Substantive Law Study Support

Questions for Review and Answers

1. What are the five rights included in freedom of expression?

Freedom of expression includes speech, press, assembly, petition, and religion.

2. Discuss the theories explaining why speech should be constitutionally protected.

Marketplace of Ideas: The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
Political Speech: Political speech is a key part of American self-governance. American democracy is founded on free speech. This is the most highly protected form of speech.

Tolerance: The protection of speech promotes tolerance. If tolerance is the goal, then protection of distasteful speech is an act of tolerance.
Autonomy: The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affronts the individual’s worth and dignity.

3. What are the different types of speech that are constitutionally protected?

All forms of speech are protected, including pure speech and speech plus. This includes symbolic speech or actions as well as words.

4. Why do political campaign finance laws involve freedom of speech issues?

The Court accepts the philosophy that “money is speech.” Political campaign finance laws often involve limits on spending or on sources of money. With limited funds, candidates have limited opportunities to spread their message.

5. What types of speech are not constitutionally protected?

Obscenity, fighting words, and speech intended to incite illegal action are not protected. Defamation, hate speech, speech in public schools, and commercial speech have limited protection.

6. What are some of the free speech issues of students in public schools?

Some of the issues concern clothing restrictions, the right of school officials to censor school newspapers, and the right of school officials to limit speech on campus when it is disruptive to the learning process. School authorities have some rights to limit speech if they are acting in furtherance of a legitimate educational mission.

7. What types of conduct are not protected by the right to assembly?

Any conduct that is not “peaceful” is not constitutionally protected. Thus, conduct such as blocking roads is not protected.

8. Compare and contrast the right to a free press with the rights of criminal defendants.A free press has the right to attend and report events of criminal cases. However, under the Sixth Amendment, the defendant has the right to a fair trial. A defendant is entitled to a fair and impartial jury and press reports can affect this. When these two rights collide, the Court often has the power to place some restrictions on the rights of the press (such as banning cameras in the courtroom). However, no court can ban the press from reporting information about criminal defendants.

9. What is the reporter’s privilege, and what are some of its limitations?

The reporter’s privilege generally refers to the right of the press not to reveal its sources. Reporters have no constitutional privilege to do this, although it is allowed by some state laws. Reporters, like all citizens, are subject to grand jury subpoenas and search warrants.

10. When can the government require the press to disseminate information?

Government has very limited rights to require press to disseminate information. The fairness doctrine requires that political candidates be given time to respond to political editorials or personal attacks on television and radio.