First Amendment
I. Theories of Free Speech
a. Freedom of speech is the freedom to speak freely without censorship or limitation.
b. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, such as on “hate speech”. This is because exercising freedom of speech always takes place within a context of competing values.
c. Congress shall make no … abridging the freedom of speech
d. The English Background
i. Blackstone – The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.
e. Rise of the 1st Amend.
i. Adopted as a restraint on Congress
ii. Sedition Act of 1789
1. Controversial as to violating FA
II. Seditious Advocacy and True Threats
a. Espionage Act of 1917 – Criminalized during wartime willfully making or conveying false reports with the intent to interfere with the prosecution of war or to promote success of enemies.
b. Learned Hand Test
i. Masses Publishing v. Patten
1. Pub sought to enjoin postmaster from refusing to mail anti war magazine encouraging draft resisiting. Act penalized encouragement of resistance and obstruction of military recruitment.
2. Test, words can be punished if they “counsel or advise others to violate the law as it stands” but not words critical of the law.
a. Pub was abstract advocacy outside the reach of the law
b. Under test the effect of speech is irrelevant
c. Test rejected for clear and present danger
c. Clear and Present Danger Test
i. Holmes in Schenck
ii. Speech Punishable if creates a clear and present danger that an illegal act would come about.
iii. Shenck
1. Issue was wether “words used in such a circumstance [encouraging others to dodge] and are of such nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”
2. In war, things that can be said during peace are riskier to assert.
3. Crying fire in a crowded theater
iv. Criticism
1. Not protective, relies on fact finder opinion about immediacy of threat, increases effectiveness of speaker
d. Application of CPD
i. Abrams
1. Ds published paper attacking US production of war items. Convicted under E act
2. Conviction upheld. Statements will help German Cause
3. Homles Dissent – Marketplace of ideas. No intent, actor does not intend consequences
ii. Gitlow
1. Criminal anarchy statute banned advocating violence against govt. D published calls for mass action. Conviction upheld. Leg judgment that speech causes harm and judiciary should defer to that judgment. Clear and Present Danger test rejected is speech is already proscribed.
2. Holmes, dissent. CPD test should not be applied to c
utlawed more narrowly
b. Nebraska Press
i. Court refused to allow gag order on NE paper to stand, because (1) prior restraints are disfavored and (2) less restrictive alternate means exist to prevent leak of information about multiple murders in NE.
c. Landmark
i. Court refused to punish the press that leaked information about the state ethics board’s review of “crooked” judges, because (1) it’s a matter of public concern and (2) it’s important for people to know whether elected or appointed judges are corrupt.
d. Progressive
i. Press allowed to publish instructions on how to make an H-bomb on technicalities.
V. What is Speech
a. O’Brien
i. SCOTUS refused to consider burning of a draft card as “symbolic speech,” when federal statute prevents knowingly destroying the card
1. SPEECH: (1) message, (2) audience, and (3) “intent” of the speaker to communicate
2. Intermediate scrutiny test:
a. Power to regulate (power to raise armies)
b. Substantial Govt Interest (draft)
c. Unrelated to suppression of speech (not ban protest, only card burning)
d. Burden not greater than necessary to fulfil the government interest.
