First Amendment
Thomas Healy
Spring 2012
Justifications for First Amendment
1. Free marketplace of ideas- the idea is that we hope free speech will promote and lead to the search for truth. This is what Justice Holmes is emphasizing in Abrams dissent- the “search for truth.” Pg. 22. What we want in the end is the truth. The marketplace of ideas may be flawed, but to allow the government to decide what is true and right and to suppress all else is much worse. We want to have a laissez-faire system in which everyone is permitted to say what they have to say and then through the competition of the marketplace, the truth will somehow come out. This is invoking Adam Smith’s idea of the invisible hand. Argument against this: just as in the market for products, there is not always truth in the marketplace of ideas. Also, the truth might come out in the longrun, but that might take a very long time, leaving us with bad ideas out there. The marketplace of ideas is subject to similar criticisms as the marketplace of products. People are vulnerable to different lies that are spread. Some ideas might drown out others. It is wrong to assume truth will trump falsehood.
2. Autonomy- government shouldn’t be able to tell me what I can and can’t say. Self-expression. Why do we treat speech differently from other things that involve autonomy? To engage in free speech is to engage in self-definition and expression. Emphasize the intrinsic worth of speech. Criticism: this undermines the autonomy and self-fulfillment of others.
3. Checking function. Permitting people to say what they want to say serves as a check on the government. If we can criticize the government, that will check any potential abuse of power from the government and will avoid abuse and tyranny.
4. Freedom of speech is like a safety valve- releasing built up pressure in society. If we force people underground, who knows what they will do. If they are allowed to express themselves, it might not get to such a dangerous point.
5. Democracy: This is supposed to be a system of self-government. We need to be able to talk about government policies, whether laws are good or bad, etc. Free speech is essential to the project of self-government. Public officials are accountable through criticism. Public issues should be decided by universal suffrage. This checks the abuse of power by government officials. Voters retain a veto power.
6. Negative justification- distrust of government. Government cannot be trusted to regulate speech.
7. Eclectic Theories: some theorists believe that adequate protection of free speech relies on several of these theories jointly
Speech that still receives no protection:
1. Bribery
2. Perjury
3. Antitrust conspiracies
4. Solicitation for murder
Debated areas of protection:
1. Incitement
2. Fighting words
3. Libel
4. Obscenity
5. Child pornography
History
This is where the Supreme Court began looking at the First Amendment (1919). Reasons the Supreme Court had not really gotten involved: prior to 1919 it was clear that the First Amendment didn’t apply to the states (Baren v. Baltimore- the Bill of Rights didn’t apply to the states—14th Amendment was in 1925). For a long stretch of time, the Bill of Rights only applied in the federal context. Also, the federal government was much smaller at this point in time so not many opportunities to challenge what the federal government was doing. During WWI, the government did get heavily involved and that’s why we get the cases we start with today.
Categorization v Balancing
Even if it is conceded that the 1st amendment is not absolute, should any reduced protection for speech be analyzed in terms of categorization or balancing?
Categorization strives for bright line rules. Attractive because of clarity and provides guidance to judges and other government officials. It is defended as a welcome recognition of the diversity of types of speech and an alternative to the excessive flexibility of balancing. Problematic because it may case an entire class of speech outside of the 1st amendment protections without adequate examination of the bases for the conclusion
Balancing approach permits judicial evaluations only on the state interest side of the valance, and would not shortcut the balancing process by encouraging judicial evaluations of the relative merit of the speech on the other side of the balance
Note: When regulations are subject to strict scrutiny- which requires both a showing of compelling state ends and the unavailability of less restrictive means- the government virtually always loses and the speaker always wins. Strict scrutiny thus functions more like categorization than balancing
Incitement to Violence
Bad Tendency Test: Prior to Schenck, courts were using the bad tendency test. The government could punish any speech that had any tendency to cause harm, no matter how remote that harm was. Clear and present danger protects more speech and is an improvement. Schenck replaces the bad tendency test with the clear and present danger test.
Schenck v. United States
A. Facts: 1917 Espionage Act. Schenck was making leaflets. Schenck was convicted and Holmes announced his clear and present danger test. The Espionage Act of 1917 prohibited: (1) Willfully making or conveying false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or promoting the success of its enemies (making of false statements/false reports); (2) Willfully causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States (causing insubordination in military); (3) Obstructing the recruiting process. It is a crime to conspire to do any of these things or to use the mail to do them. They were charged with conspiracy to cause insubordination and conspiracy to obstruct the recruiting process (second and third). Schenck was the executive secretary of the Socialist party and Bare was a member of the executive committee. They had published and circulated (mailed) a leaflet to several thousand men that had been called for the draft. What are they saying? Essentially, they are saying that to draft people in the war is like slavery and the Selective Service Act was unconstitutional. They were encouraging people to contact their representatives and try to get the act repealed. They are telling people to assert their right to register as conscientious objectors (a provision in the Service act allowed those objectors to not observe—certain religious groups could do this). They were telling people that if you don’t believe in the war, you should claim that you are an objector and are exempted from fighting because of that belief.
