This course offers an introduction to the U.S. Constitution and landmark Supreme Court cases interpreting it. It explores the Constitution’s origins, its amendment over the years, and methods of constitutional interpretation. Topics include the nature and structure of the federal government, the powers of the federal government, and individual rights.
Class 10: Freedom of Speech
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Introduction to Key Constitutional Concepts and Supreme Court Cases
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University of Pennsylvania
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Amendments and the First Amendment
This segment first explores constitutional amendments, including the Bill of Rights, and the Reconstruction and Progressive-era Amendments. Then, we will take a detailed look at one of the most important amendments: the First. We will learn about the constitutional protections for speech and religion, how they have changed over time, and how they apply to various circumstances. Finally, we will learn about the Establishment Clause and what it means in today's society.
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Professor Kermit Roosevelt, IIIProfessor
Law
>> Free speech, free exercise of religion, and
freedom from government establishments of religion.
All these freedoms are protected by the First Amendment.
We can spend weeks and
weeks talking about it, but we're going to hit the high points in just one module.
We're going to talk about the general principles behind these freedoms.
And we're going to look at some specific applications of these principles.
So, we're going to start talking about individual cases now.
We're going to start meeting the people who shaped our constitutional history.
Native Americans who want to use Peyote in religious rituals,
students who want to pray before a high school football game.
And we'll start with a girl named Mary Beth.
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Mary Beth Tinker wore a black armband to school.
She did this to express her opposition to the Vietnam war.
School officials didn't approve.
They suspended her.
They said she could come back only if she agreed not to do it again.
They wanted to control her expression.
Can they do that?
That's a first amendment question.
The first amendment is one of the really big amendments.
It's got three different important clauses.
One about speech and two about religion.
This week we're going to talk about all three, and
we're going to start with the speech clause.
What is the basic idea here?
There are different theories out there, but something that was certainly present
was the idea that free speech is essential to democracy.
In a democracy, the people are supposed to govern.
They're supposed to have the final say on policy.
Indirectly, of course, but we the people are supposed to be the ultimate authority.
We're supposed to govern ourselves.
And we can't do a good job of that unless we have good information.
Free speech is how that good information comes out.
The idea here isn't that all opinions are equal.
It isn't even that more opinions are better necessarily, it's really that we
don't trust the government to decide what speech should be heard.
Here's justice Stephen Breyer with more.
>> So, so you say you have to draw a line, you have to stick to the line.
The line has to b e that, that free speech is there not for
people we like, and not for people who have popular views.
It's there for people we hate.
It's there for the ones who are the most bigoted, terrible,
awful, awful people we can think of.
And it's there for them because if it isn't there for
them maybe some day it wouldn't be there for us.
That's the argument.
Well, that's the argument we've pretty much accepted here.
>> We do trust the people.
We trust that the marketplace of ideas will sort good ones from bad ones.
So the First Amendment, like most of the Constitution,
only applies when the government tires to restrain speech.
What is says is that Congress shall make no law abridging the freedom of speech.
But should it only apply to Congress?
Could it be that the President can tell the FBI to shut up protestors?
That wouldn't make much sense.
So the Supreme Court has said, it applies to the whole Federal government.
And, because of the 14th Amendment, remember,
this free speech right is also a right that people can invoke against the states.
That's why Mary Beth can raise it against school officials who are state officials.
But what does it mean?
Free speech is a huge and complicated topic because there are so
many contexts in which free speech might be implicated.
We've got to decide what counts as speech, for one thing.
How about political contribution?
Burning a flag or a draft card?
Nude dance, music?
Abstract art?
Yes, the Supreme Court says to all those things.
Speech ends up being defined very broadly.
Anything that could in any way convey an idea or
emotion can count as speech, so the armband counts.
And not just political speech, but speech on any topic.
Because speech is an essential right.
It defines who you are.
Here's Justice Anthony Kennedy with more.
>> It's who you are.
We define ourselves by what we say, by what we read,
by what we think, by what he hear, by what we sing, by what we pray.
This is who we are.
This is our self definition.
And we define ourselves, the government does not define us.
>> Which again, just makes things harder.
