User:Jsember22/Pure speech

Pure Speech

Pure Speech in United States law is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea. It is distinguished from symbolic speech, which involves conveying an idea or message through behavior. Pure speech is afforded the highest degree of protection under the First Amendment to the U.S. Constitution.

History and Origins

First Amendment

"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."

Pure Speech was first coined in 1965, in the United States Supreme Court Case, Cox v. Louisiana. When analyzing whether a Louisiana statute which prohibited obstructing public passage ways, the Court declined to extend the free speech protections. Justice Goldberg writing for the court stated, "The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy." Cox v. Louisiana, 379 U.S. 536, 554 (1965). He added, "We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." Id. at 555.

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), Justice Fortas explained that pure speech and protected symbolic or expressive speech are closely akin. Id. at 505.

Tests For Protection and Limitations

The First amendment of the United States Constitution explicitly protects the freedom of speech. The protections extends to both oral and written speech. When State Action (local, state, or federal government) attempts to limit an actor's pure speech, the state action must satisfy strict scrutiny. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.

Justice Fortas, writing for the majority in Tinker v. Des Moines Independent Community School District, wrote, "pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment." Tinker, 393 U.S.at 506 (1969).

Limitations on Pure Speech

While pure speech is explicitly protected by the First Amendment to the U.S. Constitution, the United States Supreme Court has established limitations on when the speech is constitutionally protected and when it is not. In United States v. Stevens, 559 U.S. 460 (2010), Chief Justice John Roberts, writing for an 8-1 majority, stated, "From 1791 to the present...the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations."

Constitutional Bans on Pure Speech

Categorical Exceptions To First Amendment Protection

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Supreme Court upheld New Hampshire's criminal statute, Chapter 378, Section 2, of the Public Laws of New Hampshire, "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation." Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942).

On a public sidewalk in downtown Rochester, Chaplinsky was distributing literature that supported his beliefs as a Jehovah's Witness and attacked more conventional forms of religion. Chaplinsky referred to the town marshal "a God-damned racketeer" and "a damned Fascist." He was arrested and convicted under the New Hampshire statute. The Court issued a unanimous opinion with Justice Murphy writing the opinion. He reasoned that the First Amendment does not protect certain categorical exceptions such as obscenities, certain profane and slanderous speech, and fighting words. These categorical exceptions lack social value of disseminating ideas to the public and that lay behind the rights granted by the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Post-Chaplinsky

The Supreme Court of the United States continued to uphold the categorical exceptions, however the Court also began to modify and narrow the grounds on which the speech was not constitutionally protected. In 1969, the Court decided Brandenburg v. Ohio, 395 U.S. 444 (1969) in which they extended free speech protection to racial epithets and threats. Beginning in 1972, the Court began to afford more protections to offensive and insulting language.

• Gooding v. Wilson, 405 U.S. 518 (1972): "White son of a bitch, I'll kill you."
• Rosenfeld v. New Jersey, 408 U.S. 901 (1972): "Mother fucking."
• Lewis v. City of New Orleans, 415 U.S.130 (1974): "god damn mother fucking police."

In 2011, the Supreme Court heard Snyder v. Phelps, 562 U.S. 443 (2011). Members of the West Baptist Boro Church picketed and portested a military funeral with picket signs which read offensive language. The Court held that even hurtful speech like "God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” "Fags Doom Nations," “You’re Going to Hell,” and “God Hates You" is to be considered public debate, particularly when conducted on public land, and must enjoy "special" First Amendment protection.

While the First Amendment protections have been somewhat modified and narrowed, these categorical exceptions have typically been upheld through the Supreme Court's history of First Amendment Jurisprudence. In United States v. Stevens, 559 U.S. 460 (2010), Justice Roberts reaffirmed the categorical exceptions. The following year, in Brown v. Entertainment Merchants Association, Justice Antonin Scalia restated and confirmed that there were certain categories of whose content did not qualify for First Amendment protections.

Pure Speech vs. Symbolic Speech

Symbolic Speech

Main article Symbolic Speech

Symbolic Speech is a legal term in the United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. In certain cases, actions or conduct considered to be "symbolic speech" warrant the same protection as pure speech under the Constitution.

Symbolic Speech Tests for Protection

Spence Test

In deciding what constitutes symbolic speech, the Supreme Court, in a per curiam decision of Spence v. Washington, developed a two-prong test (later deemed the "Spence test") to determine if symbolic speech qualified for First Amendment protections. Under the Spence test, the action must:

• have an intent to convey a particularized message was present, and
• in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed i

O'Brien Test

Once deemed symbolic speech, in order to be protected under the First Amendment, the supposed symbolic speech must meet the constitutional test for protection established in United States v. O'Brien. The O'Brien test is not meant to be absolute deciding factor in symbolic speech cases, but it provides another layer of constitutional protection in symbolic speech cases.

Under O'Brien, a regulation on expressive conduct is valid if it;

• is within the constitutional power of the government,

• furthers an important or substantial governmental interest,
• furthers a governmental interest that is unrelated to the suppression of free speech, and
• is an incidental restriction on speech that is no greater than necessary to further the government's interest.

While constitutional issues do arise surrounding pure speech, symbolic speech tends to be much more heavily litigated in the Supreme Court.