B. Issue: were they encouraging people to break the law? Did they have a right to restrict the speech? Holding: Shenck was given 6 months in prison and Bare was given 90 days. Defendants’ claims: this is speech that is protected under the First Amendment.
C. Holmes’ metaphor: falsely shouting fire in a crowded theater. He is trying to say that “no law abridging the freedom of speech” is not literal. It really means something more like “Congress shall make not too many laws abridging the freedom of speech.” He gives this theater metaphor to justify that. We cannot read the First Amendment literally to mean what it seems to say; it cannot be an absolute protection for freedom of speech. Is the freedom of speech absolute? We might think of “the freedom of speech” as a thing. That article “the” seems to indicate that freedom of speech is pre-existing and already has content. Congress can’t abridge anything that falls within that. But things that fall outside of that pre-existing concept are not protected. So how do we know what the Framers meant by “the freedom of speech”? We could look at the background legal norms at the time the First Amendment was written- what did educated people think should be protected? We could also look at some of their intent. If we acknowledge that the freedom isn’t absolute, what are the limits? Holmes gives us a start by giving us a metaphor of falsely shouting fire in a crowded theater. Intent? This could work but we might think the speech is valuable regardless of intent. One thing we have identified from the metaphor is that there is a harm that will result.
D. Background norms/legal norms at the time:
1. The First Amendment was drafted against the backdrop of a long struggle in England with licensing/censorship. You have an official who is the censor and anyone who wants to publish anything has to submit it to the censor ahead of time and get it approved before it can be published. This was used in England and many people objected to it and though it violated the concept of freedom of speech. John Milton: “let truth and falsehood grapple.” The opponents of licensing won. At a minimum it seems clear that the Framers thought the First Amendment was doing away with a system of licensing where you have to ahead of time submit things to a censor. We can say that this was not permitted under the First Amendment.
2. Long history in England of punishing people for seditious libel- bringing the government into disrepute/criticizing the government. This is subsequent punishment rather than a prior restraint. Under this view of publishing after you publish, the crime of seditious libel was perfectly acceptable. In the colonies, far less people were punished for seditious libel. Some people argue that by the time the FA was ratified, seditious libel as a doctrine had been repudiated in the U.S. and the Framers must have meant to do away with this crime.
E. Things to look at/to take into account:
1. Intent
2. Gravity of evil/harm
3. Proximity and degree: proximity between the speech and the harm. If it is going to happen right away, there is very little chance to protect against it. We could counter the speech that might create the harm with other speech that might mitigate the harm. If the harm is going to happen right away, there is no time for counter speech. Proximity is relevant because it means there are alternatives to suppressing speech. Given that we thinks speech is valuable, maybe we should rely on those alternatives instead of shutting down the speech. Immediacy becomes a very important factor in deciding what speech is protected and what speech is not protected.
F. Holmes’ standard: the standard that he articulates is: “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.” Clear: more than just a tendency. Present: not far in the future or remote, but instead immediate. Exactly how immediate is another question. How do we decide if it is a clear and present danger? Looking at the nature of what has been said and what circumstances the words were spoken in. That is how we figure out if speech poses a clear and present danger. Holding: Holmes upholds the conviction but doesn’t give us any analysis of the facts of this case under the clear and present danger test. This is how you would analyze speech under the clear and present danger test, but Holmes doesn’t actually do this. Was Holmes really articulating a new standard here or was clear and present danger another way of saying bad tendency?
G. Nature of the words and circumstances in which they were spoken- Pro clear and present danger:
1. Mailed to draftees. If they had simply sent them to a retirement home, that would pose less of a danger. They sent them to people that would be the most interested.
2. Time of war
3. Speakers are prominent- people are more likely to listen to them and act on what they say than on what some unknown person would say.
4. Strong language
H. Con clear and present danger:
1. It is questionable whether they are actually urging people to resist the draft or not. They do say you should register as an objector if you are against the war, but they don’t say to resist the draft entirely. It is questionable whether they are encouraging draft resistance.
2. They are not too prominent
3. Immediacy- still seems to be time for counter speech. The whole country was having this debate.
I. Note: Does the effect of the speech matter? No. It doesn’t matter if an actual obstruction happens or not. He cares about what could have happened. Also, are these people important? They aren’t presidential candidates (like the Debs case) but they are officials of the Socialist Party of Philadelphia so they might have a little more influence than the average person. Clear and present danger test is a fact intensive inquiry. This is one of its criticisms.
