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First Amendment Rights
Southern Illinois University School of Law
Macias, Steven J.

First Amendment Rights


Spring 2015

· First Amendment

o Establishment Clause

o Free Exercise Clause

o Speech Clause (primary focus)

o Assembly Clause

o Right of Association (non-textual)

o Language and history are largely unhelpful

· Why Protect Speech?

o 1. Democracy

§ Political speech at the core of the First Amendment

§ A way for people to check the governors

o 2. Truth

§ Marketplace of ideas

§ Analogies: crowd-sourcing; adversarial legal process

o 3. Autonomy

§ Consistent with liberalism

§ Necessary to self-expression, self-fulfillment

o 4. Tolerance

§ Consistent with pragmatism/skepticism

§ One cannot be certain of the correctness of even one’s own opinion

The Problem of Subversive Advocacy

· First Encounters (Espionage Act)

o Schenck v. U.S.

§ Facts: Schenck mailed literature to draftees during WWI that criticized the draft.

§ Rule: Speech that would ordinarily be protected by the First Amendment may nevertheless be prohibited when it is used in such circumstances and is of such a nature as to create a clear and present danger of substantive evils that Congress has a right to prevent.

§ Reasoning: The purpose of Schenck’s mailed literature was to inform draftees of their right to assert opposition to the draft and to criticize the draft’s political proponents. However, the literature arguably would not have been sent unless it was intended to have the effect of encouraging draftees not to join the draft. The character of the act depends upon the circumstances in which it is done. The required question in every case dealing with this issue is whether the words used are expressed in such circumstances and are of such a nature as to create a clear and present danger. It is a question of proximity and degree.

o Frohwerk v. U.S.

§ Facts: Frohwerk wrote 12 articles denouncing the U.S. involvement in WWI.

§ Rule: Same as Schenck.

§ Reasoning: All of this speech could have been constitutionally written during peacetime, with the protection of the First Amendment. However, because the United States was at war, the speech had to be considered in relation to the circumstances in which it was made.

o Debs v. U.S.

§ Facts: Debs gave a speech protesting U.S. involvement in WWI.

§ Rule: Same as Schenck and Frohwerk.

§ Reasoning: The main theme of Debs’ speech was the promotion of Socialism as a movement and the prediction of its ultimate success. While the theme of the speech itself is constitutional, the speech can be restricted by the government if, when considered against the background of circumstances in which it was made, the practical effect of the speech is to encourage its hearers to obstruct the draft.

· The Abrams Case and the Holmes Dissent

o Abrams v. U.S.

§ Dissent Holmes: The indictment and subsequent conviction of Abrams and his group is based solely on the publication of two leaflets. The first criticizes the United States President for being a coward in World War I, and blames the cause of the war on capitalism. The second calls for America’s help in furthering the Russian Revolution. Neither of these statements attacks the form of government of the United States in any way, as prohibited under the EA. Additionally, the government does not present any evidence that the pamphlets were actually made and distributed with intent to cripple the United States in its production of essential war materials. Without proving intent, the conduct could not be considered criminal under the EA. While previous decisions in Schenck, Frohwerk, and Debs v. United States. were correctly decided, the present case differs from the speech at issue in those cases because there is no clear and present danger that Abram’s speech could possibly harm the war effort or the draft. Abrams should not have been convicted under the EA because the intent behind publishing the leaflets was to encourage Americans to help Russia and not to inhibit the success of America in World War I.

· Adopted decades later.

· Learned Hand and the Masses Case

o Masses Publishing Co. v. Patten

§ Facts: The journal is critical of the United States’ involvement in World War I. The August issue contained several cartoons and stories of people exhibiting resistance towards the war effort. Patten, the postmaster, refused to distribute the issue.

§ Rule: Under the First Amendment, the government may not prohibit speech that is critical of the United States government but does not directly incite persons to violate the law.

§ Reasoning: Under the First Amendment, the government may not prohibit speech that is critical of the United States government but does not directly incite persons to violate the law. There is a significant constitutional difference between speech that merely stirs up political agitation versus speech that directly encourages people to resist or disobey the law. Without more of a direct call to action, Patten’s prohibition on distribution of “The Masses” directly interferes with public discussion and speech in violation of the First Amendment.

· Brandenburg v. Ohio and its Implications (Advocacy of Illegality)

o Brandenburg v. Ohio

§ Facts: He was arrested after inviting a news reporter to attend a Ku Klux Klan rally. The reporter filmed Brandenburg in Klan regalia, burning a cross and uttering speech that was derogatory to African Americans and Jews.

