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C O U R S E 
Key Constitutional Concepts and Supreme Court Cases
Professor Kermit Roosevelt, III, University of Pennsylvania
C O U R S E   L E C T U R E 
Freedom of Speech
Notes taken on February 6, 2015 by Edward Tanguay
First Amendment
freedom of speech
freedom of the press
right to peaceably assemble
right to seek the assistance of the government without fear of punishment
freedom to exercise a religion
freedom from government establishments of religion
Mary Beth Tinker
1965 wore a black armband to school
expressed her opposition to the Vietnam War
school officials didn't approve and suspended her
told her she could come back if she agreed not to wear the black armband
they wanted to control her expression
freedom of speech
free speech is essential to democracy
the people in a democracy are supposed to govern
for this you need good information
free speech is how good information comes about
doesn't mean that all opinions are equal
doesn't mean that more opinions are better
the main idea of the freedom of speech clause is that we don't trust the government to decide what speech should be heard
free speech is not there for
people we like
people who have popular views
free speech is there for the market place of ideas
we trust that the market place of ideas will sort the good ideas from the bad ideas
the amendment says
"Congress shall make no law abridging the freedom of speech"
does this mean that the President can tell the FBI to shut up protestors?
Supreme Court has said it applies to the whole of the federal government
and because of the 14th Amendment
free speech can be invoked against states
this is why Mary Beth Tinker could raise the freedom of speech clause against school officials who are state officials
complicated topic
what counts as speech?
political contributions?
burning a flag or a draft card?
nude dancing?
abstract art?
yes, the Supreme Court says, to all these things
speech ends up being defined very broadly
anything that could in any way convey and idea or emotion can count as speech
so Mary Beth Tinker's armband counts
it's one thing to say tha the government can't restrain speech when it is small, when it can't do much
the man on the street speaking against the government
the police shouldn't be able to shut him up
this is an easy first-amendment case
the worst thing you can do by the way of abridgement is to try to stop someone from talking because you don't like what he's saying
does it matter if he is in the army?
does it matter if he's in high school?
does it matter if he's in grammar school?
does it matter what the subject is?
does it matter when it's said or why it's said?
we ask these questions because this is what is asked in a court that is concerned with protecting free speech
we have to decide what the principles are in these very different circumstances
whatever we decide in this case, it's going to be the same for all similar cases
as the government gets bigger, we get more government/citizen interaction
what if the government is your employer?
what if the government is your school principle?
people can't generally act on your like police officers can
but there are high school principals who have more power of your than the average citizen
you might argue that teachers grade tests based on what students say, and so curbing speech is a part of the characteristics of school
the Supreme Court ruled
if school officials have a reasonable fear of disruption, they can punish students for speech
this is pretty much the same for people who work for the government, for prisons and the military
if speech will interfere with the institutional mission, it can be punished
Mary Beth Tinker won because there was no fear of disruption
other tough questions
when is speech by students considered school speech
what if it's on the Internet
one of the things that makes decisions on what the Constitution protects is changes in the role and scope of government