Fall 07 First Amendment – Rhodes
Important Note: Come to class – he puts hypotheticals from class on the exam, which has some multiple choice.
Part I – Content-Based Regulations of Speech
A. “Congress shall make no law… abridging the freedom of speech.”
B. The First Amendment protects five liberties:
1. Religion (also “separation of church and state”)
4. Assembly (peaceably)
5. Petition to redress grievances
4. *Precedent (this interpretation for the Bar exam)
5. Ethos (ethical arguments) or “national values”
a) Marketplace of Ideas (Justice Holmes)
b) Promotes self-governance
c) Individual autonomy (self-expression)
d) Neutrality – government views all ideas equally
D. First Amendment Analysis
1. First question to be asked: “Is the regulation of speech content-based?”
a) If yes, then apply Strict-scrutiny Test (must be a compelling governmental interest). Exceptions: unprotected speech, infra.
b) Must be the least restrictive means of achieving that governmental interest.
c) Note: If Content-neutral, then apply Intermediate Scrutiny.
2. Determining whether the speech is content-based:
a) Government is regulating speech based on the content of the message.
b) Must be narrowly tailored to that interest to pass constitutional muster.
c) Examples: Playboy case
d) Examples of content-neutral interests:
(1) Free flow of traffic at airports, or state fairs, administrative needs of selective service, preventing fraud, curtailing littering, preserving peach and privacy in residential neighborhoods, fighting corruption, prostitution, organized crimes, etc.
3. Unprotected Speech:
a) Incitement to illegal activity;
b) Obscene speech (e.g., child pornography);
c) “Fighting words” (an invitation to brawl);
(1) Hostile audiences
(2) True threats
d) Commercial speech has a lesser degree of protection;
e) Defamation (libel/slander).
II. Incitement of Illegal Activity and Seditious Libel’s History
A. Schenck v. U.S. (1919) – Holmes and a unanimous Court sided with the government to affirm the defendants’ convictions for mailing leaflets which asserted that conscription violated the Constitution. The speech was not protected because it created “a clear and present danger” of hindering the government’s war effort, something “Congress has a right to prevent. It is a question of proximity and degree.” Holmes also wrote: “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
zed under the FIRST AMENDMENT to the U.S Constitution must be subjected to a heightened level of judicial scrutiny before legislation abridging free expression could be upheld, a level of scrutiny that was eventually adopted by a majority of the Court for the balance of the twentieth century.
3. Holmes contended that the Abrams’s majority opinion should have more closely examined the intent of the pamphleteers.
4. The danger must be imminent: unless the speech creates a “present danger of immediate evil,” Holmes argued that Congress cannot punish the speaker without violating the federal constitution.
In concluding that the “silly” leaflets distributed by Abrams and his co-defendants created no clear and present danger, Holmes said that “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”