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What Is Freedom of Speech?

The First Amendment of the United States Constitution guarantees the freedom of speech whereas it states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Over the years, the United States Supreme Court has struggled to determine exactly what constitutes protected speech. Some jurists believe that freedom of speech is unconditional while others believe that the United States Constitution places limitations on speech under certain conditions. The prevailing thought is the latter; whereas it grants a person the right not to speak. For example, declining to salute the flag of the United States as in the case of West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) or to engage in symbolic speech like flag burning as in Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

In 1989, the United States Congress passed the Flag Protection Act (18 USC § 700) which reads: “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.” There were several challenges to this act two of the seminal cases are Texas v. Johnson and United States v. Eichman. In both cases, the actors set fire to the United States Flag as a form of protest. The question posed to the United States Supreme Court: Whether or not the First Amendment right of free speech protected their actions? The Court ruled that flag burning is considered protected speech under the First Amendment.

The Court has also been called upon to decide what is not protected speech such as inciting actions that would harm others (yelling ‘fire’ in a crowded movie theater), students making obscene speech during school sponsored events, Bethel School District #43 v. Fraser, 478 U.S. 675 (1986), or to print articles in a school newspaper over the objections of the school administration, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

In Bethel v. Fraser, Fraser a male student, gave a speech during a public assembly where he nominated another male student, used an “elaborate, graphic and explicit sexual metaphor” aka “Double entendres” which means that he used words capable of two meanings: (1) obvious interpretations (2) subtle interpretation usually sexually suggestive to describe him. Fraser’s speech was as follows:

“I know a man who is firm – he’s firm in his pants, he’s firm in his shirt, his character is firm – but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts – he drives hard, pushing and pushing until finally – he succeeds. Jeff is a man who will go to the very end – even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he’ll never come [long pause] between us and the best our school can be. He is firm enough to give it everything.”

Fraser was suspended for two days and the father filed a lawsuit in federal District Court alleging violates of Fraser’s First Amendment right to free speech. The Court ruled in favor of Fraser. Bethel appealed. The Court of Appeals affirmed the lower court’s decision in favor of Fraser. Bethel appealed to the United States Supreme Court. The Supreme Court ruled, however, that it was appropriate for the school to prohibit the use of obscene and offensive language. Chief Justice Warren Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech and “it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education.”

In Hazelwood School District v. Kuhlmeier, journalism students in Hazelwood East High School were in the process of publishing a school-sponsored newspaper. One issue featured stories on teen pregnancy and divorce. The school’s principal thought the stories were inappropriate and prior to the publication, he deleted the two pages containing the stories without informing the journalism students. The students were upset because they had not been given the opportunity to make changes. The students felt their First Amendment rights had been violated, they filed suit in the United States District Court for the Eastern District of Missouri. The Court sided with the school, ruling that the school had the authority to remove and regulate speech they deemed appropriate. The students appealed the decision to the U.S. Court of Appeals for the Eighth Circuit. The appeals court reversed the lower court, finding that the paper was a “public forum” and that school officials could censor its content only under extreme circumstances. The school appealed the decision to the United States Supreme Court and reversed the appellate court decision ruling that a school does not have to allow student speech if it is inconsistent with the schools’ educational policy.