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Constitutional Law II: Freedom of Speech
SUNY Buffalo Law School
Kannar, George

LAW 612: Constitutional Law 2
Prof. George Kannar
Class Notes
5 Feb 2009
First Amendment History, Jurisprudence, and Doctrine
18th Century Context: Freedom of Press was political argument more so than it has been during the development of 1st Amendment Doctrine,
Is it once again becoming political?
Fundamentals of Freedom: Speech has been held at a higher value than say racial justice, but the recurrent question is why? And by what standard do we define and evaluate claims of free speech?
Why is speech more important than promoting other social ills? What makes it unique/not unique?
Justice Black: 1st Amendment is absoluteà no law means no law
But do these protections extend to “Give me all your money or I’ll shoot?” Is free speech a defense to criminal charges for robbery?
These are examples of well understood limitations on speech, even by the absolutists
One way of looking at these examples is that the criminal charges are not for the speech, but for the results of the speech.
1st Amendment History: First Amendment context have to be taken from history of American Colonies and American Revolution
Prior Restraints: If these is one pervasive assumption in 1st Amendment doctrine, it is that if the Amendment is intended to limit any actions at all, it is intended to prevent prior government restraint on speech
In other words this is an injunction against licensing restriction before you could speak or print. These were seen as evil
Seditious Libel: In colonial context, saying bad things about the sovereign or government were considered criminal
This was another area of concern where the colonies began to diverge from Britain in terms of the interpreting of the law
In colonies, main theory that developed was that truth of the matters was a defense in prosecutions for Seditious libel à Can’t be prosecuted for saying things that were true
This was not the case in Brittan where the greater the truth, the greater the libel
NOTE: Same Congress that passed 1st Amendment was the same congress that passed Alien and Sedition acts, which is historically seen as the biggest attack on free speech, which was never thrown out in court but instead expired. 
Shows that framers were realists more than they were idealists
Debate comes up today in Establishment clause debate
Subsequent History: After Alien and Sedition act, not much happens on the judicial side that deals with Free Speech at a Constitutional level until WWI. During that time:
Abolitionists jailed for speech
Habeas Corpus suspended and Free Speech bridges during Civil War by Abraham Lincoln
Labor movements were attacked for their speech
1st Amendment Theory: Canonical list that explains or justifies the preferred position that the Amendment enjoys in society
Truth: a system of free expression is important to society in the interest of advancing the truth for protection of the marketplace of ideas (John Stuart Mill, John Milton, Oliver W. Holmes)
Analogy came out of 19th Century deference to economic market place where non regulation produced best outcome
Free Speech was therefore a good engine for producing good ideas to compete with each other, and therefore should not be regulated
Theory Limitations: markets fail and the concern occurs when the ideas that are advocated are not true or justified and they are advanced only by shear market volume
What comes out of this competition may not be the best ideas.
Great faith in pure market is needed to justify this analogy
Self Government: if the country is going to have a democratic government, it is important to the process that ideas about issues and policy emerge from a populous that is educated and informed (Alexander Meiklejohn, Robert Borjk)
Free ideas are therefore essential to democratic self government
More practical approach
Democracy works best when people are engaged, and the best way to be engaged is through free expression of ideas creating liberal participation
Mieklejohn’s list of results:
Improves public policy
Prevents government from entrenching itself
Knowing that government officials will constantly be subjected to criticism will serve as a moderating influence on their behavior
Safety valve for society, culture develops where people don’t feel so oppressed by government that they are tempted to violence or other physical modes of protection
Theory Limitations: People might not know what’s best for them, that the government may be better advocates for what’s actually best for them.
People are still idiots and might not know what’s best in the long run
There’s an assumption that the level of discourse will be high, which is based on faith not on fact because people might not be educated or understand the good arguments from the bad arguments
Also, how should speech be treaded that is not about politics? Does this theory protect science or the arts?
