Freedom of speech, press, assembly and petition, and their limits
Grade 12 Social Studies Worksheet
Circle the best answer.
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Schenck v. United States (1919), in our words: Charles Schenck and others mailed leaflets to men who had passed draft boards, urging them not to submit to the draft. He was convicted under the Espionage Act of 1917, and the Court upheld the conviction. Justice Holmes wrote for the Court: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Brandenburg v. Ohio (1969), quoted: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Background: Ohio had fined Brandenburg $1,000 under its criminal syndicalism law for a speech at a rally. The Court struck the law.
Jun reads cards SC and BR. What did Brandenburg change from Schenck's test?
- It dropped each limit on speech about law-breaking, so any advocacy is protected
- It asks for incitement of imminent lawless action that is likely, protecting more advocacy
- It protects speech solely in peacetime, while Schenck's test protected speech solely in war
- It protects less speech, since the word "likely" lets the government punish more
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Brandenburg v. Ohio (1969), quoted: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Background: Ohio had fined Brandenburg $1,000 under its criminal syndicalism law for a speech at a rally. The Court struck the law. Case T1 (made-up): At a calm meeting of 20 people, a speaker says that the government should be overthrown by force "someday", and gives no plan or date.
Kira reads card BR and case T1. A speaker says the government should be overthrown by force "someday". How does Brandenburg treat it?
- Protected; it is abstract advocacy, not aimed at imminent lawless action
- Neither test protects it, since the idea itself is dangerous to the government
- Schenck would protect it and Brandenburg would not, since the test is now stricter
- Protected solely if the audience agrees with the speaker's point of view
Use this
Brandenburg v. Ohio (1969), quoted: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Background: Ohio had fined Brandenburg $1,000 under its criminal syndicalism law for a speech at a rally. The Court struck the law. Case T2 (made-up): Outside a closed office, a speaker tells an angry crowd: "Break in now and smash the doors!" People begin to do it.
Esme reads card BR and case T2. A speaker tells an angry crowd to break in now, and people begin to. How does Brandenburg treat it?
- Not protected; it is directed to imminent lawless action and likely to produce it
- Not protected, since angry speech to a crowd falls outside the First Amendment
- Protected, since the crowd freely chose to act and the speaker did not
- Protected, since Brandenburg protects advocacy of the use of force
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Tinker v. Des Moines (1969), in our words: In December 1965, students wore black armbands to school to protest the fighting in Vietnam. The school had adopted a rule against armbands, and the students were suspended. The Court ruled 7 to 2 for the students. It wrote: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." It said the armbands could be banned only if they would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."
Luz reads card TK. What did the Court need to see before the school could ban the armbands?
- A statement from the principal that the armbands were disruptive to the school
- A showing that other students disagreed with the message on the armbands
- A rule the school had adopted in advance against armbands of any kind
- Evidence the armbands would materially and substantially interfere with discipline
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Tinker v. Des Moines (1969), in our words: In December 1965, students wore black armbands to school to protest the fighting in Vietnam. The school had adopted a rule against armbands, and the students were suspended. The Court ruled 7 to 2 for the students. It wrote: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." It said the armbands could be banned only if they would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Case T5 (made-up): A student wears a green ribbon to support a clean river. Classes go on as usual and nobody is disturbed.
Milo reads card TK and case T5. A student wears a green ribbon and nobody is disturbed. How does Tinker treat it?
- Not protected, since a ribbon is just an object and not a form of speech
- Not protected, since schools control any student expression on school grounds
- Protected; there is no material and substantial interference
- Protected solely outside school hours, when classes cannot be disturbed
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New York Times v. United States (1971), quoted from the Court's opinion: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." It added that the Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Background: the Government asked courts to stop newspapers from printing a secret study of the Vietnam war; the Court ruled for the newspapers, 6 to 3. Case T8 (made-up): A city judge orders a local paper not to print a story about the mayor's spending, before the story appears.
Pia reads card NY and case T8. How should a court treat the judge's order not to print?
- As valid, since the paper may still publish later and so loses nothing
- With a heavy presumption of invalidity; the city must justify it
- As valid if the story could embarrass officials, since officials may stop embarrassment
- As invalid without exception, since the press may print anything
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New York Times v. Sullivan (1964), in our words: A Montgomery, Alabama, official sued the New York Times over an advertisement that had errors, and a jury awarded him $500,000. The Court unanimously reversed. It held that a public official may win a libel case only by proving "actual malice": "with knowledge that it was false or with reckless disregard of whether it was false or not." Case T9 (made-up): A newspaper prints a false statement about a city official's conduct. The editor believed it was true after checking two sources, and had no reason to doubt them.
Tala reads card SU and case T9. The editor honestly believed the false statement. Can the official win a libel case?
- Yes, unless the statement was true, since truth is the sole defense available
- No, since an official's job makes any statement about the official allowed
- Yes, since false statements about officials fall outside the Constitution's protection
- No, not without proof of actual malice; an honest error is not enough
Use this
New York Times v. United States (1971), quoted from the Court's opinion: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." It added that the Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Background: the Government asked courts to stop newspapers from printing a secret study of the Vietnam war; the Court ruled for the newspapers, 6 to 3.
Zee reads card NY. What does a prior restraint mean, and who carries the burden?
- An order stopping publication; the press must show that its story is harmless
- A tax on publication; it is invalid whenever it is imposed on a newspaper
- An order stopping publication before it happens; the Government must justify it
- Punishment after publication appears; the Government must justify the punishment
Time, place and manner rule (our words)
Courts allow rules about when, where and how people speak, such as noise limits, if the rules apply equally to every message and leave other ways to reach an audience. Courts are suspicious of rules aimed at a message. Case T11 (made-up): A town bans loudspeakers only for speakers who criticize the mayor.
Bo reads the time, place and manner rule and case T11. A town bans loudspeakers only for speakers who criticize the mayor. Is it consistent?
- Likely no; it is aimed at a message, not at timing or manner
- Yes, since a town may choose any rule about loudspeakers
- No, because loudspeakers are protected more than any other kind of speech
- Yes, since criticism of officials is the kind of speech courts limit most
Time, place and manner rule (our words)
Courts allow rules about when, where and how people speak, such as noise limits, if the rules apply equally to every message and leave other ways to reach an audience. Courts are suspicious of rules aimed at a message. Case T12 (made-up): A rule forbids marches on the main street but offers a park across town for all marches.
Esme reads the time, place and manner rule and case T12. Which fact matters most for judging the march rule?
- Whether it treats all messages alike and leaves other ways to reach an audience
- Whether the marchers are members of an organized group with a leader
- Whether the mayor likes the marchers' message, since the mayor is elected
- Whether the main street is busier than the park across town offered to marchers