Howard_First_Amendment.doc
Freedom of Speech – Why Government Restricts Speech – Unprotected and Less Protected Expression
Introduction
I. History
A. Palko v. Connecticut – “protection of speech as a fundamental liberty in part because our history political and legal, recognized freedom of thought and speech as the indispensable condition of nearly every other form of freedom.
B. Prior Restraints
1. A barrier to licensing was at one time viewed as the major thrust of the First Amendment.
C. Seditious Libel
1. In order to eliminate the most criticized procedural aspects of English law, the Sedition Act provided that truth would be a defense, that malicious intent was an element of the crime, and that the jury would decide such issues as the seditious tendency of the publication.
D. Later History
1. Not until WWI era did major free speech issues reach the Supreme Court.
II. First Amendment Theory
A. Serves 3 principle Values:
1. Advancing knowledge and truth in the marketplace of ideas
2. Facilitating representative democracy and self-government
3. Promoting individual autonomy, self-expression, and self-fulfillment.
B. Negative theories
1. Special reason to distrust government in speech regulation
2. Plain errors throughout history (ex. seditious libel cases)
3. First amendment is meant to do maximum service in times of intolerance to ideas
III.First Amendment Jurisprudence
A. Justifying Special Protection of Speech
1. Strong presumptive protection
2. Laissez-faire in the marketplace of ideas
a) Carolene Footnote 4: laws which impinge a specific bill of right required heightened scrutiny.
Federal Espionage Cases/Incitement to Violence
I. World War I Cases
A. 1917 Espionage Act – Congress created 3 new crimes:
1. Willfully making false statements with intent to interfere with military or promote success of U.S. enemies.
2. Causing insubordination in the military
3. Willfully obstruct the recruiting or enlistment in the military
B. Schenck v. United States (1919)
1. Facts: Socialist party leader who is arrested for causing insubordination and draft resistance after he wrote, published and distributed leaflets suggesting that the draft was unconstitutional.
2. Rule: Clear and Present Danger Test – whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.
a) Gov. can punish free speech subsequent to publication if it presents a clear and present danger of such harm.
b) Gov. has the burden of showing that the speech will bring about immediate danger and consequences (classic ex. “falsely yelling fire in a theater”)
3. Holding: The 1917 law punishes conspiracies to obstruct as well as actual obstruction, so whether or not the leaflet was successful in obstructing the draft is irrelevant.
4. Distinguishing protected vs. unprotected speech
a) Falsity – truth or falsity of the leaflets could not be proved.
b) Panic – leaflets did not cause panic and no evidence offered by government.
c) Context matters – wartime cuts in favor of speech regulation.
C. Frohwerk v. United States
1. Facts: D convicted under Espionage Act for writing articles criticizing the war and the draft that were published in a newspaper and circulated in particular areas of town.
2. Holding: Court affirms the conviction and cites Schenck but not for CPD Test, but rather for showing that a person can be convicted for using words of persuasion. The newspapers here were generally available, not targeted. But they could have been read by draft aged men and that is enough.
a) Court gives example: Framer’s never intended to give First Amendment Protection to counseling of murder. This is a reasonableness argument.
D. Debs v. United States
1. Facts: Socialist Party leader convicted of giving a speech in which he said he was proud of 3 members of the Party who were convicted for draft resistance.
2. Holding: Court affirms the conviction and approves a jury instruction on clear and present danger test which described the test to mean “natural tendency and probable effect”.
a) Whether the speech had a natural tendency and probable effect to cause those who heard it to violate the draft law.
E. The Clear Present Danger Test
1. Clear – seems to mean “conceivable” – is it conceivable that those who heard the speech would engage in draft resistance.
2. Immediacy? – As applied, the test did not require an element of timing.
a) No requirement that anyone actually heard or read the speech and acted on it at all.
3. Intent – government had to show that the speaker had the intent that the audience would engage in the conduct that the speech was advocating.
F. 1918 Amendment to the Espionage Act – amended to prohibit urging any curtailment of production of materials necessary to prosecution of the war with intent to hinder its prosecution.
G. Abrams v. United States
1. Facts: Russian born anarchists convicted under the 1918 amendments for tossing leaflets out a window (not targeted) urging and advocating the curtailment of ammunition productions.
2. Holding: Court rejects the first amendment challenge because the leaflets could have the natural tendency and probable effect of causing resistance to the war effort – highly possible that someone who read it would quit their job at the factory if they knew the weapons were being used to suppress the Russian revolution.
