United States was a landmark case that dealt with the issue of freedom of speech and its limits in the context of wartime. Charles Schenck, a Socialist, was arrested for handing out pamphlets urging men not to enlist in World War I. He was convicted under the Espionage Act of 1917, which made opposition to the US entering the war a treasonable offense. 🕵️

Schenck's attorney argued that the Espionage Act violated the First Amendment's guarantee of free speech. However, the Supreme Court ruled that Schenck's actions were not protected by the First Amendment. The Court held that the government had a legitimate interest in preventing speech that posed a clear and present danger to the nation during a time of war.

The Schenck case also established the "clear and present danger" test, which is used to limit First Amendment rights when they pose a significant threat to the safety or well-being of American citizens. A famous example of this test was provided by Justice Oliver Wendell Holmes, who argued that falsely shouting "fire!" in a crowded theater was not protected speech because it would cause panic and endanger lives.

The Schenck case is important because it established that freedom of speech is not absolute and can be limited in certain circumstances, such as during times of war or when speech poses a clear and present danger to the public. The "clear and present danger" test has been used in subsequent cases to determine when speech can be restricted.