Core speech: productive ideas advocated by this model, most protected speech under this theory
Autonomy: that speech is one of the rights associated with liberty that people are endowed with by the creator
Philosophical or faith based approach that is not limited by productive or instrumental speech
Theory Limitations: All kinds of people out there, and there are pretty reasonable ideas out there on speech limitations that are more practical than philosophical
Negative Theories: The government cannot be trusted on getting regulations on speech right
The better way to advance society is for there not to be any regulations
Suppressing some or all speech is to get the government involved with a values judgment that they could easily mess up or corrupt based on their bias or desire to stay in power
Eclectic Theories: All of these concepts and theories coexist with one another and are intertwined throughout jurisprudence
From time to time, one theory is advanced more than others, but in general all the theories exist together
1st Amendment Jurisprudence: methods of applying theories in actual cases and jurisprudence
Justifying special protection for speech: One view is that speech is subject to and absolute protection as advocated by those like Justice Black
No law means no law
One limitation is that what constitutes speech may be narrow in scope
Absolute v. balancing: On one hand above, there is an absolute view of free speech; on the other hand, balancing requirements assumes that the scope of free speech is broad, but each situation of suppression needs evaluated on a case by case basis based on the specific situation and values at the time.
Often arises in context of National Security protections: are the ideas and speech of one small person more important than the protecting the security or morals of society?
Limitation is that balancing will inevitably undervalue the speech
Categorization v. balancing: One category of speech is more protected that others, i.e. core political speech
Other categories could be protected to a varying degree, i.e. difference between arts, commercial speech, and sexually suggestive speech
Theories are constructed for each type of speech with particular rules for each category
Two general kinds of Speech Regulations:
Content base regulations: speech regulation based specifically on the actual speech or speech like conduct
Singled out because of the message of your speech
Content of speech is important for these regulations
Content neutral regulations: based not on the context of the speech, but the time, place, or activities
Situations such as “Quiet, Hospital Zone” where anyone who is speaking will be limited
Incident to Violence, Fighting Words, and Hostile Audiences
Incitement to Violence: Emerges in early 20th Century during World War I era and opposition to both the draft and the implementation of the Espionage Act of 1917. The act made it a crime to:
To convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies, punishable by death or by imprisonment for not more than 30 years
To convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States, punishable by a maximum $10,000 fine and 20 years in prison.
Schenck v. United States, S. Ct. of the U.S., 249 U.S. 47 (1919)
During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged “Do not submit to intimidation” but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment.
The issue in the case is whether Schenck’s actions (words, expression) are protected by the free speech clause of the First Amendment.
There are aspects of a seditious libel argument in the government’s case against him. 
Schenck challenged these notions by evoking the 1st Amendment to protect his speech
Holmes, speaking for a unanimous Court, concluded that Schenck is not protected by the 1st Amendment in this situation.
The character of every act depends on the circumstances.
“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.”
This is the test the case presents to
During wartime, utterances tolerable in peacetime can be punished, as was the case in this situation.
NOTE: Holmes notes that Free Speech was not simply a freedom from prior restraints expanding his own view of the doctrine and permitting Schenck to use it as a defense. 
However, in this case, Schenck’s speech was limited by clear and present damage
Frohwerk v. United States, S. Ct. of the U.S., 248 U.S. 204 (1919)
Follow up case to Schenck: A newspaperman wrote a series of editorials denouncing U.S. involvement in foreign wars. He was convicted under the newly-passed Espionage Act of 1917 for, among other things, “conspiracy to obstruct recruiting.”
The issue in the case is whether or not the Government violated Frowerk First Amendment rights by charging him under the espionage act.
The Court held that “[T]he First Amendment . . . was not intended to give immunity for every possible use of language.”
The Constitution does not protect speech that opposes war efforts.
Opinion also notable because burden was for defendant to show that his actions would not incite rebellion and violated the Clear and Present Danger doctrine
Debs v. United States, 249 U.S. 211 (1919)
Eugene V. Debs was an American labor and political leader and five-time Socialist Party of America candidate for the American Presidency. On June 16,1918 Debs made an anti-war speech in Canton, Ohio, protesting US involvement in World War I, and he was subsequently arrested under the Sedition Act of 1918. He was convicted and sentenced to serve ten years in prison and disenfranchised for life. The case against Debs was presented in a document entitled Anti-War Proclamation and Program showing that Debs’s original intent was to openly protest against the war. The argument of the Federal Government was that Debs was attempting to arouse mutiny and treason by preventing the drafting of soldiers into the United States Army. This sort of sentiment and speech was outlawed in United States with the Espionage Act of June 15, 1917. The argument in favor of Debs was that he was entitled to the rights of free speech provided for under the first amendment of the Bill of Rights.
