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Constitutional Law II
St. Johns University School of Law
Shea, Thomas F.

Constitutional Law II
Professor Shea: Spring 2007

The First Amendment: Freedom of Speech and Press

A. First Amendment: Scope and Interpretation à
1. Protection from the Government à
a. If you are a person, then you have the protection of the Constitution against the government.
b. The purpose of the Constitution was to create and limit government.
c. No protection against private individuals
2. Due Process à
a. The constitution states that no state shall deny due process of law to any person.
b. Due process consists of procedural due process and defined how to proceed.
c. The Due Process Clause also creates substantive due process which incorporates the Bill of Rights to the states (with limited exceptions).
i. Basically what the federal government can’t do to you, the states cannot either.
ii. The states ratified the Constitution so they are stuck.
3. The Supreme Court of the United States à The Supreme Court gets the LAST chance to interpret the Constitution and thus have the final say.
4. The First Amendment à
a. The Founders wanted free speech in the Constitution because they never had it from the British in their capacity as colonies.
b. This says that Congress shall make no law abridging the freedom of speech or of the press.
B. Regulating Speech à
1. Sedition Laws à
a. Sedition laws prohibited any opposition to lawful authority.
b. People were tried for violating these laws and thrown into federal jail.
c. President Jefferson thought that these laws went directly against the First Amendment and pardoned everyone convicted of violating sedition laws.
d. Then time went by and the question of the meaning and protections of the First Amendment went unaddressed.
2. Constitution in Changing Times à
a. Literally, you’re free to speak and publish. But the principle is clear that regardless of how the expression is done, they are all in the spirit of changing times.
b. That’s the job of the courts à to interpret the Constitution in light of changing times.
i. i.e. the founders didn’t know about television but did they mean to protect it?
c. The Constitution is a device to last through changing times and must be interpreted as such.
C. Location Limitation On First Amendment Protection à
1. The place can be important when you talk about your First Amendment rights.
a. i.e. the Supreme Court has been writing some bad opinions lately, so I’m going to go in there and talk to the Justices. But just because it is Government property doesn’t mean that it’s open to all citizens at any time. There is not access at any time.
D. State Institutions vs. Private Institutions à
1. Who Must Honor First Amendment Rights à
a. The Government
i. i.e. I am a professor at SUNY à I can express my opinion and as a tenured professor, they cannot fire me. But what about St. John’s? St. John’s is a private organization so they do no have to honor First Amendment rights so SJU can fire me. SUNY is a public institution so it’s an agent of the Government and the Constitution protects me against governmental power.
b. If a private organization does anything to restrict your speech, they do not violate your constitutional rights.
2. A private person cannot violate your First Amendment rights either.
a. If you make a speech at a ballpark saying that taxes are too low and someone kills you because of it, he hasn’t violated your right to free speech because he’s not the government. But he does go to jail for murder.
E. Limitation on First Amendment Protection of Speech as Element of Crime à
1. Speech as an Element of a Crime à Speech as an element of common crime is not be protected and was never intended to be protected.
a. Hypo: “Give me your money or I’ll kill you.” You can’t get off because of the First Amendment.
b. Hypo: An undercover cop hears you and a friend talking about robbing a bank next week and arrests us for conspiracy to rob a bank. Agreement to commit a crime is a conspiracy which is a crime and you can be put in jail for the mere agreement. You say, this is wrong à we didn’t do anything so you’re just punishing us for our speech which violates my First Amendment rights. The Court says speech as an element of a crime should not be protected and was never intended to be protected.
c. You cannot threaten the life of someone and say that the First Amendment protects you when you’re prosecuted for the crime of threatening someone.
i. But if the threat isn’t serious then it’s okay.
F. Limits on First Amendment Protection of Counseling/Urging/Advocacy à
1. General Rule à The 1st Amendment does not protect speech if you are asking someone to engage in imminent lawless action (advocacy of action) when there is a clear and present danger that the person will actually commit the crime.
b. Speech urging people to take imminent lawless action can be a crime (i.e. urging people to overthrow government by force) but because speech is involved and it is hard to tell if you’re trying to convey an idea or advocate illegal action, the Court has interpreted the First Amendment to require that you may only be punished for urging another to commit a crime when there is a clear and present danger that the action will actually occur.
i. If you urged another to do an illegal act, and there was a clear and present danger that he did it, then you can be prosecuted for it as long as it violates a constitutional statute.
2. Shea says you need three things to have urging à
a. A statute punishing urging;
b. Actual urging of imminent lawless action;
c. Clear and present danger that the audience will actually act according to the urging.
i. Judge decides if there was a clear and present danger.
3. Shea’s Defenses to Urging à
a. I was not urging an action, I was urging an idea.
i. Jury decides if there was advocacy of imminent lawless action.
b. I was urging a lawful action.
c. The listener does not pose a clear and present danger of actually committing the crime.
4. Older Cases on Urging
a. In Schenk v. US, the Court held that the 1st Amendment did not protect pamphlets describing the draft as an assertion of the power of the rich upon the poor and stating that anyone who didn’t assert their right to protest the draft was disparaging the rights of citizens. Their reasoning was that:
i. At a time of war, things that you could normally say at a time of peace cannot be tolerated if they are a hindrance to the war effort.
ii. All you need to show is intent to obstruct the draft, because the Espionage Act punishes obstruction and attempted obstruction.
b. In Debs v. US, the Court more clearly described the clear and present danger standard. There, a former presidential candidate for the socialist party gave a speech to the socialist party in which he said he sympathized with draft dodgers, and felt that they were no more guilty than he for givi

