The school

Symbolic speech

• Protected

  • Tinker - kids wore armbands to school peacefully protesting the Vietnam war. Protected because it didn't interfere with educational processes

  • Johnson - flag burning was protected because there was a clear political message that fell into the category of expressive conduct.

  • RAV - it was too broad to ban burning of the stake when taking into consideration the circumstances

• Not protected

  • O’Brian - burning the draft card was not protected because it was government property

  • Black - burning the cross was not okay because it caused imminent danger to the people around

Standard for political speech

• Schenck v. United States

  • Clear and present danger doctrine

  • Government may only punish speech if it has a danger of bringing about conditions that the government has the authority to protect

• Imminent Lawless Action Standard

  • Brandenburg v. Ohio - televised KKK demonstration

  • Court held that the government can not prevent speech if it likely to incite or produce imminent lawless action (start a riot)

Actual malice/NYT v. Sullivan

• Defamation: injuring someone’s reputation through false statements (slander or libel); tort - civil penalties

• New York Times v. Sullivan

  • Facts: Sullivan sued over ads attacking officials in the South for police responses to civil rights demonstrations

  • Created the “actual malice” test

  • A public official may only collect damages for a falsehood relating to his/her official conduct if he/she proves the statement was made with actual malice (meaning knowledge it was false or with reckless disregard for the truth)

Public forum

• Public forum: relates to the right to assemble and express; given broad protections

• Public forum includes streets, parks, government opened properties for public use

• Legality of activities in public forum determined on basis of “time, place, and manner”

• NOT public forum

  • Jail facility (Adderly v. FL)

  • Private shopping mall

    • Places do not lose private character just because public is allowed

  • Airports

    • Krishna: ruled no

    • Court never specified (could argue yes in light of travel ban protests)

• IS a public forum

  • Outside government buildings

  • Parks, city centers

  • Sidewalks

    • Outside abortion clinics the buffer zone is not violative of public forum