§ Rule: Under the First and Fourteenth Amendments, a state may only regulate speech if the speech is proven to cause imminent harm, a likelihood of producing illegal action, and an intent to cause imminent illegality.

§ Reasoning: he OCSA cannot be sustained because it punishes the mere advocacy and teaching of violence for accomplishing a political goal as an abstract concept.

o Test from Brandenburg

§ The advocacy of law violation is punishable only if the advocacy is:

· 1. “Directed to inciting or producing imminent lawless action” (intent) and

· 2. “Likely to incite or produce such action” (result/immediacy)

§ (1) goes to the subjective mindset of the speaker

§ (2) goes to an objective determination of the consequences of the speech

§ Easy Cases:

· Falsely shouting “fire” in a crowded theater

· Intentionally lying on the witness stand

o Hess v. Indiana

§ Facts: Hess was arrested after one of the officers allegedly heard him shout an obscenity. Hess had shouted “We’ll take the fucking street later.”

§ Rule: Speech that advocates illegal activity or the use of force is protected under the First Amendment to the United States Constitution unless it is both intended and likely to provoke imminent illegal activity.

§ Reasoning: Hess’ exclamation was not intended as an exhortation to any particular group of people. There is no evidence that Hess contemplated or desired to provoke any immediate action as a result of his exclamation. As such, the statement is constitutionally protected speech and cannot be penalized by the state.

o NAACP v. Claiborne Hardware Co.

§ Facts: The NAACP sought to persuade people to join the boycott through social pressures, including publishing the names of those people who shopped at the white businesses. The leader gave a speech saying violators of the boycott were going to have their necks broken.

§ Rule: The government does not have a right to prohibit peaceful political activity designed to effectuate rights guaranteed by the Constitution.

§ Reasoning: For the NAACP or any of its members to be liable on account of association, it must be proven that the group’s goals were unlawful and that its members intended to further those goals. The goals of the boycott were to effectuate social equality already guaranteed in the Fourteenth Amendment. Even though the defendants used social ostracism to coerce individuals to join the boycott, the threat is not sufficient to overcome the First Amendment protect

de in public places and calculated to have a powerful emotional impact on others.

o The Constitutionalization of Libel

§ False Statements of Fact Categories

· 1. Libels about public figures on matters of public concern

o Test: New York Times

· 2. Libels about private figures on matters of public concern

o Test: Gertz

· 3. Libels about private individuals on matters of private concern

o Test: Dun & Bradstreet

§ New York Times v. Sullivan

· Facts: The newspaper article in question accused Sullivan’s police force of conducting a wave of terror against African American students and brutally harassing Dr. King. It is undisputed that several of the allegations were either false or exaggerated.

· Rule: If a plaintiff is a public official or is running for public office, he or she can recover damages for defamation only by proving with clear and convincing evidence the falsity of the defamatory statements and the presence of actual malice in the speaker.

· Reasoning: The only proper way to guarantee that the protections of freedom of speech and of the press are not ignored in civil libel actions is to adopt a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. Actual malice occurs when the defendant knew that the statement was false or acted with reckless disregard of the truth.

· Rule:

o A “public official” or a “public figure” may not recover for libel when the publication is a matter of public concern absent proof of “actual malice.”

o “Actual malice” is a term of art.

§ Knowledge that the publication was false or

§ Reckless disregard for the truth

· Rationale/Policy:

o Debate on “public issues should be uninhibited, robust, and wide-open.”

o Damage suits could chill such debate

§ Public Figures and Private Plaintiffs

· Gertz v. Robert Welch

o New York Times recharacterized:

§ “Under the First Amendment there is no such thing as a false idea, but there is no constitutional value in false statements of fact.”

§ Balances 2 competing interests: (1) uninhibited, robust, and wide-open debate and (2) “the essential dignity and worth of every human being.”

§ New York Times is a necessary evil in that victims of defamatory falsehoods will go uncompensated.

§ With private individuals, the balance tips far in favor of interest (2).

o Why treat private defamation plaintiffs differently?

§ More vulnerable to injury

§ More deserving of recovery

o Rule:

§ Private plaintiffs need only prove negligence in the publication of the defamation.

§ Must prove actual malice for recovery of presumed and/or punitive damages.

· Dun & Bradstreet

o Speech: False credit reports

o Rule: Gertz is inapplicable when there are “no matters of public concern.”

o What is the test for “public concern?”

§ Look to the “content, form, and context” of the speech.

§ Highly subjective test as illustrated in Synder.

§ Thus, it is important to have clear reasons for your determination.