ii. We have a sliding scale: the greater the harm that could result from the imminent lawless action, the less of a showing of imminence will be required.
b. In Yates v. US, the Court wanted to clarify the Dennis test:
i. Advocacy directed to action for the accomplishment of forcible overthrow is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action and other circumstances reasonably justify apprehension that action will occur.
ii. Those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.
c. In US v. Spock, Spock was an anti-Vietnam war advocate and drafted part of “The Call” but his speech only condemned the war and draft. He said things like “I hope young men will have the courage to resist the draft in this war.” He was prosecuted and convicted of interfering with the war effort. However, the Court overturned his conviction because Spock had just admired young men who avoid the draft, but had not advocated for them to avoid the draft. A jury could not infer that he was counseling people to draft dodge just b/c he hoped that stating his views frequently might lead young men to resist the draft.
8. Broad vs. Overbroad Urging/Advocacy Statutes à
a. In Brandenburg v. Ohio, the OH statute was overbroad because it punished anyone who “advocates or teaches the duty, necessity or propriety of violence as a means of accomplishing reform” or “who voluntarily assembles to teach or advocate the doctrines of criminal syndicalism.”
i. Teaching moral necessity for violence and uprising is not the same as preparing a group for violent action and steeling it to such action. Any statute which fails to make this distinction is unconstitutional.
ii. This statute did not require imminence
iii. Shea says two things could appear in the statute that would make it proper:
a) Don’t urge people to DO this; and
b) Teaching the idea of violent overthrow is NOT a crime (teaching the idea of imminent lawless action would be a crime).
9. Summary à
a. If there is no statute prohibiting advocacy of an idea à
i. See if advocating imminent lawless action and
ii. Whether there is a clear and present danger that action will occur.
iii. Intent to prove substantive evils is necessary to lose constitutional protection. Debs v. United States.
b. If there is a statute prohibiting advocacy of an idea à
i. See if it is sufficiently narrowed to prohibit only advocacy, and if not, then narrow it.
ii. Once it’s narrowed, then do clear and present danger test, under fact-specific circumstances.
G. Doctrine of Overbreadth à
1. This doctrine only has application in First Amendment cases because we want to protect the fundamental right of freedom of speech.