HY 357 Lecture Notes - Lecture 50: Flag Protection Act, Symbolic Speech, Imminent Lawless Action
6 Jun 2018
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The First Amendment: Freedom of Speech
The key question with free speech is what constitutes "speech" itself. One view separates public
or political speech from private speech, holding that the latter may be limited with respect to the
rights of others. The Supreme Court has protected certain kinds of speech in certain
circumstances but not all kinds of speech. There are two important limitations on freedom of
speech: speech cannot threaten the public order or be obscene.
Political speech
In Schenck v. United States (1919), Justice Oliver Wendell Holmes stated that freedom
of speech could be restricted if the speech represented a clear and present
danger; the example he gave was that a person could not shout, "Fire!" in a crowded
theater that was not on fire. Through the early years of the Cold War, the clear and
present danger test was used to limit the free speech of socialists and communists. The
Supreme Court upheld the Smith Act (1940) that made it a crime to advocate the
overthrow of the government by force. Under Chief Justice Earl Warren, the Court took
the position that political speech was protected under the First Amendment unless it
incited "imminent lawless action" or was "likely to produce such action."
Public speech
Nonpolitical public speech may not be to everyone's taste, and the Supreme Court has
had to consider laws that restrict it. Some statements are deemed fighting words and
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