41/23/07
Common law restrictions:
– Licensing – license to print something. Licensing might not come in the same form today. Essence of the first amendment… state doesn’t determine orthodoxy of thought. Licensing today may come in the form of permits. FCC standards?
– Constructive treason – crime against the king
– Seditious libel – where discord or slander may grow between the king and his people. Common law said truth was not a defense.
What is the essential rationale of free speech?
– There shall be no state established orthodoxy.
– Marketplace of ideas- anything that comes out of my mouth is an idea.
– Self-governance – allows people to govern themselves and protects political speech for the purpose of checks and balances.
– Self-fulfillment – part of being human means being able to express one’s opinion.
The basis of free speech which is given to parliament in England is given to the sovereignty, the people in America.
Blackstone view: freedom of speech consists entirely in the freedom from prior restraints.
Sedition Act of 1798.
– Content-based restrictions restrict communication because of the message conveyed. Examples: laws prohibiting the publication of confidential information, forbidding the hiring of teachers who advocate the violent overthrow of government, or banning the display of the swastika in certain neighborhoods.
– Content-neutral restrictions restrict communication without regard to the message conveyed. Examples: Laws prohibiting noisy speeches near a hospital, banning the erection of billboards in residential communities, or requiring the disclosure of the names of all leafleteers.
– Content-based restrictions:
o Speech that may induce hearers or listeners to engage in unlawful conduct
o Speech that threatens harm to others
o Speech that provokes a hostile audience response
o Speech that discloses confidential information
Shaffer v. United States p.1062 – criminal case – violating the Espionage Act of 1917.
Willfully (Mens rea) / obstruct (actus reus) / recruiting.
Shaffer was convicted of violating the Espionage Act of 1917, for willfully obstructing the recruiting or enlistment service of the United States. What mens rea standard is the court using for this criminality? Standard for willfully mean?: Purposely/knowingly, Reckless, or negligence? The court says that the elements of that offense is a natural and reasonable tendency and intent. Is the offense, willfully speaking or willfully obstructing? Court seems t
ct the recruiting and enlistment service of the United States. Uses Shaffer language. Holmes says that look to see if there is a “natural tendency and reasonably probably effect to obstruct the recruiting service [and] unless the defendant had the specific intent to do so in his mind.”
Abrams v. United States – p.1070 – Charged defendants under provision prohibiting conspiracy to incite, provoke, or encourage resistance to the United States. Dissent- Holmes- defines clear and present danger. You have a danger, or tend to impose a danger. In Abrams, danger itself is the harm. Because of this nebulous standard, the courts try to limit the natural and probable test.
How do we know if a danger is clear and imminent?
– Greater possible harm (gravity)
– Likelihood of consequences
– Proximity (time, distance?)
– Utility
Seems similar to Hands formula for negligence analysis.
Holmes seems to encourage more of the marketplace of ideas.
Brandeis seems to focus on importance of speech for free government.