The Court examined several statements Debs had made regarding the war. While Debs had carefully guarded his speeches in an attempt to comply with the Espionage Act, the Court found he had still shown the “intention and effect of obstructing the draft and recruitment for the war.”
Among other things, the Court cited Debs’s praise for those imprisoned for obstructing the draft.
Opinion also noted that Debs had not been able to say all that he wanted to say because of the so called “Chilling effect”
In his opinion, Justice Oliver Wendell Holmes, Jr. stated that little attention was needed since Debs’s case was essentially the same as Schenck v. United States, where the Court upheld a similar conviction.
The Supreme Court decided against Debs, and maintained the power of the Espionage Act, sentencing Debs to ten years imprisonment, and a loss of his citizenship.
The standard of the Clear and Present Danger test was the purpose of the speech to prove Deb’s intent

ype of speech that incited certain acts. 
Holmes’s dissent: This is not a different case from those discussed with the Clear and Present Danger.
This case is a case of teaching an idea, not advocating an action. Since ever idea is an incitement, there is no purpose to ban it since it doesn’t call for action
No proof had been presented that a Clear and Present Danger had been shown, but instead that a categorical banning of certain speech had occurred.
The mere passage of an act that prohibited an idea was a violation of Free Speech
Whitney v. California, S. Ct. of the U.S., 274 U.S. 357 (1927)
Charlotte Anita Whitney, a member of the Communist Labor Party of California, was prosecuted under that state’s Criminal Syndicalism Act. The Act prohibited advocating, teaching, or aiding the commission of a crime, including “terrorism as a means of accomplishing a change in industrial ownership. . .or effecting any political change.”
The issue in the case is whether the Criminal Syndicalism Act violated the First or Fourteenth Amendments.
What was missing in this law was the intent to incite violence that resulted in a Clear and Present danger or the State
Defendant had been prosecuted for being a member of this organization, but did not directly advocate these ideas. Therefore she was being prosecuted of advocating ideas that she didn’t advocate.
The Court sustained Whitney’s conviction and held that the Act did not violate the Constitution.
The Court found that the Act violated neither the Due Process Clause nor the Equal Protection Clause, and that freedom of speech guaranteed by the First Amendment was not an absolute right.
The Court argued “that a State . . . may punish those who abuse this freedom by utterances . . . tending to . . . endanger the foundations of organized government and threaten its overthrow by unlawful means” and was not open to question.
The decision is most notable for the concurring opinion written by Justice Brandeis, in which he argued that only clear, present, and imminent threats of “serious evils” could justify suppression of speech.
NOTE: This is a concurrence because the lawyers had failed to raise these issues on appeal
The notion of expression of ideas through Free Speech is important for the sustainability of the Free State.
In order to suppress, there must be reasonable grounds that the evil is serious and imminent.
“Only an emergency justifies oppression” 
Government must prove that these exist, even if the statute is valid on its face. This was not done in this case
Brandeis uses a much more philosophical view by evoking beliefs of the founders for justifying First Amendment rights
Smith Act (18 U.S.C. § 2385) of 1940: Federal Statute that makes it a criminal offense for anyone to:
“Knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.”
Dennis v. United States, S. Ct. of the U.S., 341 U.S. 494 (1951)
In 1948, the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. After a massive investigation and trial, party leaders were found guilty and lower courts upheld the conviction.
The issue in the case is whether the Smith Act’s restrictions on speech violate the First Amendment.
The Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not “inherently” violate the First Amendment.
In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a “clear and present danger” that threatened the government.
Given the gravity of the consequences of an attempted putsch, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech.
Holmes and Brandies, while having noble aspirations, never faced a threat like communism, which was the one of the greatest evils known to man.
Frankfurter Concurrence (with a new theory): Uses balancing test to justify government’s actions
Although this is a violation of Free Speech, the courts are ill equipped to judge the actions of the Federal Government who have a more complete picture of the actual threat against to the U.S. therefore the Courts should defer to them in this case.
Absolute view of free speech is not appropriate in this situation
Jackson Concurrence: Clear and Present danger shouldn’t apply here because the communist should be stopped before they are set to act.
Black dissent: There were no overt acts direct at the U.S. and no attempts; therefore, the act just simply discriminates against having an idea.
Ideas are in books that in libraries, and we are prosecuting people for having those ideas, which is akin to burning books.