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First Amendment
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"

1.      Overviewà“Congress shall make no law . . . abridging the freedom of speech.”
a.   Under British law, the prevailing view was that any criticism of the King was a crimeàThis was true whether or not the statement was true or false
b.   Framers intent was to prevent a licensing system, whereby the government would have to approve a message before it was published and be able to restrain freedom of expression.
c.   Other than this intention, there is no other evidence of the Framer’s intent, so “Intent of the Framers” is not a good argument.
2.      Early Free Speech Restrictions and Theories
d.   Sedition Act of 1798àDesigned to limit the influence of “dangerous citizens” of foreign nations as well as muting critics of gov’t policy.
i. Prevented persons from printing, publishing, or uttering false scandalous, and malicious statements against US Gov’t
ii.            Expired in 1801 and ruled unconstitutional in NY Times v. Sullivan
iii.           Those convicted under the act were pardoned by Thomas Jefferson
e.   Marketplace of Ideas Theory
i. Idea that competition of ideas will result in the “good idea” prevailing.
ii.            Rationale:  It is better for the marketplace to decide what is good or bad than it is for the government to do so.
iii.           Criticisms of theoryàSometimes it takes a long time for the good idea to prevail.
f.    Functional Democracy
i. Idea questioning how people can govern themselves if they have fear that their ideas will land them in jail, as often happened in England.
ii.            Some people think political speech is the “heart” of the 1A and that America’s government was founded on an idea of “individual liberties” and is a conception of “who we are.”
3.      Judicial Scrutiny  and the First Amendment
g.   There is a huge distinction between “content based” regulations and “content neutral” regulations.
i. Content based laws punish speech on the subject matter and are upheld only upon passing strict scrutiny.
ii. Content neutral laws do not regulate on the content, but on the secondary effects or time, place, and manner of the speech.
1.   Content neutral laws are subjected to intermediate scrutiny
h.   Unprotected SpeechàCertain speech has very low value and is subjected to its own, unique test. 
i. TYPES:  Incitement of Illegal Activity; Fighting Words; Hate Speech; Obscenity; Commercial Speech; Defamation/Libel
ii.            Gov’t Reg:  Government may regulate the content of these types of speech without regard to different levels of scrutiny.
1.   However, the government may not draw distinctions within each class of speech
2.   Example:  Government can prohibit cross burning as a regulation of “hate speech.”  BUT, gov’t cannot regulate only “cross burning intended for racial intimidation.”
3.   If gov’t draws distinctionsàStrict Scrutiny applies
i.    Schenk (Clear and Present Danger Test)
i. Facts:  D’s were members of socialist party and found guilty of violating the Espionage Act of 1917.  Act prohibited conduct obstructing recruitment and enlistment of US Armed Forces.  D’s handed out leaflets advocating resistance to the war draft.
ii.            Test:  Are the words used in such circumstances and 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?
iii.           Rationale:àIn many places, and during ordinary times, D would have been within their K rights.
1.   However, what may be said without punishment during times of peace is not always protected during times of war. 
2.   The character of every act depends on the circumstances in which the act occurs.  
iv.           NOTES:  Circumstances surrounding the speech are important to consideràWhat is a “clear and present danger?”àimmediacy, probability, severity of harm
j.    Abrams (Marketplace of Ideas)
i. Facts:  Similar to Schenck.  However, Holmes, who wrote the majority opinion in Schenck, dissents for the first time in these types of cases, as he changes his view.
ii.            RULE:  Congress may punish speech that produces or is intended to produce a clear and imminent danger and this power is greater during times of war; BUT, it is only the clear and present danger that warrants Congress to limit the expression of opinion.
iii.           Rationale Holmes Dissent:
1.   “Congress shall make no law abridging freedom of speech”
iv.           Marketplace of Ideas ConceptàThe ultimate good desires is better reached by free trade in ideas and the best test of truth is the power of getting accepted in the competition of the market.
k.   Dennis (Gravity of the Evils)
i. Facts:  D’s punished pursuant to the Smith Act of 1941, enacted to combat growing fears about Communist spies in the US.  Act criminalized the teaching or advocacy of destroying any government unit within the US by force/violence.  Record shows that D planned to initiate violent revolution at an “opportune time.”
ii.            RULE:  Does the “gravity of the evil”, discounted by its improbability, justify such invasion of free speech as is necessary to avoid the danger?
iii.           Rationale: 
1.   Government does not have to wait until the plans “have been laid and the signal is awaited” before it acts.
2.   If govt knows that group is aiming to overthrowàmust act
3.   “Success or probability of success” is not a factor in whether the government should act, and it is irrelevant whether or not there is an attempt to overthrow.
iv.           Critics of this TestàEven if a requisite danger exists, founders believed the benefits derived from free speech outweig

that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed, may be forbidden.
1.   “Offensive words”àWhat men of common intelligence would understand to be words causing the average addressee to fight.
iv.           NOTE:  Words that are not part of the “free exchange of ideas” but just a hurling of insults, only interpreted as an invitation to fight, are not protected.
q.   Feiner v. NY (Hostile Audience/narrow application of Fighting Words)
i. Facts:  D was addressing crowd on a street with megaphone.  Crowd starts getting restless and one person in audience threatens D.  Cop asks D to step down 3x, and upon refusal, arrests him for breach of the peace.
ii.            Rule:  When speaker passes bounds of argument or persuasion and undertakes incitement to riot, police must not be powerless to prevent a breach of the peace.
iii.           Rationale:  Breach of peace embraces a variety of conduct which destroys or menaces public order and tranquility.
1.   Court must respect the interest of the community in maintaining peace and order on its streets
2.   Ordinary murmuring and objections of an audience cannot be allowed to silence a speaker. 
iv.           NOTES:  There is a point in time where fighting words, directed at an entire audience (as oppose to one individual) can incite the audience to rise up against the speaker)
1.   Some believe that if the police can act in name of “preserving order,” they must first take reasonable efforts in protecting the speaker by stopping those who are becoming restless and hostile.
r.   Cohen (Factors of Fighting Words)
i. Facts:  D arrested after standing outside of courthouse wearing “FUCK THE DRAFT” jacket.  D was silent the entire time.
ii.            Rule:  Absent a particularized showing that there was intent of disobedience or disruption, the state may not punish simple displays of vulgarities.
iii.           Factors in determining if speech is directed at an individual or specific group:
1.   Ability to avoid speech;
2.   Duration that person/audience is subjected to speech;
3.   Whether or not any objection to the speech is made.
iv.           Rationale:  Even though a person’s actions may be “vulgar”, vulgar does not equal “obscene.”  Obscenity is worse.