3. Holmes Dissent: Tries to tighten the requirements of the test
a) Statutory Construction – The law requires specific intent to interfere with the war against Germany (not Russia).
b) The Test: “clear” is back in the test, but the word “present” is substituted by the word “imminent.”
(1) The government cannot prove that the leaflets would have any effect, let alone a clear and imminent threat.
(2) The leaflets were anonymous and were distributed at random.
c) Test should apply the same in wartime and peace time.
d) Marketplace of Ideas – need to protect unpopular speech because it will foster the advancement of knowledge and the discovery of truth.
e) Opinion/Fact Distinction:
(1) Opinion or ideas – say what you want and see if people want to buy it.
(2) Facts – misstatements can be regulated.
f) Applying the Clear and Imminent Danger Test:
(1) More speech is the answer to false speech.
(2) Emergency renders “immediate danger”
(3) Only when rebuttal speech is not possible (ex. emergency) should speech be censored.
g) Not concerned with the gravity or severity of potential harm – that is a legislative determination.
State Sedition Cases
Reversion to Bad Tendency Test: The Red Scare Cases
I. States begin passing laws to protect our democratic processes and structure.
II. Gitlow v. New York – state law
A. Facts: NY Law set out the definition of criminal speech and makes it a crime to advocate the violent overthrow or distribute speech advocating violent overthrow. Radical Socialist assisted in drafting and publishing a Left Wing Manifesto and Revolutionary Age Paper. No evidence of any effect of his speech.
B. Issue: May states prohibit the advocacy of anarchy when there is no evidence of any effect?
C. The Law:
1. Mere promoting or endorsing socialism is not made criminal.
2. But, explicitly advocating the overthrow of government is prohibited.
D. Holding:
1. The Manifesto is advocacy because it implicitly advocates violence through use of flamboyant language, though it doesn’t explicitly advocate assassination or violence.
2. Court assumes that the 1st Amendment is incorporated by the 14th, but the freedom of speech for its citizens does not deprive a state of the right of self-preservation.
3. Causation – No jury instruction on any form of causation – no clear and present or natural tendency instruction.
a) The legislature predetermined the link between speech and harm, so the jury mere
mounted of threat to national security posed by the Soviet Union and China, and anti-communist sentiment generated a number of restrictions on subversive speech.
B. Smith Act was an attempt by Congress in the 1940s to combine the CA and NY subversive speech laws into a federal law. Prohibits advocacy and membership
II. Dennis v. United States – deletes any element of “immediacy” from the CPD test.
A. Facts: Top 11 leaders of American Communist Party are indicted for conspiring to violate the advocacy and organizing provisions; not charged under the membership provision. Court grants cert. to review only the abstract issues, does not read the 16,000 page record.
B. Plurality Opinion by Vinson:
1. The Test the Court Adopts:
a) Whether the gravity of evil, discounted by the probability of success, justifies such invasion of free speech as is necessary to avoid the danger.
b) Gravity of evil is not threshold question.
c) Rather, if the harm is found to be serious enough, then the causation elements are diluted.
(1) Court requires a lesser showing of clear and imminent danger if the harm is grave enough.
(2) Return to the natural tendency test.
d) Causation is question of law, not fact (no jury instruction).
2. Government need not wait until the danger is imminent
a) If government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.
C. Frankfurter’s Cost Benefits Analysis – wants a balancing test for free speech:
1. Benefits Side:
a) National security – the government is trying to protect against a violent overthrow of government.
b) Communism is serious and dangerous enough to be regulated.
2. Costs:
a) Not all speech should be highly valued. Communist speech is not highly valued.
b) However, sustaining the convictions here will restrict future speech.
c) This will make people in other parties concerned about their speech (chilling effect).
d) Concern that other parties will try to distance themselves from communist principles.
D. Jackson’s Opinion:
1. CPD Test should only be applied when there is actual danger and when you can develop a clear record of the speech – did not read the record in this case.
E. Black’s Dissent:
1. Speech is too important to apply rationality review and defer to Congress.
2. Causation is question of fact, not law.
F. Douglas’s Dissent:
1. Only justice to review the record.
2. Indorses the CPD test, but rejects the Vinson’s watered down version.
3. Test requires imminence:
a) There must be some immediate harm that is likely if the speech is allowed.
4. Should be a jury question.
G. The one thing we have a majority on is that causation is question of fact for the jury.
III.Cases Between Dennis and Brandenburg (20 Year Period)
A. Conspiracy prosecutions against the 2nd tier of Communist Party
1. Yates v. United States
a) Facts: Court overturns convictions and orders acquittals.
b) Two Fatal Flaws:
(1) Jury Instructions
(a) Failed to distinguish between abstract doctrine and advocacy.
