Module 1
Free Speech Values; What Is Speech?
Why protect speech at all — truth, self-governance, autonomy — and where speech ends and conduct begins. O'Brien gives the test for regulating the conduct half; Spence asks when conduct is speech; Johnson shows the two colliding over a burning flag.
Reading list
- T2 United States v. O'Brien 391 U.S. 367 (1968)
Draft-card burning meets the Warren Court, and the module gets its foundational split: expressive intent alone cannot convert conduct into 'speech,' and when speech and nonspeech elements combine in one course of conduct, the government may regulate the nonspeech half under a four-part test whose third prong — an interest 'unrelated to the suppression of free expression' — does nearly all the work. Read it as the origin of intermediate scrutiny for expressive conduct, and as the Court's flat refusal to police legislative motive even when Congress's target was obvious.
- T2 Spence v. Washington 418 U.S. 405 (1974)
A college student tapes a peace symbol to his own flag, hangs it upside down out his apartment window, and is convicted of 'improper use' of the flag. This short per curiam supplies the module's threshold test for when conduct becomes speech at all: an intent to convey a particularized message, plus a great likelihood, in the surrounding circumstances, that viewers will understand it. Read it as the gate you must pass through before O'Brien's four steps even matter — and notice footnote 8, which tells you when you never reach them.
- T1 Texas v. Johnson 491 U.S. 397 (1989)
O'Brien and Spence collide over a burning flag, and the module's framework snaps into place: first ask whether the conduct is expressive, then ask whether the State's interest is related to the suppression of expression — because that second question decides everything. Both of Texas's asserted interests fail before O'Brien's lenient test can even apply, and the flag-preservation interest draws 'the most exacting scrutiny' instead. Read Part IV for the bedrock principle: that society finds an idea offensive is never, by itself, a reason the government may suppress it.
Notes on further cases
Why protect speech at all?
Before any doctrine, an inventory of reasons — because which reason you privilege decides cases. The marketplace of ideas (Holmes, dissenting in Abrams, 1919): truth is what survives competition among ideas, so the remedy for bad speech is more speech, and government intervention corrupts the test. Its weakness: markets fail, and the metaphor assumes buyers who want truth. Democratic self-governance (Meiklejohn): the First Amendment protects the political conversation sovereign citizens need; what matters is not that everyone shall speak, but that everything worth saying shall be said. Its weakness: it grades speech by political utility and struggles with art, science, and profanity. Autonomy and self-realization: speaking and hearing are constitutive of personhood, protected for the speaker’s own sake regardless of social payoff. Its weakness: it proves too much — most regulable conduct is also self-expressive. Checking value (Blasi): free expression as structural insurance against official abuse. Tolerance and self-restraint (Bollinger): protecting extremist speech trains a society in the discipline democracy requires. No case adopts one theory cleanly; most opinions cocktail them. As you read this module, tag each holding with the theory doing the real work — and notice how often the rhetoric of the marketplace decorates a result the autonomy theory actually explains.
Before class
- Come with your own ranked answer to the 'why protect speech' question — you will be asked.
- Apply the Spence test to something you saw this week.
- Know exactly which prong of O'Brien did the work in Johnson.