Introduction; What is Freedom of Speech?
Absolutist Approach
No law abridging speech à Justice Black loved this
Some speaking isn’t considered “speech” when it is very closely related to “conduct”
Categorical Approach
Certain categories of speech fall outside the realm, so they aren’t protected (fighting words, etc.)
Balancing Approach
Look at the facts, weigh the gov’t need to restrict against the individual’s interest
This approach and the categorical approach are the most popular for judges
History of Protecting Speech
Blackstone said the kingn’t be able to punish before they said something
Zenger
Punished material critical of the gov’t à was laws prohibiting it; however, the jury acquitted him knowing that the law existed à truth became an affirmative defense
Madison’s Am.
He felt that free speech and habeas corpus were the most important freedom protections
Today
Ct. comes down very strongly in favor of protecting free speech
Interest must be huge to abridge it
Why Protect Speech?
Belief that truth will win out over falsehood if both live freely; w/o it, we’d be ignorantvoters
Safety valve à waco’s vote, they won’t resort to violence
Human dignity à allow people to express themselves
Checks and balances w/ the gov’t
Promotes tolerance
From “Bad Tendency” to “Clear and Present Danger”
Schenck v. U.S.
Six cases that reached the S.C. b/c of people encouraging resistance to the war
Espionage Act à Ct. likes to go by the pulse of the country, and this passed easily
P sent out a leaflet which said things like “Assert your rights” and “Do not submit to intimidation”
Gov’t didn’t have to prove any actual effect that the language incited anything
Weigh the threat against the gov’t, and balance it w/ the harms it causes
Here, P’s acts were seen as being a “clear and present danger” to what the gov’t was wanting to support
Debs v. U.S. (seven days after Schenck)
P was running for the Socialist ticket from prison à his speech heavily eluded to him wanting people to dodge the draft
Mass Public Co. v. Patton (Judge Learned Hand)
Hand proposes a “Direct Incietment” test, where you have to urge somebody to commit an act
Abrams v. U.S.
Leaflets were passed out urging strikes to stop production of ammo, etc., and were thrown out a 3rd-story window à little to no effect
Majority upholds the “Bad Tendency” version of the “C and P Danger” Test
But the gov’t has to show a real danger
Protects people who do a poor job, but punishes people who do the same thing, but do it well
Gitlow v. N.Y.
NY law made advocating anarchy a felony
S.C. upholds the conviction, but applies the 1st Am to the states (this is never questioned again)
Dissent says that every idea is an incitement, thus making a violation of the C & P test
Smith Act (1950)
Made it illegal to:
Advocate violent overthrow of the gov’t; form a group w/ this goal; be a member of such a group
Test was to weigh the threat, then discount it by its improbability
S.C. upheld the convictions, saying the Communist party was a worldwide threat in excess of the improbability of the success in the U.S.
Dissent disagreed, saying the improbability was huge in the U.S., even if was less internationally
Modern Test for Subversive Advocacy? Extremist Speech? Speech that facilitates illegal activity?
Brandenburg v. Ohio
Clear and Present Danger Test + Direct Incitement = Brandenburg
Camera guy is at a KKK rally à rally is broadcast, and they get busted for it
Brandenburg test
Speech is intended to:
Produce imminent lawless action
Reasonably likely to achieve the result
Ct. says it isn’t doing either of the above things – but there’s a line for both too, that you need to walk down à intent of the speaker more important than actual words
●———————————————-1—————————1—————————–1——————————-●
Prior restraints Bad tendency C & P danger Intend Liberty 1A
only protected (can be regulated) 1. Proximate Absolute
2. Degree (all political sp)
(Brandenberg)
“Prior Restraints” only
Narrowest definition of 1st Amendment, only cover prior restraints
“Bad Tendency,” no matter how remote
Speech has a tendency to cause bad results
“Clear and Present Danger”
Adds:
· Proximity of causation
· Deg. of danger to the Bad Tendency interpretation
Absolutist – Justice Black
Plain language of 1st Am is unequivocal – no balancing that should be done (can still decide that something isn’t “speech”)
Even under this view, “speaker” can be charged w/ criminal results of the speech
Nuremburg site à publishes names, addresses of abortion doctors (has lines through them when they’re killed, different lines when they’re just injured, etc.)
1st Amendment defense? There is the debate there – is it a direct incitement? Probably not – so it most likely would be insufficient to be violate of free speech
Condoning illegal conduct is protected; advocating illegal conduct, if it is likely to be actually done, is not protected
Rice v. Paladin Enterprises
Book called “Hit Man”
Culpability is based on D’s successful efforts to assist others, by detailing the means necessary to accomplish the crimes
May be based on the mere foreseeability or knowledge that the info will be used for an impermissible purpose
Looks to what the intent of the book is à so a warning on the cover probably wouldn’t protect it
There is a slippery slope argument à what about copycat crimes from movies? HighTimes magazine?
Hess v. Indiana
P was at a rally à police
cret material in there
Brennan
Gov’t can’t stop something which may potentially cause harm
Stewart and White
Press should enlighten people, especially when the Ct. can’t be a check on the Executive’s power
Burger’s dissent (along w/ Harlan, Blackmun, Chief Justice)
Ct. should’ve taken more time in looking at the facts
Here, the President was acting w/o the proper authority à he can only do it when the Constitution allows it à photographs of military operations, code-breaking info, etc. à and this was none of that
U.S. v. Progressive, Inc.
D wanted to publish an article about the H-Bomb; he sent it to the gov’t to check for accuracy, and the gov’t asked he take some things out; he refused à gov’t got an injunction, stopping him
Rule à Article may only be stopped if it risks national security
Until then, it is a balancing test b/w life, liberty, property v. rights to free speech
Ct. said that life and liberty are more important than free speech
Ct. also says that this article may give the wrong people the wrong info
Two sides are given a day to negotiate a compromise
Right to a Fair Trial v. Rights of Free Press
Sheppard v. Maxwell
This is the crazy trial where the papers were allowed into the guy’s home to take pictures, the jury was taken to the home to look around, and the guy was pretty well tried in the papers before the case actually began
Ct. dismissed the charges, and said that the state could retry, but it should be good the 2nd time around
Ways to help?
Change of venue, gag order, injunctions, sequester the jury, seal the names of the jurors
Nebraska Press Association v. Stuart
Judge enjoined the paper from publishing facts about a case in a heavily publicized murder trial
Nebraska S.C. reversed, saying that it wasn’t proper to restrain an entire community
But the S.C. reinstated the trial court’s gag order b/c he was right à too sensitive of facts, too important of a trial
When is a gag order OK?
Nature and extent of the pre-trial news coverage
Whether other measures would be effective to mitigate pre-trial publicity
How effectively a restraining order would operate to prevent the threatened danger
Gentile v. Nevada
Attorney went in front of the camera, pleaded his client’s innocence à his client was aquitt
