Constitutional Issues Freedom of Expression The Facts 1. The First Amendment has been raised to examine such issues as prayer in the schools, hate speech, school dress codes and others. 2. The Free Speech Clause of the First Amendment is intended to remove governmental constraints from public discussion and diversity of opinion, which are essential to decision-making in our democracy. The Supreme Court has interpreted "speech" to include such symbolic forms of expression as the wearing of buttons or armbands, as well as artworks and music. 3. In Texas v. Johnson, 491 U.S. 397 (1989) the Supreme Court held that burning the flag was a protected form of symbolic political speech. 4. In Brandenberg v. Ohio, 395 U.S. 444 (1969), the Supreme Court overturned the conviction of a Ku Klux Klan leader under a statute that prohibited advocating crime to accomplish reform. The Court said that such advocacy was protected unless it used "fighting words." The Court defined "fighting words" in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) as those that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." 5. In Tinker v. Des Moines School District 393, U.S. 503 (1969), the Supreme Court held that the First Amendment protects public school students' rights to express political and social views. In this case, students had worn black armbands to protest the Vietnam War. *See an online conversation between students and the Tinker plaintiffs (Law Day feature 1998). 6. The U.S. Supreme Court has ruled that courts can regulate noise and create a no-entry, 36-foot buffer zone around the entrance to abortion clinics without violating protestors' free speech rights. 7. Several states and municipalities have tried to limit offensive speech through "hate speech" laws, legal constraints on what people may communicate to one another in spoken words, in writing or through expressive conduct. In 1992 the Supreme Court found a St. Paul, Minnesota hate speech law unconstitutional because it only banned selected types of "fighting words." 8. The First Amendment bars the government from establishing a religion and protects the free exercise of religion. The Supreme Court has often been called upon to reconcile the sometimes conflicting demands of the "free exercise" and "establishment" provisions of the First Amendment. Discussion Questions When is it constitutional to limit speech? Are laws regulating "hate speech" (e.g. making racial slurs or ethnic jokes, displaying burning crosses or swastikas) unconstitutional? If so, on what grounds? How far can government go in forcing people to be "nice"? Does regulating such speech promote or inhibit diversity? How would a constitutional amendment banning flag-burning or one allowing prayer in public schools affect the freedoms guaranteed in the Bill of Rights? Would such changes advance or inhibit a diversity of opinion? Some school districts around the country have tried to resist gang violence and other problems by imposing student dress codes. Are dress codes unconstitutional restrictions on free expression? Is restricting dress in one school and not in another an abridgement of the Fourteenth Amendment's Equal Protection Clause? Speech Ideas/Talking Points Home | Constitutional Issues Home Tips on Volunteering Home