J. Schenck articulates a different standard than the bad tendency standard. Instead, speech can be restricted only when it poses a clear and present danger of some evil that the legislature wants to prevent. Differences from bad tendency: (1) Requires greater degree of certainty; and (2) The danger must also be imminent- proximity. Holmes says that to determine a clear and present danger, we look at the nature of the words and the circumstances in which they were spoken. This test didn’t always lead to the protection of speech. In Schenck, Frohwek, and Debs, he didn’t really protect free speech.
Frohwerk and Debs (two cases immediately af
do that, the less clear the test becomes and the more easily manipulated it becomes. Applying the Hands test in the Masses case: for the cartoons and poem, they didn’t violate the act. He draws a distinction between holding them up to esteem and holding them up to emulation. You can say people deserve our respect and honor without saying other people should do what they are doing. Applying the Holmes test here: would be hard that it poses a clear and present danger (looking at his Adams dissent). In Schenck, it might have been a danger because it is similar to the leaflet in that case.
D. Compare Holmes and Hand’s approaches: Another key difference between Holmes and Hands tests: Under Hand’s test, something that has no chance of succeeding will be punished (like if someone is yelling about overthrowing the government but no one is listening). Under Holmes’ test, they would be protected because there is no threat posed.
a. Holmes takes into account the effect of the speech, while Hand test does not
b. Holmes test is much less clear than the Hand test- Holmes test might not present much of a bright line rule. Because it isn’t that clear, it might give judges and juries too much leeway to manipulate. Hands’ test purports to get rid of some of those problems. He would simply ask what words the speaker used. This also presents a problem because unless we rely only on the literal words, then we are going to have to look at circumstances and intent. That makes Hands’ test somewhat subjective
c. Hand’s test can be underinclusive (might not capture dangerous speaker who uses words to work around using direct speech) and overinclusive (punishes the silly pamphleteer even if they pose no real danger)
E. Applying Hands’ test to Abrams, Schenck, Frohwerk, and Debs: in Abrams, it probably would be encouraging people. They do directly encourage their audience to violate the law, so under Hand’s test, the leaflets in Abrams would not be upheld. It does make a difference which test you uphold.
F. Test we have today: Which test protects more speech and is consistent with the underlying values of the First Amendment? Hands’ test may be clearer, but unfortunately for Hand that isn’t the test that is adopted. His decision in Masses is overturned in Second Circuit. Holmes’ clear and present danger test is the one that we continue to work with.
Gitlow v. New York
Red Scare Cases (Gitlow, Whitney, Dennis): in the 1920s and 1930s, the court decided a series of cases involving criminal syndicalism laws- statutes that made it a crime to advocate the overthrow of the U.S. government or industrial organization by force or violent. The court decided these cases without using the clear and present danger test. Rather, it upheld laws so long as the prosecution was reasonable.
A. The defendants are being prosecuted under state law (unlike the federal laws we have looked at) and that is important because we are looking at whether the Bill of Rights even applies. This law was passed by the state of New York- does the First Amendment apply? The court assumes that the First Amendment does apply, incorporated through the Fourteenth Amendment due process clause. From here on out, the court takes it as a matter of faith that the protections of the Bill of Rights go to the states through the 14th Amendment. It is an important step, but the court takes it without much discussion and moves on. The law at issue here is a criminal anarchy law. The defendants are members of this left-wing Socialist Party that publish the Left Wing Manifesto. It is a general philosophy that capitalism needs to be overthrown through industrial revolts, etc. Is it likely that this will happen soon? Socialist party didn’t favor violence. This is an incredibly small percentage of the population that prescribes to this viewpoint, so there isn’t much chance that this will happen soon or even that they are wanting it to happen soon.
B. Holding: Why aren’t they following clear and present danger here? They are deferring to the legislature here. Why? Difference in the two statutes: the state may have more leeway to suppress speech than the federal government because the First Amendment doesn’t speak directly to the states.
C. Difference between this case and the Espionage Act cases: The Espionage Act prohibits results, not formation of words. It makes it a crime to cause insubordination or do something that obstructs recruiting. The court is saying that when the government prohibits a particular result and people are prosecuted under that law for words they used that might lead to that result, the courts need to apply clear and present danger test to make sure that individuals are being punished for speech that is truly danger and will lead to those results. The statute in Gitlow does not prohibit results, but instead prohibits specific expressions of opinions. They are prohibiting particular words. You can’t say “I encourage you to overthrow the government.” When the legislature is prohibiting specific words, the legislature has already made the determination that those words are sufficiently dangerous that they are not protected by the First Amendment. To the extent that this is all a balancing between the value of speech and the harms that speech can cause, when the legislature has done that balancing by proscribing particular words, the court should not second guess the conclusion the legislature has reached.
