This chapter adopts a novel approach to treat a number of distinct speech topics of interest to communication students. The purpose is to emphasize the societal interests that compete with, and sometimes overcome, First Amendment interests.
A central thread of the chapter is society’s desire for peace, tranquility, safety, and order. Controversial speech, whether political, religious, or ideological, is perceived by many, including many members of the Court, as a threat to these important societal concerns. Of primary interest here is the almost inevitable effect of ad hoc balancing to place greater weight on societal interests rather than on the individual interests of a single speaker. Thus, this chapter should highlight the strong potential for ad hoc balancing of competing rights to lead to silencing of disfavored speech.
At the same time, this chapter should encourage students to develop sensitivity to the potential of absolutist interpretations of the First Amendment to undermine very substantive and significant societal interests. In summary, the chapter covers this material:
First Amendment protections are not absolute. History shows that expression tends to be more susceptible to government restraints during wartime. The government may restrict the freedom of expression when it establishes a sufficiently important interest in doing so. Protecting the national security is a sufficiently important concern to outweigh speech protection under certain conditions. The Court has said, however, that the First Amendment does not allow government to silence a speaker because the government or the general public prefers not to hear comments it finds unsettling. In evaluating laws that limit speech, courts tend to balance the interests at stake, usually categorically.
After discarding the overly suppressive “bad tendency” test early in the 20th century, courts used the “clear and present danger” test to determine the proper balance between freedom of speech and harmful incitement of lawless activity. Under this loose test, courts asked whether the words used had a tendency to create the kind of danger lawmakers might constitutionally prevent. In early 20th-century rulings, the Supreme Court used the test in several First Amendment cases and frequently upheld the constitutionality of laws that overtly constrained unpopular political speech. The test was fine-tuned over the years and eventually evolved into the current Brandenburg test. Under the Brandenburg incitement test, the Constitution prohibits government punishment of advocacy of an idea unless the speech is meant to and likely to produce imminent illegal action.
The U.S. Constitution protects the right to express ideas in an offensive manner because effective speech has both cognitive and emotional content. While the First Amendment protects most forms of offensive speech, the U.S. Supreme Court has established fighting words as a disfavored category of speech. Fighting words are words that automatically harm or are likely to provoke immediate retaliation from their target. Efforts to regulate such disfavored speech must be well tailored to the government’s objectives. The Court has suggested that laws that target highly offensive speech are constitutional only if they are extremely narrowly tailored to address real and demonstrable harms. The Supreme Court has not established “hate speech” as a specific category of speech. The Court’s most relevant decisions suggest that attempts to prohibit unpopular or racist speech as a subset of fighting words will rarely be constitutional. The Supreme Court generally has said the Constitution prohibits punishment for vague statements with distant or speculative harms, but in recent years the Court has developed the concept of “true threats.” When speech becomes an overt act of threat or intimidation it may be regulated. Online speech that promotes acts of terror or other illegal activities may be subject to regulation and punishment. Courts rarely hold medialiable for incitement of illegal activity or harm by another because their content is not the proximate cause of the harm.
The Constitution protects the right to express ideas in an offensive manner because effective speech has both cognitive and emotional contents, but there are limits that are not clearly defined. The Supreme Court has established fighting words as a disfavored category of speech. Efforts to regulate such disfavored speech must be well tailored to the government’s objectives. The Court has suggested that laws that target highly offensive speech are constitutional only if they are extremely narrowly tailored to address real and demonstrable harms. The Supreme Court has not established “hate speech” as a specific category of speech. The Court’s most relevant decisions suggest that attempts to prohibit unpopular or racist speech as a subset of fighting words will rarely be constitutional. The Supreme Court generally has said the Constitution prohibits punishment for vague statements with distant or speculative harms, but in recent years the Court has developed the concept of “true threats.” This evolving area of the law is unsettled and unclear, but it appears that when speech threatens or intimidates a specific group or individual with real harm, that speech might be subject to regulation and punishment. What constitutes a threat, whether online threats pose more extensive risks, whether artistic expression limits the harm, etc., were questions raised but unanswered by the Supreme Court in Elonis v. United States. This lack of clarity may undermine the historical doctrine that merely violent, disturbing or even highly offensive words and images deserve full First Amendment protection.
The U.S. Supreme Court has recognized that certain symbolic acts are a form of speech that implicates the First Amendment. Rulings on speech acts suggest that non-disruptive political protest is generally protected from government regulation. One exception was a draft card burning case in which the Supreme Court upheld criminal punishment on the grounds that the cards were vital to the efficient operation of the draft and the military, which is a government interest of the highest order.
U.S. Supreme Court precedents establishing the constitutional limits to regulation of threats and objectionable speech inside schools and universities are complicated, drawing fine distinctions and turning on specific facts. Case outcomes hinge on statutory language, the intensity of the threat or offense, and the societal interest in either protecting vulnerable groups or permitting robust discussion. The courts also rely on different analytical strategies to decide cases involving speech in public schools. Public forum analysis turns on whether the schools have intentionally established a forum for public discussion. Hazelwood applied public forum analysis to media directed and sponsored by high schools. The Tinker test focuses on whether the speech disrupts core educational functions, while the Fraser approach turns on the role of schools as venues for developing habits of civility.
Few bright lines or broad precedents exist in this evolving area of First Amendment law. Government generally may curb the language reaching school children to advance educational goals, but universities have a greater obligation to afford forums for wide-ranging expression of opinion on campus. However, several appeals courts recently applied Hazelwood to limit the extent of free speech on college campuses. Another developing line of cases affirms the authority of universities to sanction student speech that does not meet professional standards. These rulings blur the once bright-line distinction between permissible limits on speech in public schools and in universities.
I. National Security and Tranquility
- Threats to National Security
II. Evolving Court Tests to Protect Disruptive Speech
- From a Bad Tendency to a Clear and Present Danger
- From Clear and Present Danger to Incitement
III. Do Media Incite Harm?
- Physical Harms
IV. Can Words Hurt You?
- Offensive Speech
- Fighting Words
- Hate Speech
- Current Standard
- Harmful Images
- Intimidation and Threats
V. Symbolic Speech
- Burning Speech
VI. Speech in the Schools
- Public Forum Analysis
- The Tinker Test
- The Fraser Approach
- The Hazelwood Test
- Choosing the Proper Test
- Campus Speech
- Speech Codes
- Other Harms