First Amendment Outline

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[1] SUBVERSIVE SPEECH & ADVOCACY OF UNLAWFUL ACTION

Old Tests:

· Bad Tendency à Clear and Present Danger
· Subversive speech was NOT protected if it could possibly produce a bad outcome à Subversive speech WAS protected unless the govt could show a real and immediate danger
· Schenk & Debs & Abrams & Gitlow (1919)
· Holmes/Brandeis Dissents (Abrams, Gitlow) – the test should be Clear and Present Danger
· Incitement Test (Judge Learned Hand, Masses Publishing)
· Subversive speech was NOT protected if it was a “trigger to action”… but WAS protected if it was merely a “key to persuasion”

Current Rule: Brandenburg Test

· Subversive speech IS protected UNLESS its purpose is to produce “imminent lawless action” and is likely to actually do so
· “Clear and Present Danger” plus “Incitement”
· Imminent – Speech IS protected if it is aimed at lawless conduct at some indefinite future time
· Hess – “take the streets fucking later” is not imminent
· Direct Threat – Speech IS protected if it is NOT a direct threat or a ratification of violence
· NAACP – told boycott violators “we’ll break your neck”

Schenk – distributed leaflets critical of the war effort to men of draft age

· Conviction upheld

Debs – Socialist’s speech against the war urges crowd “not fit for slavery”

· Conviction upheld

Abrams – anarchist distributed leaflets against sending troops to defend Russia

· Conviction upheld – Holmes’ dissent calls for clear and present danger

Gitlow – Left Wing Manifesto criticizes war and urges general strikes

· Conviction upheld – Holmes’ dissent, govt must show real and immediate danger

Masses – post office refused to deliver “Revolutionary Journal”

· 1st Amendment violated – Learned Hand says govt may prosecute for words that are “triggers to action”, but not words that are “keys to persuasion”
· Incitement Test

Brandenburg – KKK leader gave speech “might have some revengeance taken”

· Conviction reversed – 1st allows punishment only of subversive advocacy calculate to produce “imminent lawless action” and which is likely to produce such action
· Combines Incitement Test and Clear & Present Danger Test

Paladin Press – published “how-to” guide for hitmen

· Brandenburg did NOT bar a jury from imposing civil liability of aiding and abetting in murder
· Imminence NOT required in the type of speech involved here

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[2] FACIAL CHALLENGES

As Applied

· the law is okay, but the way it’s used affects my speech in a way that should be protected (law valid, but you win)

Facial Challenge

· my particular speech may not be protected by the 1st Amendment, but the law under which I’m being punished reaches too much speech which is protected and therefore must be struck down (law invalid, and therefore you win)
· Overly Broad Law
· Doctrine of Substantial Overbreadth – a law is facially invalid if the overbreadth of the statute is real and substantial, as judged in relation to the statute’s plainly legitimate sweep (Broadrick)
· i.e. – LAX banned all “First Amendment activities” in the airport concourse = substantially overbroad (Jews for Jesus)
· A law that is overly broad can be cured through a narrowing interpretation by a state court
· Overly Vague Law
· Doctrine of Vagueness – a law is facially invalid if persons of common intelligence must necessarily guess at its meaning and differ as to its application
· i.e. – law prohibits “annoying” conduct on