Street Law: A Course in Practical Law

Chapter 37: Freedom of Speech

Chapter Overviews

The Importance of Freedom of Speech  First Amendment rights are the foundation of democracy in the United States. They help to create an open society in which people have the ability to share and discuss differing opinions and beliefs. In the United States, people's opinions and beliefs do not have to be the same as those of the government or even the majority. Minority viewpoints are protected. There are times when the government can regulate the time, place, and manner of speech. Generally, however, it cannot censor the content of protected expression.

Obscenity  Obscenity is one form of personal expression that the government regulates. The U.S. Supreme Court determines a work to be obscene if sex is depicted in an offensive or illegal manner and the work lacks serious literary, artistic, political, or scientific merit. Definitions of obscenity can vary according to state law.

Defamation  The First Amendment does not protect defamatory expression. Defamation is a false expression that damages another person's reputation. A person who intentionally spreads such false information can be held legally accountable. Defamatory speech that is spoken is called slander. Defamatory speech that is written is called libel.

Commercial Speech  Most advertising is considered commercial speech. Commercial speech does receive some First Amendment protection. However, the government may restrict commercial speech that is false, misleading, or promotes a product, service, or conduct that is illegal.

Fighting Words, Offensive Speakers, and Hostile Audiences  In order to maintain public peace and order, the government may have to decide between protecting a person's right to free speech and protecting the public from dangerous situations. The Constitution does not protect speech that encourages people to perform dangerous or illegal acts. Also, the First Amendment does not generally protect abusive language, called fighting words. Many people disagree over whether such speech should be censored and punishable by the law.

Time, Place, and Manner Restrictions  While some laws regulate the content of people's expression, others regulate when, where, and how expression can be used. Reasonable regulations of time, place, and manner are usually upheld by the courts.

Symbolic Speech  Symbolic speech is a form of expression that conveys an idea without using words. The courts have guidelines to determine whether certain conduct should be protected under the First Amendment as symbolic speech.

Vagueness and Overinclusive Laws  Due to the great importance of freedom of expression, laws regarding speech must be clear and understandable and must not prohibit any expression that should be protected.

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