Freedom of speech and the press

The AP U.S. Government exam expects you to know several landmark Supreme Court cases and the constitutional principles they established. Rather than memorizing every detail, focus on the constitutional issue, the Court’s ruling, and how each decision defines the limits and protections of freedom of speech and freedom of the press. You should also be able to apply these precedents to new scenarios on the exam.

Schenck v. United States

Amendment and provision: First Amendment (freedom of speech).

Facts:

• During WWI, Philadelphia socialists Charles Schenck and Elizabeth Baer handed out 15,000 pamphlets claiming that the draft violated the Thirteenth Amendment’s ban on involuntary servitude and encouraged people to “peacefully” disobey the draft.
• They argued that forcing people to join the military was forcing them to work against their will. Schenck was charged with violating the Espionage Act of 1917 (which prevented people from spreading information that would interfere with a war effort) because he encouraged young American men to rebel against the draft in an attempt to prevent people from joining the military during World War I.
• The United States government prosecuted Schenck and Baer for violating the Espionage Act. Schenck and Baer argued that distributing leaflets was protected by the First Amendment. They lost at the district court level, served six months in jail, and later appealed to the US Supreme Court. Schenck argued that the First Amendment right to freedom of speech was violated and that a specific section of the Espionage Act was unconstitutional.

Question: Did Schenck’s conviction for violating the Espionage Act violate his First Amendment right to freedom of speech?

Holdings and reasoning:

• The Supreme Court unanimously ruled against Schenck in favor of the US. The Court ruled that Schenck’s First Amendment rights were not violated. The decision argued that Schenck was not just freely expressing his opinions; he was actively telling men to avoid the draft, which did interfere with the government’s legitimate interest to conduct a war, and therefore, Schenck’s pamphlet was not protected speech.
• One of the justices compared the leaflets to yelling “Fire” in a crowded theater, which is not protected since it would reasonably lead to harm.
• The Court ruled that during times of war, any speech that presents “a clear and present danger” would give the government more control to regulate freedom of speech.

Citizens United v. FEC

Amendment and provision: First Amendment (freedom of speech).

Facts:

• A federal law, the Bipartisan Campaign Reform Act (BCRA) passed in 2002, prohibited corporations and labor unions from issuing ads referring to candidates within 60 days of a general election and 30 days of a primary election.
• A conservative group called Citizens United made a movie about Hillary Clinton, arguing that she was unqualified to run for President.
• Citizens United wanted to show this movie right before the primaries and argued that preventing them from showing it violated their freedom of speech. They filed a lawsuit against the FEC (Federal Election Commission), whose job it is to enforce election laws.
• The intent of BCRA — and a concern of the FEC — is that groups flood the airways with electioneering communications right before an election.

Question: Is the federal law McCain-Feingold Act, preventing electioneering communications (any form of broadcast that refers to a candidate and is publicly distributed within 90 days of an election), a violation of the freedom of speech provision of the First Amendment?

Holdings and reasoning:

• The Supreme Court declared that the 30–60 day ban is a violation of freedom of speech.
• The Court argued that the law reduced the quantity of expression and restricted the number of issues discussed and the size of the audience reached, while the media can do the same thing.

Tinker v. Des Moines

Amendment and provision: First Amendment (freedom of speech).

Facts:

• John F. Tinker (15 years old) and Christopher Eckhardt (16 years old) attended high school in Des Moines, Iowa. They were petitioners along with John’s little sister, Mary Beth Tinker, a 13-year-old in junior high.
• In December 1965, a group of students and adults opposed to the Vietnam War and wanting the war to end gathered at Eckhardt’s house and decided to share their opinions on the war and express their support for a truce at school.
• They wore black armbands during the holiday season and fasted on December 16 and New Year’s Eve.
• The administration of the Des Moines schools found out about the plan to wear armbands.
• The school met on December 14, 1965, and created a new policy stating that anyone wearing an armband would have to remove it or be suspended until they removed it, because the protest could disrupt the learning environment.
• On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they came back without their armbands. They did not return to school until after the planned period for wearing armbands had expired — that is, until after New Year’s Day.
• While the students were suspended, their parents sued the school district for violating the students’ right to freedom of speech.
• The U.S. District Court for the Southern District of Iowa sided with the school’s position because it also shared the view that the armbands could disrupt learning.
• The students appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit but lost. They then appealed the case to the Supreme Court.

