First Amendment Outline
Professor Healy
Fall 2008
Overview on First Amendment:
· Textual Basis:
o “Congress shall make no law…abridging the freedom of speech, or of the press.”
o Despite the language of the first amendment…freedom of speech is NOT absolute.
· Types of Speech
o Actual Speech
§ Spoken words and printed matter.
§ Requires no further inquiry to determine if the 1st Amendment applies.
o Symbolic Speech
§ Conduct that conveys message (Wearing black armband to protest Vietnam War).
§ To receive 1st Amendment protection, conduct must be “symbolic.” (discuss supra)
· Philosophy Behind Free Expression
o (1) Search for the Truth – Marketplace of Ideas
o (2) Self-Governance Rationale
§ Participation in government and democracy.
o (3) Individual Self-Fulfillment
§ The significance of free expression rests on the central human capacity to create and express symbolic systems such as speech, writing, pictures and music.
o (4) Tolerant Society
§ Helps to shape the intellectual character of society.
o (5) Safety Valve
§ By allowing speech to be spoken it reduces chance of revolt b/c persons able to “blow off steam.”
o (6) Check on Abuse of Power
§ Could bring to attention the abuse of power by public officials.
§ Power of public opinion.
· Speech Value
o High Value
§ Speech that is supported by a core value (i.e. Political Speech)
· This speech gets the greatest protection from the Court.
· Laws that prohibit high value speech get scrutinized by the Court.
· Government interest need not be as great.
o Low Value [Chaplinsky]
§ Speech that is closely connected to a core value.
· False statements of fact
· Invading someone’s privacy for no good reason (Ex: identity of rape victim)
· Commercial advertising
· Obscenity
· Lewd, profane, indecent
· Pornography
· Hate speech
§ Easier for Govt interest to outweigh speech– not have to be as great as with high value speech.
· Types of Restrictions on Speech
o Content Based– Usually SS Review
§ Govt has restricted communication b/c of message conveyed.
§ Deals with communicative impact.
o Content Neutral – Review is less demanding/Lower level
§ Govt restricts communication w/o regard to message conveyed.
§ Concerned only with time, place and manner.
· Two Ways Courts Deal with Free Speech Issues
o Balancing Approach
§ Balancing of core values v. government interest.
§ This occurs UNLESS a categorical exclusion applies.
o Categorical Exclusion (from Chaplinsky)
§ Not Protected Areas of Speech
· Lewd
· Obscene
· Profane
· Libelous
· Insulting or Fighting Words
§ These categories are automatically unprotected.
· Hence, the government interest is irrelevant.
Core Values (1st Amend Values)
Government Interest
Search for Truth
Self-Governance
Individual Self-Fulfillment
Balance These
Safety Valve
Tolerant Society
Value of Speech
Content Based or Neutral
Prior Restraint, Right to Know
Peace
Safety
General Welfare
National Security
· Why do we protect speech in America?
o SEE J. Brandeis’ concurring opinion in Whitney.
§ (1) Freedom to develop our faculties.
§ (2) Liberty is the secret of happiness and courage the secret to liberty.
§ (3) The freedom to think as you will and speak as you think are indispensable to the discovery and spread of political truth.
§ (4) Without free speech and assembly discussion would be futile.
§ (5) Public discussion is a political duty.
§ (6) Fear of serious injury cannot alone justify suppression of free speech and assembly. (men feared witches and burned women)
§ (7) It is the function of speech to free men from the bondage of irrational fears.
§ (8) Only an emergency can justify repression.
Chapter 1: Freedom of Speech: Why Government Restricts Speech – Unprotected & Less Protected Expression:
· Incitement to Violence:
o Schenck v. United States:
§ Facts: D charged under Espionage Act for sending mail to those who were drafted to discourage them from joining the military
§ Rule: [Clear & Present Danger Test – Holmes’ Test]
· Whether the words used are used in such circumstances and are of such a nature as to create a clear & present danger that they will bring about the substantive evils that Congress has a right to prevent.
o Clear = reasonably certain (not some hypothetical)
o Present = immediacy (immediate future) à Shouting “fire”
§ No time for counterspeech
· Look to:
o (1) Proximity &
o (2) Degree
· Depends on the circumstances in which it was done
§ Note: Court takes into effect the “time of war” & heightened restrictions on speech
· “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by an constitutional right”
o Frohwerk v. United States:
§ Conspiracy Note:
· “We have decided in Schenck that a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion”
o Debs v. United States:
§ Facts: Debs made a speech at Ohio Socialist Party; General theme was to advance Socialist Party
§ Standard: [D is guilty for advocacy of any of his opinions if]
· (1) The words had as their “natural tendency and reasonably probable effect to obstruct” the recruiting process AND
· (2) The Defendant had the specific intent to do so in mind.
o “But if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech.”
o Abrams v. United States:
§ Facts: Russian nationalists writing to workers in ammunitions factories to stop working (encouraging workers to strike); Handed out leaflets (dropped from rooftop); Charged with Amendment to Espionage Act (incite curtailment of ammunitions/weapons)
§ Issue: The intent of the Russian Nationalists?
· (1) To Aid the Ru
); Charged under Criminal Syndicalism Act
§ Test: [Same as Gitlow]
§ Holding: Court held that the Act is not an unreasonable or arbitrary exercise of police power of the State, unwarrantably infringing on any right of free speech, assembly or association, or that those persons are protected from punishment by DP who abuse such rights by joining and furthering an organization menacing the US Govt.
· Use the Bad Tendency Test to Review State Statutes
§ Note: Legislature can target “membership” in criminal groups.
§ Concurrence: [Brandeis]
· Applied Clear & Present Danger Test:
o Required:
§ (1) Immediacy AND
§ (2) Serious Injury (High Probability)
· *Also factors in “Gravity of Harm”
o The greater the gravity of harm à lesser the immediacy (sliding scale)
· In order to support a finding of Clear & Present Danger:
o (1) Immediate serious violence was to be expected or was advocated OR
o (2) That past conduct furnishes reason to believe that such advocacy was then contemplated
· Rejects Gitlow (not want to defer to Legislature)
o Court should always determine if the particular application of a statute satisfies the Clear & Present Danger test.
o Dennis v. United States: [Threats]
§ Facts: D’s being charged under Smith Act à willfully and knowingly conspiring to organize as the Communist Party to overthrow of the government; Not being charged with “advocating overthrow of government”; Being charged with “conspiring”
§ Rule: Applies the Clear & Present Danger Test
· Overrules Gitlow & Whitney
§ Clear & Present Danger Test:
· Changes the “imminence” requirement
· Gravity of the harm can lessen the requirement for imminence
o Gravity of harm X Probability of success = Constitutional
o Government does not have to wait until the eve of the attack
§ Note: Also acknowledges that “conspiracy” to advocate can be constitutionally restrained because the “existence of the conspiracy” is what creates the danger.
§ Implication à basically removed imminence requirement from test
§ Concurrence: [Jackson]
· Differentiates between two types of speech
o (1) Speaker on street
§ Apply C&P Danger Test
o (2) Group Advocating Overthrow of Govt
§ Defer to Legislature
§ C&P Danger Test has no role
§ Dissent: [Douglas]
· Gravity of harm should not overshadow imminence requirement [Probability of Harm occurring]
· Communists are not a threat to US Government & punishment is unwarranted
