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First Amendment
Temple University School of Law
Caine, Burton

Fall 2009

KONIGSBERG v. STATE BAR: Words themselves can do no harm w/o communication to another.

-words can have no effect other than emotional harm, if the other person has no capacity to respond behaviorally to the words.

i.e. If a hot-tempered person, is behind bars/is restrained, then no harm (other than emotional) may occur upon communication of the uttered words.



SCHENCK v. UNITED STATES: Danger is dependent on the context & circumstances under which the words are uttered & the nature of the hearer. -Distinguish b/t innocent utterances & intent to cause harm. i.e. Use example of a person falsely uttering “fire” in a movie theater & causing a panic.

Clear & Present danger test: whether the words used are used in such circumstances & are of such a nature as to create a clear & present danger that they will bring about the substantive evils that Congress has a right to prevent.


THE ABRAMS CASE: Unlawful to produce papers against the prosecution of Germany.

Both Majority & Dissenter apply the clear & present danger test. -Holmes’ dissent viewed a few publications & few people distributing them as unlikely to present a danger to the war effort -places a higher value on the expression than the court did in this case. -CT places a higher value on the National interest/security than Holmes is.

1st Amendment, Benefits:

1. Natural right to free speech

2. Right of free expression is a characteristic of a free person

3. Freedom to communicate facilitates the development of ideas

4. Capacity to communicate enables a person to develop to his/her faculties w/o inhibition of censorship.

-one’s faculties can be seen as a means to an end

-should be an objective of the self

5. Effect right of free expression has on the right of the individual v. the right of the state -part of the power that we retain in a democracy.

6. Power to speak is an inhibitor on the power of the government, i.e., the public opinion poll

7. Sense & fact of freedom & sense of power that humans feel they have. Feel more powerful by virtue of possessing the right to free expression. Enables Democracy to function.

Downside to 1st Amendment:

1. Encourages disorder

2. Inhibits governments ability to get things done, leads to inefficiency

3. Produces irrational fears & beliefs

4. Leads to behavioral responses, leads to excess of behavior -can lead to uncontrolled conduct

5. Can lead to personal insecurity

6. Can cause emotional pain

7. If clear & present danger test fails, then harm may result

Assessment of when the risk to the state’s interest is sufficient to justify restricting the right of the freedom. Usually a factual determination, based on the potential psychological impact on the individual.


GITLOW v. NY: -Gitlow wrote & taught. -The “clear & present danger test” was not applied. -Only scrutiny applied was the power of the state to do what it did. -Allows state determination to apply the law of the land. -General advocacy w/o specificity of time, place, urgency, & duty, can be prohibited & is not protected by the 1st Amendment.

-J. SANFORD: by enacting the present statute the state has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence & unlawful means, are so inimical to the general welfare & involve such danger of substantive evil that they may be penalized in the exercise of its police power. -We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the state unwarrantably infringing the freedom of speech or press; and we must & do sustain its constitutionality. -involved the expression of individual ideas.

-J. HOLMES dissent: His application of the “clear & present danger” test. If applied, he doesn’t believe that there was any clear & present danger.

RULE: W/the exception of moral concerns (or behavior resulting from speech), the state can never prohibit speech.

WHITNEY v. CALIFORNIA: -Whitney was convicted for organizing & assist in organizing & was, is & knowingly became a member of an organization to advocate, teach, aid & abet criminal syndicalism. -A state may punish those who abuse by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations or organized government & threaten its overthrow by unlawful means, is not open to question.

STATUTE: (part in question) “Any person who…organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid & abet criminal syndicalism; is guilty of a felony.”

-CT upheld her conviction. Involved the association of a group. -She never asserted her constitutional rights b/c she never asserted that no clear & present danger existed.

FISKE v. KANSAS: HELD that the conviction of the D, w/o any charge or evidence that the organization in which he secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political changes or revolution. -The Act is an arbitrary & unreasonable exercise of the police power of the State, unwarrantably infringing the liberty of the D in violation of the due process clause of the 14th Amendment. -Procedural due process grounds: the impermissibility of drawing conclusory inferences from inadequate factual bases.

DE JONGE v. OREGON: HELD: right of peaceable assembly is a right cognate to those of free speech & free press & is equally fundamental. Peaceable assembly for lawful discussion can’t be made a crime. Rights of free speech & peaceable assembly are to be preserved as to its purpose & only look to whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. -D couldn’t be convicted for attending the meeting.

HERNDON v. LOWRY: HELD: overturned the conviction b/c the construction & application of the law deprived Herndon of his constitutional rights of free speech & assembly & the law as construed & applied didn’t furnish a reasonably definite & ascertainable standard of guilt.


BRANDENBURG v. OHIO: -The court doesn’t’ mention the phrase “clear & present danger” test.

FOR JESUS: -Statute prohibited any individual and/or entity seeks to engage in 1st amendment activities w/in the Central Terminal Area at LA.

HELD: The resolution is overbroad & facially void. The resolution reaches the universe of expressive activity & prohibits all protected expression. Ban cannot be justified b/c no conceivable governmental interest would justify such an absolute prohibition on speech.


1. Burdens more activities than necessary

a. Must be a substantial concern in reading the whole context of the statute, such as when speech is joined w/conduct.

2. Prohibits or chills protected freedom of expression

a. Ordinance which places discretionary power in administrative official over citizen’s right to speak in public in invalid for overbreadth.

3. General basis for decisions relating to statute as being overbroad.

a. Decision to strike statute is held where stat is so sweeping as to deter citizens from engaging in protected speech or is applied arbitrarily against political dissenters.

i. Legislature is required to use means which are least restrictive of free speech.

ii. Government workers may be compensated for non-political speech.

b. Decision to uphold stat is held where stat is used selectively to punish dissenters & where it will generally not deter protected speech.

VOID FOR VAGUENESS DOCTRINE: 1. No clear notice of what is prohibited a. Stat governing misuse of flag was struck down b/d the legislature had not set clear guidelines for preventing arbitrary & discriminatory enforcement. 2. No ascertainable standards PRIOR RESTRAINT:

PRIOR RESTRAINT: A law/ct order/any kind of enforcement mechanism which obstructs expression prior to publication, prior to an appropriate hearing to determine whether it is protected by the 1ST. Distinguishable from post-publication burdens imposed by the criminal law or civil penalties such as damages or injunction.

LAKEWOOD v. PLAIN DEALER PUBLISING CO.: HELD: Challenged b/c of Prior Restraint & Vagueness. Laws of general application that are not aimed at conduct commonly associated w/expression carry with them little danger of censorship. Standardless ordinance is unconstitutional. Facial challenge is appropriate b/c the standards controlling the Mayor’s discretion must be required. -Ct will not write nonbinding limits into a silent state statute.

1. Vending machines are in the public 2. Sole purpose of the papers/vending machines are to solicit information/speech/expression in the public arena.

HELD: Ordinance was struck b/c of potential for arbitrary application. In a sense, it was also a prior restraint. Vagueness & Too Much Discretion. Application of “fee structure” is dependent