Question: Does prohibiting students from wearing armbands in public schools, as a form of symbolic protest, violate their right to freedom of speech guaranteed by the First Amendment?

Holdings and reasoning:

• The Court concluded that the wearing of armbands is “symbolic speech,” which is “akin to pure speech,” and therefore protected by the First and Fourteenth Amendments.
• The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. The majority of the Supreme Court interprets freedom of speech as an umbrella term that includes speech-connected activities.
• The Supreme Court ruled that students do not shed their constitutional rights at the schoolhouse gate.
• The evidence showed that the disruption was minimal at best. Therefore, the school did not have sufficient compelling interest to ban the black armbands.
• The Court ruled that school officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under the Constitution. They have fundamental rights that the state must respect, just as they themselves must respect their obligations to the State.
• The record showed that students in the school wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these symbols. Instead, a particular symbol — black armbands worn to exhibit opposition to this nation’s involvement in Vietnam — was singled out for prohibition.
• The Court ruled that the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

New York Times v. United States

Amendment and provision: First Amendment (freedom of the press).

Facts:

• In 1967, Robert McNamara, the Secretary of Defense at the time, ordered a comprehensive and classified study of the Vietnam War. This study was a massive, 7,000-page, 47-volume archive that documented 23 years of U.S. involvement in Vietnam, stretching back to the Truman administration.
• The findings were extremely important. The document showed that multiple presidents, from Truman to Johnson, had misled the American public about the Vietnam War. The government had secretly expanded the war into Cambodia and Laos through bombing campaigns that were never reported to the public or approved by Congress. The study revealed that officials doubted the war could be won, but for some reason they continued to escalate the conflict, costing thousands of American lives.
• This study was never meant to be seen by the public. It was classified as top secret, hidden from both the media and Congress.
• Daniel Ellsberg, a former military analyst who had worked on the Pentagon Papers, was deeply angered by the lies and deception revealed in the study. He believed that the American people had a right to know what their leaders had been hiding about the war.
• In 1971, Ellsberg secretly photocopied the entire study. He first tried to share the documents with several U.S. Senators, hoping they would make the information public. When that failed, Ellsberg turned to the New York Times.
• The Times spent three months reviewing the documents in secret, working out of a hotel room to verify the information. On June 13, 1971, they published the first article in what would become known as the Pentagon Papers series.
• The first article revealed details about secret bombing campaigns in Cambodia and Laos, manipulated elections in South Vietnam, and continued escalation of the war despite private doubts about its success.
• The Nixon administration responded very quickly and promptly. Attorney General John Mitchell demanded that the Times stop publishing immediately, arguing that the publication of these documents posed a threat to national security.
• When the Times refused to stop the publication of the Pentagon Papers, the US government went to court and secured a temporary restraining order, blocking further publication. This marked the first time in American history that the federal government had successfully censored a newspaper before publication. The ability of the government to stop the publication of a newspaper before it is published is referred to as prior restraint.

Question: Did the Nixon administration’s efforts to prevent the publication of the Pentagon Papers violate the freedom of the press provision of the First Amendment?

Holdings and reasoning:

• The Court ruled that the U.S. government had failed to prove an immediate and specific threat to national security. Therefore, the prior restraint was unconstitutional.
• The ruling established five key principles:
  • There is a heavy presumption against prior restraint.
  • The government faces an uphill battle whenever it tries to block publication of news articles.
  • Press freedom is fundamental even in cases involving national security.
  • The public’s right to know outweighs general claims of secrecy.
  • Government transparency is essential to a functioning democracy.

Definitions

Bill of Rights

The first ten amendments to the United States Constitution

Clear-and-present-danger test

The principle established in Schenck v. United States that speech creating a clear and immediate danger may be restricted

Electioneering communication

A broadcast referring to a candidate that is publicly distributed shortly before an election

Espionage Act

A federal law that prohibits actions interfering with the nation’s military efforts or national security during wartime

Prior restraint

Government censorship that prevents information from being published before it is released

Symbolic speech

Nonverbal expression intended to communicate a message that is protected by the First Amendment