Curated legal resources & perspectives on the profession
First Amendment: Speech
Abrams v.S., 250 U. S. 616, 630 (1919) (Holmes, J., dissenting): protection of speech for free trade in ideas, even those that are distasteful to people
Schenck v. U.S., 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919): free speech & falsely shouting “fire” in a theater
Meyer v. Nebraska, 262 U. S. 390 (1923): Due Process clause of 14th Am “prevents States from forbidding the teaching of a foreign language to young students.” (506) (Also: we’re not in the business of creating cookie-cutter citizens; see Meyer, at 402.)
Pierce v. Society of Sisters, 268 U. S. 510 (1925): First Amendment rights of parents to direct their children’s education
Whitney v. CA, 274 U. S. 357, 374 (1927) (Brandeis, J., concurring): State can’t prohibit speech even if it’s socially abhorrent.
Stromburg v. California, 283 U. S. 359 (1931): protected speech: displaying a red flag (Communist party association) against CA state law.
West Virginia v. Barnette, 319 U. S. 624 (1943): types of symbolic acts protected by First Amendment: compulsory flag salute.
Thornhill v. Alabama, 310 U. S. 88 (1940): speech acts protected by First Amendment: picketing.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942): limited occasions when state may regulate speech: fighting words as unprotected speech (Word Doc Summary)(PDF Summary)
McCollum v. Board of Education, 333 U. S. 203 (1948): religious education in public school setting violated student’s First Amendment rights
Terminiello v. Chicago, 337 U. S. 1 (1949): city’s breach of peace ordinance violated right of expression
Sweezy v. New Hampshire, 354 U. S. 234 (1957): state could not compel disclosures from witness (Due Process case)
Engel v. Vitale, 370 U. S. 421 (1962): reading of school prayer & establishment clause of 1st Am
Edwards v. South Carolina, 372 U. S. 229 (1963): speech acts protected by First Amendment: Civil Rights protesters—freedom of speech, assembly, and petition.
NYT v. Sullivan, 376 U.S. 254 (1964): defamation as unprotected speech
Cox v. Louisiana, 379 U. S. 536, 554 (1965): rights of free speech & assembly don’t give people permission to give speeches anywhere and whenever they please.
Brown v. Louisiana, 383 U. S. 131 (1966): speech acts protected by First Amendment: Civil Rights
Burnside v. Byars, 363 F. 2d 744 (5th Cir. 1966): the wearing of symbols can’t be prohibited unless there’s a substantial disruption of the learning environment.
Keyishian v. Board of Regents, 385 U. S. 589 (1967): NY’s provisions that public servants (such as profs at State University) renounce Communism are so overly broad and vague that they are unconstitutional. (Marketplace of ideas necessary for robust nation; Brennan, at 603.)
U.S. v. O’Brien, 391 U. S. 367, 376-377 (1968): Draft card burning: governmental interest outweighed freedom of expression. Symbolic speech. (Word Doc Summary)(PDF Summary)
Ginsberg v. New York, 390 U. S. 629 (1968): sale of sexually explicit magazines to a teen; obscenity not within area of protected speech when it came to minors. Stewart concurred, emphasizing minors’ incapacity for decisionmaking.
Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam): incitement to lawlessness as unprotected speech
Watts v. U.S., 394 U.S. 705 (1969): speech with threatens unlawful violence may be unprotected: gov’t may criminalize true threats, but not political hyperbole (Word Doc Summary)(PDF Summary)
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969): if student speech does not cause substantial disruption in the school setting, it is protected. (Word Doc Summary)(PDF Summary)
Cohen v. CA, 403 U. S. 15, 20 (1971): Court struck down adult’s conviction for disorderly conduct because he wore a jacket with an obscenity about the draft on it into a courthouse.
Miller v. CA, 413 U.S. 15 (1973): obscenity as unprotected speech
Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043 (2nd Cir. 1979): Students suspended for producing satirical publication, some of which was worked on at the school. Distribution happened off-campus and after hours, and most of the work was done away from school. Nexus was de minimis.
Hazelwood School District v. Kuhlmeier (U.S. 1988): school newspaper, articles on pregnancy & divorce. School control over school-sponsored speech.
Texas v. Johnson, 491 U.S. 397 (1989): state may not proscribe speech that society finds offensive
R. A. V. v. City of St. Paul, 505 U.S. 377 (1992): state may not proscribe speech it doesn’t like. Cross-burning & overbroad ordinance targeting certain content of speech/nonverbal expression. (Word Doc Summary)(PDF Summary)
Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 771 (1995): The burning of a cross is a “symbol of hate”
Saxe v. State College Area School District, 240 F.3d 200, 213 (3d Cir. 2001):re. lewd, vulgar, offensive speech (not protected); reasonable projection of disruption is sufficient to restrict student speech
State v. Perkins, 243 Wis. 2d 141 (2001): objective “true threat” test—reasonable listener
J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 807 A.2d 847 (Pa. 2002): First Amendment and true threat doctrine: okay to regulate harmful speech (Word Doc Summary)(PDF Summary)
Virginia v. Black, 538 U.S. 343 (2003): true threat doctrine & intent to intimidate (cross-burning as presumptively indicating intent to intimidate in VA statute, but SCOTUS disagreed because it could be just an “ideological statement,” and no statute should suppress ideas). (Word Doc Summary)(PDF Summary)
Morse v. Frederick, 551 U.S. 393, 127 S.Ct 2618, 168 L.Ed.2d 290 (2007): banner promoting drugs at off-campus school event. Special school environment & interest in NOT promoting drug use meant that Frederick’s 1st Am rights were not violated by punishment. LOCATION of event (outside schoolhouse gates) was superseded by PURPOSE (school event).
Wisniewski v. Bd. of Educ. Of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007): student speech on internet
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008): student speech on internet: class officer posted insults towards admins on blog, and was prevented from running for senior class secretary. Foreseeable risk of substantial disruption due to off-campus speech.
U.S. v. Parr, 545 F.3d 491 (7th Cir. 2008): subjective/objective test of true threat—it’s perceived as threatening (objective), and was intended as such (subjective).
Layshock ex rel. Layshock v. Hermitage School District, 650 F.3d 205 (3rd Cir.2011) (en banc): First Amendment student speech(MySpace profile of principal): off-campus, did not cause substantial disruption, so protected. (Word Doc Summary)(PDF Summary)
J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir.2011) (en banc): no substantial disruption, so off-campus speech was protected. Interesting issues raised in concurrence & dissent, tho, about ubiquitous nature of internet.
Elonis v. U.S., 575 U.S. ___ (2015): “holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence.” (Knox, 1157) (Word Doc Summary)(PDF Summary)
Commonwealth v. Knox, 190 A.3d 1146 (Pa. 2018): true threat doctrine and rap lyrics. See notes on dissent by Justice Wecht for variety of subjective/objective evaluations of true threats across circuit courts. (Word Doc Summary)(PDF Summary)