The Right to Freedom of Expression: A Study on Protected Speech

Summary: The case of Texas v. Johnson involves a political protest where respondent Johnson burnt the American flag as an expression against the Reagan Administration's policies. The trial court convicted Johnson, but the court of criminal appeals reversed the decision, citing that burning the flag was a protected symbolic speech under the First Amendment. The Supreme Court affirmed the lower court's decision, holding that Johnson's act did not threaten to disturb the peace and was therefore protected expression.

Case Summary: Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed.
2d 41, 1988 U.S.
Procedural Posture
The Appellate magazine in this case has appealed against the judgment of the United
States Court of Appeals for the Fourth Circuit, in awarding damages of $150,000 in
favour of the respondent, a fundamentalist minister; albeit, a public figure for invasion of
privacy and infliction of emotional distress caused due to libel arising from a parody of
an advertisement.
Overview
Falwell, the Respondent, brought an action against Hustler magazine and its publisher,
Larry Flynt in the Federal district court for invasion of privacy, libel, and intentional
infliction of emotional distress caused due to the slanderous publication an ad parody
for Campari Ad Campaign. The jury verdict was in favour of Falwell thereby awarding
monetary damages for intentional infliction of emotional distress. The court of appeals
affirmed the award of the lower court. The Petitioner magazine appealed to the U.S.
Supreme Court by a Certiorari claiming that the damages were inconsistent with the
First Amendment. On review, the Court observed that that respondent,
 as a public figure, was required to show that the statements published in the
advertisement parody were made with actual malice or reckless disregard of the
truth
 that such an act was required to confirm to the standards of “actual malice”
prescribed in the New York Case. (Shaman, 2001)
 The award of damages by the lower court was inconsistent with the Court’s
refusal to allow damages just because a particular form of speech may have had
an adverse emotional impact on the audience. Wherefore, judgment of the
Fourth Circuit was reversed.

Outcome
The judgment was reversed and was held that the parody did not make false
statements that were implied to be true.
Case Summary: Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974)
Procedural Posture
The Appellate in this case appealed to the Supreme Court against the decision of the
US Court of Appeals for the Seventh Circuit, which entered the jury’s verdict that the
Appellate was a public figure and that the New York Times standard of actual malice
applied in his case. Accordingly, the court of appeals affirmed the district court's grant of
a judgment notwithstanding the verdict in favor of respondent publisher.
Overview
A young man was killed by a Chicago Police officer. The Petitioner, Gertz, an attorney
was retained by the family of the youth to represent them in the civil action. During this
period, respondent published an article about petitioner an active member of various
communist organizations besides having a number of criminal records. The Petitioner
therefore, filed a case that for carrying such libelous article. The Federal court held that
the New York Times standard applied, which meant that respondent escaped liability
unless petitioner proved that a defamatory falsehood was published with actual malice.
The district court entered judgment for respondent and the court of appeals affirmed.
The Supreme Court reversed and remanded, holding that
 the petitioner was not a public figure and had not done anything to achieve public
fame
 the respective states are free to establish standards of defamation for private
individuals as compensating injury to the reputation of a private individual
required a different rule.

 Appellate was a private figure and that the state had varied parameters to
compensate for the defamation caused to a private individual
In such a case where the state standard is lower than actual malice as applicable to
public figures, only actual damages may be awarded. Therefore, Gertz had to prove
only negligence and not actual malice. (Gertz, 1992) The states could not permit
recovery of presumed or punitive damages absent a showing of knowledge of falsity
or reckless disregard for the truth.
Outcome
The Court reversed the court of appeals' decision and held that the facts showed
Appellate was a private figure and that the state had varied parameters to compensate
for the defamation caused to a private individual. Furthermore, actual damage in case of
private persons need not be proved as negligence is present. The case was remanded
for a new trial.
First Amendment protection-for private individuals
Case Summary: Texas v. Johnson, 491 U.S. 397 (1989)
Procedural Posture
The Appellate State of Texas sought an appeal against the order of the Court of
Criminal Appeals of Texas through the Writ of Certiorari, which reversed the trial court's
decision that had convicted respondent of desecrating a flag in violation of Texas Law
(US Law)
Overview
Respondent participated in a political demonstration where he burnt the American flag
as a means of political protest against the Reagan Administration policies. He was tried
and sentenced to one year jail and assessed $2,000 fine. The court of criminal appeals
reversed the conviction and held that Johnson could not be punished as it was a
“symbolic speech” protected by the First Amendment. The matter came up before the

