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First Amendment
Elon University School of Law
Gaylord, Scott W.

First Amendment Speech and Religion Gaylord Fall 2015
        I.            First Amendment:
a.        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 redress of grievances.
     II.            THEORY
a.       Self-fulfillment:
                                                               i.      Freedom of expression is a right of the individual.
1.       As an individual, every person has the right to develop his or her own beliefs and opinions.
2.       Freedom of expression derives from the individual as a participant in society.
3.       Expression v. action.
                                                             ii.      Critique:
1.       Judge Bork—other things are equally important to self-realization but are not afforded such protection.
2.       Some ideas are bad and harmful to the individual (and possibly to society).
b.       Truth:
                                                               i.      Marketplace of ideas.
1.       Free flow of ideas = better society = truth
a.       Instrumental value
                                                             ii.      Instrumental value—society will arrive at the best judgment only by considering all facts and arguments on all sides of a given issue.
1.       Justice Holmes: “[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
2.       Why not ban bad or false ideas?
                                                           iii.      Possible problems with this theory?
1.       Will truth prevail?
2.       Are there some truths that should not be uttered?
3.       What about the possible harms of false speech?
c.       Participation in decision-making:
                                                               i.      Emerson: all people have a right to participate in the process of formulating common decisions.
                                                             ii.      Why is Judge Bork so concerned with political speech?
1.       “Freedom of expression in the political realm is usually a necessary condition for securing freedom elsewhere.”
2.       Criticism of government and government officials is crucial to the democratic process.
3.       Government may not be even-handed in censoring its critics.
                                                           iii.      Role in community
                                                           iv.      Active engagement in society
d.       Balance stability and change:
                                                               i.      Freedom of expression provides stability by allowing dissenters to vent without feeling the need to resort to violence.
                                                             ii.      Freedom of expression permits change by allowing for a robust exchange of ideas and participation in process.
                                                           iii.      Judge Bork:
1.       Most of these are issues for the legislature because they deal with what is expedient or prudent.
2.       Protection of political speech provides the only principled ground on which a judge can neutrally decide whether speech can be restricted.
3.       Constitutionality of limitations on speech v. wisdom of such limitations.
                                                           iv.      Voice criticism
   III.            Incitement
a.       Generally
                                                               i.      Exception from (broad) First Amendment protection.
1.       Government regulating speech of private citizens precisely because the message is harmful.
2.       When is speech that advocates or causes illegal actions constitutionally protected?
a.       Intention + likelihood
                                                             ii.      Why protect the advocacy of any illegality or violence?
1.       Reasons to protect.
a.       Chilling effect
b.       Schenck v. United States (1919)
                                                               i.      Prior to Schenck, there were virtually no Supreme Court cases dealing with the First Amendment.
1.       First Amendment was not incorporated until Gitlow.
2.       Generally thought that the First Amendment applied only to prior restraints.
                                                             ii.      Time of considerable unrest.
                                                           iii.      How does one balance society’s need for order against the desire to protect speech?
                                                           iv.      FACTS: Schenck, the Socialist Party’s general secretary, circulated 15,000 pamphlets arguing that the draft was unconstitutional involuntary servitude that violated the Thirteenth Amendment. Pamphlet said “Do not submit to intimidation” and that people should “assert your rights.”
1.       Justice Holmes—“The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater, and causing a panic.”
                                                             v.      RULE: Clear and present danger test: Where an act’s “tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.”
1.       Intention plus likelihood.
c.       Debs v. United States (1919)
                                                               i.      FACTS: Court upheld the conviction of famous socialist leader, Eugene Debs. Debs stated that he would like to say more about efforts of other socialists to encourage people to avoid the draft but could not under current laws. “… in a way that naturally might have been thought to be intended to include …”
                                                             ii.      RULE: Clear and present danger test: The “natural tendency” and “specific intent” of the speech were to obstruct the war and recruiting.
d.       Abrams v. United States (1919)
                                                               i.      FACTS: Abrams was involved in printing and distributing fliers regarding socialism and America’s involvement in Russia. Abrams was charged with violating the Espionage Act, which precluded one “to urge, incite and advocate curtailment of production of things … necessary and essential to the prosecution of the war.”
                                                             ii.      What is the disagreement between the majority and dissent?
1.       Holmes—airplane manufacturing example. Majority—“Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.”
2.       RULE: Knowledge plus likelihood.
e.       Brandenburg v. Ohio (1969)
                                                               i.      General rule: Incitement to violence or to violate the law is unprotected where it is:
1.       “directed to inciting or producing”
2.       “imminent lawless action” and
3.       “is likely to incite or produce such action.”
                                                             ii.      Intent + Imminence + Likelihood
                                                           iii.      How did Court apply this test to the facts?
1.       “‘[T]he mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’”
f.        Problem: Abortionists are Murderers
                                                               i.      (1) Overbreadth – statute is not directly inciting … “counsel”
                                                             ii.      (2) Intent?

ittee to defend Martin Luther King took out an ad in the New York Times to discuss mistreatment by police in Montgomery, Alabama. Sullivan, Montgomery city commissioner, alleged that statements were “of and concerning” him. Trial court found for Sullivan and awarded $500K in damages.
1.       State standards at time were favorable to plaintiff: (1) Plaintiff did not have to show harm. (2) Strict liability standard. (3) Defendant had burden of proving affirmative defense of truth. (4) No limitation on presumed and punitive damages.
f.         Gertz v. Welch
                                                               i.      FACTS:
1.        Chicago police officer shot and killed a young man, was convicted of second degree murder, and then was sued by the family, who retained Gertz as their attorney. The company published an article stating that the conviction of the officer was part of a Communist campaign against the police and making various allegations about Gertz
                                                             ii.      Why treat public figures differently than private figures?
1.       Public fiures have a greater opportunity for rebuttal
2.       Public figures are more likely to have assumed the risk of negligent defamatory falsehoods
3.       Public figure status may be something of a proxy for whether statements about the person are really likely to be of public concern
                                                           iii.      Why does the Court prohibit strict liability, even in private figure cases
1.       Reasonable mistakes do not deserve the imposition of liability, and
2.       Liability for reasonable mistakes would create too much of a chilling effect
                                                           iv.      SEE CHART
g.       Dun & Bradstreet v. Greenmoss Builders
                                                               i.      FACTS
1.       Dun & Bradstreet, a credit reporting agency, sent a report to five subscribers indicating that Greenmoss Builders, a construction contractor, had filed for bankruptcy. “The report was false and grossly misinterpreted respondent’s assets and liabilities.” Greenmoss Builders sued and was awarded $50K in compensatory/presumed dmgs
                                                             ii.      Line between public concern and private concern
1.       Must look at the content, form and context
a.       Credit report was “speech solely in the individual interest of the speaker and its specific business audience” so there is no “strong interest in the free flow of commercial information”
b.       Speech is “hardy and unlikely to be deterred”
c.       Speech is “more objectively verifiable”
                                                           iii.      Matter of public concern
1.       Accusation of crime
2.       Discussion of sexual conduct
3.       Accusation of immoral conduct bearing on government employee’s fitness
4.       Manner of publication
a.       D&B held that the speech was not a public concern where (i) solely in the individual interest of the speaker and its specific business audience” and (ii) made available to only five subscribers
b.       Hardy and unlikely to be deterred
c.       More objectively verifiable