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Constitutional Law II: First Amendment
SUNY Buffalo Law School
Kannar, George

Constitutional Law II Kannar Spring 2012

First Amendment

· First Amendment challenges begin around World War I

· Main Justices: Holmes and Brandeis


· Alien and Sedition Acts (1798)

o Disaster – the example of what not to do

o Close in chronology to the Constitution

o Considered a “horrible aberration” and “horrible misunderstanding” of the Constitution by the framers

· Intent of First Amendment

o Prescription against prior restraint

§ Prior restraint is licensing

o Notion of protection against Seditious libel

§ Criticism of the “King”

§ Considered important in Revolutionary America

· Cannot restrict criticism against the King when the framers where in fact criticizing the King

§ Make truth an absolute defense

· Civil War, Industrialization, Diversity, Immigration…none lead to First Amendment challenges

o Bad Tendency Doctrine

§ Government may prescribe speech if the tendency of those hearing is to do something bad/wrong/terrible

§ Government can strike down speech

§ Stretches to morals

· World War I challenges

o First “real” case in 1919 – Schenk

· “Clear and Present Danger”

· Communism

· Power of the Civil Rights Movement permanently challenges the First Amendment

o Supreme Court delays hearing anything dealing with these issues until a KKK member in Brandenburg v. Ohio (1969)

Rationales for Free Speech

1. Political

a. Public Speech

i. Issues that affect self-government and governmental issues should be protected

ii. Free expression is intrinsic within self-government

b. Core-Political Speech

i. Broad debate informs public policy

ii. Prevents government from entrenching itself indefinitely

1. Power for political change

iii. Prevents government abuse of power

iv. Free speech promotes political stability

2. Truth

a. Marketplace of ideas

i. Ability to sort out good ideas from bad ideas in a “verbal marketplace”

ii. Subject to same “market failures” as economies

b. Scientific theory is “culturally powerful” at the time

3. Autonomy

a. Intrinsic worth of speech

i. Art, Music, Literature, etc

ii. Education

4. Government Incompetence

a. Government is not capable of accurately making the necessary distinctions of truth and falsity

i. Natural tendency of Government to want to keep its power

ii. Bias of Government

Modes of Jurisprudence

· Absolutist

o All speech is protected or no speech is protected

· Balancing

o Balance of issues in favor of limiting speech

· Categorization

o “Bright-line” rules

o Distinguishes what is protected and not protected speech

§ In practice, first thing to do is to determine whether or not this issue is protected or not protected

o Other categories outside of protected/non-protected

§ Obscenities

§ “Fighting words”

§ Sexually explicit but not obscene

§ Speech in “certain regulated mediums”

o Possibility of different tiers of protected speech

Restrictions of Speech

(Don’t bother with overbreadth and vagueness arguments on the final)

1. Licensing

a. Parade permits, concert permits, etc

b. Criticized because it requires permission for expression

c. Procedural

d. Objective criterion

2. Overbreadth

a. Law is invalid “on its face”

b. Law will inhibit speech – “Chilling Effect”

i. Fear that government will attack the speaker

ii. Can exonerate someone that is doing something criminal because of the “chilling effect”

c. Must be “substantial”

d. Board of Airport Commissioners v. Jews For Jesus

i. “if any individual and/or entity seeks to engage in First Amendment activities within the Central Terminal Area at Los Angeles International Airport, said individual and/or entity shall be deemed to be acting in contravention of the stated policy”

ii. Perfectly unconstitutional

3. Vagueness

a. Too vague to be understood correctly

b. Inhibits speech

c. Coates v. Cincinnati

i. Ordinance read that it is illegal for: “three or more persons to assemble on any of the sidewalks and conduct themselves in a manner annoying to persons passing by”

ii. Wayyyyyy too vague

iii. “Chilling effect”

Incitement to Violence

· Clear and Present Danger

o Schenk v. United States

§ “The question in every case is whether the words used are used in such circumstances and are 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.” – Justice Holmes

§ Prior history was “bad tendency” – don’t allow people to falsely shout fire in a crowded theater

o Frohwerk v. United States

§ 12 newspapers suggest it is a “monumental and inexcusable mistake” to send soldiers to France

· Suggests it is akin to murder

§ Affirms “clear and present danger”

o Debs v. United States

§ Debs had to be “prudent” and “not say all that he thought” about opposing the war

· His words had his intended effect of opposing the war

· Intent is within “clear and present danger”

· Holmes may have been criticized by his peers for this decision and therefore reverses his stance in Abrams

o Abrams v. United States

§ Court upholds Abrams conviction under the Espionage Act because he is “inciting” rebellion via leaflets supporting the Russian Revolution

· Not explicitly anti-German as much as it was pro-Russian

§ Holmes and Brandeis dissent

· “…the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent”

o Imminence is now

f the group that actually believes in the action being advocated

o “Frees Whitney”

· Noto v. United States

o Responsible for your own behavior

· Lamont v. Postmaster General

o Seeking some kind of First Amendment protection as a “right”

· Brandenburg test

o Brandenburg v. Ohio

§ “…the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

§ Imminent danger as opposed to “could someday” or “bad tendency”

§ Standard going forward – supersedes “Clear and Present Danger”

· “Fighting Words”

o Things that are said that are so close to “breaching the peace” that the government must step in

o Cantwell v. Connecticut

§ Cantwell as a Jehovah’s Witness that was arrested for disturbing the peace on a street-corner for extolling his religion

§ Just because people do not like what he is saying and that they want to hit him, it is not fighting words

§ Speech has to be directed at someone in particular

o Chaplinsky v. New Hampshire

§ Chaplinsky calls the City Marshal a “fascist”

§ Court finds that “fascist” is so obscene and offensive that one would fight

· Takes place during World War II

§ Language

· “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace…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 and morality.”

o Inflicting injury

§ Racial/Cultural Epitaph

o Immediate breach

o Cohen v. California

§ Cohen wore a shirt that said “Fuck the Draft” in a municipal courthouse

§ Court reverses his conviction that that shirt would provoke a forseeable result

§ Be fundamentally afraid of the government’s regulation

§ This is an exercise of the foundations in democracy

§ Majority opinion