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First Amendment
Stetson University School of Law
Davis, Kirsten K.

The First Amendment – Spring 2017 (Davis)

The 1st Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

2 Big Questions In This Course:

What falls under the 1st amendment?

What will we prohibit and what we will allow? How do we balance it?

Advocacy of Illegal Action

Emerging Principles

Schenck v. United States (1919)

Bolshevic revolution was going on during WWI. Charges were a conspiracy to violate the Espionage Act by causing/attempting to cause insubordination in the military and obstruct recruiting.

Defs printed and circulated to men called and accepted for service document to cause insubordination and obstruction.

His targeting men already called & accepted could have bearing on the opinion in this case.

Judge Holmes: Character of every act depends upon the circumstances in which it is done. Most stringent protection of free speech would not protect a man falsely shouting “FIRE” in a crowded theater causing a panic.

In this regard, Judge Hand said, “Words are not only the keys of persuasion, but the triggers of action.”

When a nation is at war many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no court could regard them as protected by any constitutional right.
Admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.

Statute punishes conspiracies to obstruct conscription as well as actual obstruction.
No ground for saying success alone warrants making the act a crime, intent alone is enough. AFFIRMED

Debs v. United States (1919) – this came before the court before Schenck, but was decided after.

Facts – Giving a speech in a park in Canton, Ohio to a general audience of 1,200 people. Main theme of the speech was socialism, its growth, and a prophecy of its ultimate success. General utterances to encourage those present (not targeting drafted men specifically) to obstruct recruiting service.

Def was convicted for violating Espionage Act for obstructing /attempting to obstruct the recruiting service and for causing & attempting to cause insubordination & disloyalty in the armed services.

Jury were instructed that they “couldn’t find the def guilty unless the words used had probable affect to obstruct the recruiting service and unless the def had specific intent to do so in his mind. (Bad Tendency Test).

Schenck & Debs – Schenck isn’t the start of 1st Amendment law, it’s both Schenck & Debs read together!

Debs raises serious questions as to what the 1st Amendment, especially the ‘clear and present danger formula’ can possibly have meant at the time.
Judge Holmes offers no discussion of the sense in which Debs’s speech presented clear & present danger.

Schenck is where Holmes addressed free speech, his opinion on Debs merely addressed two points regarding admissibility of evidence.

Clear & Present Danger Test:

Clear & present danger;

Proximity – proximity to the action.

That will bring about the substantial evils Congress has a right to prevent;

Degree – degree of “evil” in that action.

Bad Tendency Test:

The natural tendency & intended affect was to obstruct;
This was the probable affect in the circumstances; and
Had the specific intent to obstruct.

Main difference between the clear & present danger and the bad tendency tests is that clear & present danger focuses on the affect, whereas bad tendency focuses on intent.

Abrams v. United States (1919)

Abrams supported the Russian revolution and urged the curtailment of war production.

Conviction upheld by the court.

Majority decided, even though the U.S. was not specifically at war with Russia, the court found intent on the principle that men must be held to have intended, and be accountable for, the effects their acts were likely to produce.

Established intent to interfere with the war with Germany.

Holmes dissented (See Pg. 13 – 15).

Said he could not see how anyone can find the intent required by the statute in any of the defs’ words.

Only object was to help Russia and stop U.S. intervention there, not to impede the U.S. in the war it was currently in.

He argues that this statute must be taken to use its words in a strict & accurate sense.
Also creates the marketplace of ideas – “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the though to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Think free trade in ideas – “favorite color” and “Pluto is a planet” examples.

On the other hand…Robert Wolff said, “It is not to assist the advance of knowledge that free debate is needed. Rather it is in order to guarantee that every legitimate interest shall make itself known and felt in the political process. Justice, not truth, is the ideal served by liberty of speech.

State Sedition Laws

Second group of cases in the initial development of the 1st Amendment doctrine involved state “sedition laws” – 2 basic types:

Criminal Anarchy Laws (Gitlow v. New York pg. 19).
Criminal Syndicalism Laws (Whitney v. California pg. 23).

Gitlow v. New York (1927)

Def was member of a Left Wing Section of the Socialist Party and its National Council.

This group adopted a “Left Wing Manifesto” – Gitlow arranged for printing & distributing 16k copies of the manifesto.

Manifesto condemned the dominant “moderate Sociali

ty or even necessity for a resort to force and violence, is not the same as preparing a group for violent action/steeling into such action.”
Brandenburg Test:

Advocacy must be directed to inciting or producing imminent lawless action;
And is likely to incite or produce such action.

Madonna Women’s March Speech [Current Event – Possible Exam Question]

Applying the Debs, Brandenburg & other tests.
Don’t think it fulfills these tests but clear and present danger? Maybe.

LTTE. Holder v. Humanitarian Law Project (2010)

Justice Roberts held that the congressional prohibition could constitutionally be applied to training and expert advice for peaceful speech activities even if the provision of such support was not intended to assist in the unlawful activities of the organization.

Said the statute does not cover independent advocacy on behalf of such organization or even membership in such organizations.
Rather it covers support including training, expert advice, or speech under the direction of or in coordination with an organization as terroristic in character.

Roberts said the support offered in this case was a form of presumptively protected speech, BUT the organizations were so tainted by their criminal conduct that any contribution facilitates that conduct.

Support frees up other resources, helps to legitimize such organizations, and strains U.S. relationships with its allies.

Reputation & Privacy

Group Libel

Beauharnais v. Illinois (1952)

Court sustained a statute prohibiting exhibition in any public place of any publication portraying “depravity, criminality, un-chastity, or lack of virtue of a class of citizens, of any race, color, creed, or religion, which exposes such citizens to contempt, derision, or obloquy…or which is productive of breach of the peace or riots.

Said, “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order & morality.

Protection of the state is what’s in mind with this statute & the statute is constitutional as it protects the state of Illinois peace and well-being.

Court Ruled: Trial court properly declined to require the jury find a “clear & present danger,” because LIBEL is not protected speech (Think professor said this changes down the road). OPINION GETS LEFT BEHIND.