Because it increases the number of situations in which the government might
restrain speech.
The other thing that increases the number of situations,
where free speech issues come up, is the growth of the government.
We're going to see this again with the religion clauses of the First Amendment.
The general issue is this, it means one thing to
say that the government can't restrain speech when the government is small.
When it doesn't do much.
If the government is, to oversimplify a bit, just the police.
Then we can see there may not be many situations where it makes sense to
allow speech restrictions.
And here you might think of the classic first amendment speaker,
the guy out on the street corner, complaining about the government.
The police shouldn't be able to shut him up, that's an easy First Amendment case.
Here's Justice Breyer with more.
>> We start with a principle.
And the principle is one we can pretty much agree on.
The Constitution says, Congress shall not abridge the freedom of speech.
That means all government, not just Congress.
But it doesn't say what the freedom of speech is, does it?
So, that's left to people to work out.
Now, we started with what I think is the easiest principle,
because it's the most widely accepted.
That the worse thing you can do by way of abridgment is
stop somebody from talking because you don't like what he says.
Now, that's called his view point or it's called his, the,
the content or the expression or the point of view.
Now, it's easiest to say well, certainly that's protected,
but even there you can find some borderline cases.
And now we begin to move away from that and
say, does it matter if he's 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?
Does it matter why it's said?
Does it matter?
Does it matter?
Does it matter?
And these are not just asked.
Which we were doing, to make it difficult for you.
They were asked because that's what happens in a court.
It's concerned with free speech.
We get one variation after another, and
we have to decide what the principles are in these very different circumstances.
And that isn't so easy, because the only thing we all agree upon is, whatever
the principle is in this case, it's going to be the same for all similar cases.
>> But what if the government is your employer?
What if it's your school principal?
As the government gets bigger, we get more citizen-government interaction.
And we get different kinds, kinds that aren't so easy to think about.
And that's maybe the hardest thing about Mary Beth Tinker's case.
The government isn't acting as a ruler here, it's not making and enforcing laws.
It's educating children.
So what kind of speech rights should public school students have?
Well, it's kind of a hard question.
On the one hand, public school officials are definitely the government.
So, one way of looking at Tinker is to say, school officials work for
the state just like police officers, so of course, the first amendment applies.
But should it apply in exactly the same way?
One thing that makes the government different,
as far as the Constitution goes,
is the kind of power it has, the power to lock you up.
There's no private person out there who can tell you what to do
in the way the police can.
But there are private school principals, and
they can definitely discipline students for speech they don't like.
So another way to look at Tinker is to say,
wait, this is nothing more than a private school principal can do.
Restricting speech, in some ways, is just part of the job.
School teachers grade people's tests.
They give them good and bad grades, based on what they said.
They keep order in the classroom.
They punish people for speaking out of turn.
And what the Supreme Court ends up saying is yes,
students do have first amendment rights.
But we're going to have a different analysis of what violates those rights.
If school officials have a reasonable fear of disruption,
they can punish students for speech.
This is also basically the rule that the court follows with
other governmental institutions.
With people who work for
the government, or people who are in prison, or in the military.
If speech will interfere with the institutional mission, it can be punished.
Now, Mary Beth Tinker wins with this test,
because there was no reasonable fear of disruption.
But students, or government employees, don't always win.
Sometimes there might be a reasonable fear of disruption.
And later cases suggest that disruption isn't the only thing that can
justify punishment.
Interference with the school's educational mission includes more than disruption.
It might include lewd or indecent speech.
It might include speech that promotes illegal drug use.
And this test also leaves open some hard questions.
When is speech by students considered school speech?
What if it's on the Internet?
The Supreme Court has split five,
four in some of these more recent cases, which illustrates a more general point.
There are easy cases, and there are hard cases.
The Supreme Court gets mostly hard cases, although often they look easier 10 or
20 years afterwards.
But remember that there's a lot of easy constitutional law out there.
Now that said,
the First Amendment is an area where we're going to see some hard ones.
And one of the things that make them hard is changes in the world.
In particular, the role and the scope of government.
And we'll see this in the next couple of classes, too.
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