Supreme Court to determine whether the conviction was consistent with U.S. Const. I
Amendment. The Supreme Court held that
 Appellant’s interest in preventing breaches of the peace did not support
respondent's conviction because his conduct did not threaten to disturb the
peace.
 the respondent’s act of burning the flag was a protected expression under the
First Amendment.
 the State cannot designate specific symbols to communicate only limited sets of
messages nor
 can the Government prohibit the expression of an idea for the only reason that
the society finds the idea offensive and disagreeable
Outcome
The Supreme Court affirmed the court of criminal appeals' as it did not amount to
threatening to disturb peace, nor did it justify a criminal conviction for engaging political
expression.
References
Gertz, E. (1992). The Story of the Landmark Libel Case. Southern Illinois University Press.
Shaman, J. M. (2001). Constitutional Interpretation: Illusion and Reality. Westport: Greenwood
Publishing Group.
US Law, provision Penal Code Ann. § 42.09(a)(3) (1989)..
Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974)
Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41, 1988 U.S.
Texas v. Johnson, 491 U.S. 397 (1989)
US Constitution, Amendment 1

Legal Memorandum
To: Fred Greene
From: JD Thomas Associates
Re: Outcome in the case of Snyder v Phelps 533 F. Supp.2d 567, 2008 U.S. Dist
The purpose of this memorandum is to explain the legal office’s interpretation and
outcome of the case in the above mentioned case. The reason of the memo is to bring it
to your notice about the possible outcome that we may expect in the ensuing case.
Issue:
Whether the First Amendment protection can be granted to the protestors at a funeral
and claim liability for intentionally inflicting emotional distress to the family of the
distressed?
Brief Answer
The Speech given by the members of the church is a protected one under First
Amendment (US Constitution) for the reason that it addresses broad issues to the public
at large.
Statement of Facts
The family of the deceased Marine Lance Cpl. Mathew Snyder filed a lawsuit against
the Respondents, who are the members of the church for picketing libelous placards
bearing anti-homosexual messages at the funeral of their son. Besides, there was a
poem on the church’s website stating that Snyder taught his son “to defy the creator” a
“liar” and such other messages. Snyder sued Phelpses for intentional infliction of
emotional distress, invasion of privacy and conflict, and sought compensatory damages.
The district court granted summary judgment and relief to Snyder against which Phelps
preferred an appeal to the Fourth Circuit.

Rule:
The First Amendment is especially protective of speech made at public places
concerning matters of public concern. The matter does not attract the provisions of the
Anti-defamation League (ADL, 2016)either as the facts do not apply to public speeches
or does not interfere with the right to assembly, religion and speech.
Analysis
The Freedom of Speech ensures “freedom of expression upon questions”, that is well
protected by the First Amendment. The placards depicting messages such as "America
is Doomed," "Fag Troops," and "Thank God for Dead Soldiers," though were utterly
distasteful, involved matters of public concern. The Respondents speech is therefore
constitutionally protected regardless of whether the individuals involved are private or
public. Similarly, the postings made in the church’s website about the family of the
appellants, though aimed at Catholics was also protected as it was patterned on the
lines of the figurative expression of speech.
Outcome: The court reversed the district court's judgment and held that the
speech and action by the respondents are well protected under the First
Amendment.
Bibliography
Snyder v Phelps 533 F. Supp.2d 567, 2008 U.S. Dist
ADL. (2016). Westbro Baptist Church. Anti-Defamation LEague.
Personal Evaluation
The method of legal research that I had adopted in completing this assignment were:
Case Law research and analysis
Comprehending the facts of the case

Analysis of the decision in the case
Online sources-by going to sources such as google books, case briefsummary.com,
Cornell University website.
Browsing and reading of information on Wikipedia
During the process of writing the case summary, I made a systematic note of the legal
methodology used in the writing of case briefs. The learning process here involved
summarizing, making notes and comprehending case laws. Since, all the chosen cases
relate to the First Amendment, I read the part of the legislation relating to defamation,
free speech and protected speeches. While I was reading, I tried to make connections
with the case, and the applicability of the legislation. Several complications came by my
way, as the final decision of the court is the result of various appeals and trial court
orders. Hence, it proved to be a cumbersome ordeal to study every nitty gritty of the
case and the decision of the hierarchy of courts.
Memorandum
Summarizing the memo included understanding various issues, facts and the analysis
given by the court. Here, I had to stick to brevity as the final product had to be clear and
concise. Hence, referring to the Wikipedia helped in understanding the case and the
various aspects of protection under first amendment. I tried to distinguish between the
facts, analysis and the opinion of the court given in this particular case and went over
the parts that I found were confusing especially the judgment of the court in the case.
Besides, since the matter also relates to the First Amendment ( the study that I had
already made), I tried to predict in my mind of what the elements of the decision would
be.
Preparing a PPT and the excel file meant that I had to stick to brevity and the facts and
prepare a concise and a brief report of what I had just studied, all in a chronological
order. In doing so, I went through the case law, mentally arranged the events and jotted
down. I cross-checked the points that I had just made; with what I had just learnt; which

helped me gain confidence of what I was writing. This At the end, I also evaluated what
I had read and supported my text with the judgments and references that I had made.