Constitutional Law II: First Amendment
Fall 2010
Closius
Part I
Why Government Restrict Speech – Unprotected and Less protected Expression:
Incitement to violence
Fighting Words and Hostile audiences
Injury to Reputation and Sensibility
Sexual Explicit Expression
Commercial Speech
Goals of Free Speech:
1. Advancing knowledge and truth in the marketplace of ideas
2. Facilitating representative democracy and self-government
3. Promoting individual autonomy, self-expression and self-fulfillment.
Not covered by Free Speech and Criminal:
1. Bribery
2. Perjury
3. Counseling to murder
Categories which are debated or held outside First Amendment Protection: (UNPROTECTED)
1. Incitement,
2. Fighting words
3. Libel
4. Obscenity
5. Child pornography
èFact Specific
èFirst Amendment only applies to government entities; not individuals (Barfight- A private person cannot violate your first amendment rights…could be a tort, or an assault, But only the government can take away your 1st amendment rights.)
Common Law:
Kings reaction to Printing Press —- License (Nobody can publish unless I give them a license…if not, “off with your head”)
èBeginnings of Free Speech: “No to license” Concept (Blackstone, 17th into 19th century)
o (Against Prior Restraint) – Cannot stop someone from saying it before they say it!
o Also remember, that most people were Okay with the fact that once it was said, often heads fell anyway.
o Seditious Libel – basically any criticism of the government (“casting the government into public repute”…making the government look bad!)
èSo original ideas:
1. Don’t retrain them in advance
2. Don’t require a license
Sedition Act: Passed by Federalist in order to keep the Republicans (Jefferson) from critizing the current govenrment (1798).
o Act expired.
o Not much for 150 years.
World War I and onward: Criticism of government and war
o 1950s: Movies, music, as often banned by the government.
First Amendment Thoery & Liberal View of 1st Amendment:
Far left, Mills, Meiklejohn, Emerson : Influential in new philosophical basis for modern free speech freedoms.
Example: phrases like “marketplace of ideas,” and the Judges soon quote them.
Mills: If people can say what they want, truth eventually comes out, even if what you say is not correct/hateful.
Meiklejohn: Political or “Civic” speech is the most important level of free speech, and that not all speech is equal. The real point of free speech is public policy debate! Unfettered political debate (Afghanistan v. A-rod’s social life)
Emerson: “meiklejohn doesn’t go far enough…” It is too narrow to say that it only applies to public speech. Rather, art, music, movies, should all be protected in some form. Brings the topic of free speech out of this political civic world and pushes for art and all those things.
Post Modernist: Hate Speech, adoption of Statutes saying things like “illegal to…”
1st Amendment is frequently seen on a spectrum…as you move toward Conduct/Action your losing your 1st amendment rights!
Expression————– to————- Conduct/Action
(“we should get out of Iraq”) ————— (I think we should all join in Jihad, come here and ill show you…)
1960’s: Categorization (certain types of speech that were singled out as “outside 1st amendment protection…)
a. Libel
b. Obscenity
c. Insurrection
d. Economic
Modern: Now only b) and d) are there as categories…
Obscenity: Not protected by 1st amendment, but the definition of what is “obscene” IS changing. (music lyrics)
èMiller test:
o Ex. Pornography does not fit the Miller test, as long as it has a redeeming social value.
How much protection does it get? Even IF its protected, that doesn’t end the inquiry…if there is a compelling government purpose…everything can be banned.
èWhat is the most frequent purpose being justified? NATIONAL SECURITY
Symbolic Speech: Falls in the spectrum where an action is said to be an expression? (Burning the Flag?)
Incitement to violence
Fighting Words and Hostile audiences
Injury to Reputation and Sensibility
Sexual Explicit Expression
Commercial Speech
Incitement to Violence
Incitement to Violence (exhortations to overthrow the govt.; genocidal or jihadist speech)
o Must not make yourself a nuisance to others with your speech
o Opinion v. Instigation.
Clear and Present Danger test:
Schenck v. United States: Espionage Act (Law) passed banning: 1) Persons who make false reports or statements with intent to interfere with success of military; 2) Persons who “attempt to cause” insubordination; 3) “Obstructing recruitment of enlistment
Defendant guilty of:
a. Violation of causing insub
:
1. Intent (subjective)
o Its not whether he/she advocated violence…she/he did…its whether its 2.
2. “Imminent” (Imminence)
o Overruled “bad tendency” test from Shenck
èWhat is Likely to Actually Happen in the Audience (objective-reasonability test)
o If its possible and likely, you may be jailed.
o You have to “Urge” them to action
Examples of new Brandenburg Test:
Hess v. Indiana : we’ll take the fucking street later (or again) – was not likely to produce “imminent” disorder, thus were protected, because “later,” or “again” is a moderate statement, that amounted to action as some indefinite time period.
NAACP v. Claiborne Hardware: Man’s speech that “if you go buy things from these racist stores , necks will be broken,” could not be liable for disorder because the action occurred weeks after the speech was given.
èBig question isn’t whether the people who committed the crime are in the wrong, it how far back can you go to the people who organized them
Discussion
Advocacy
—————-
Modern Law Separation —
Incitement
Conduct
èAlso remember: Supreme Court gets to view these issues years after they happen, where the trial court often sees the violence and knows more is to come. (Ex. Supreme Ct. can actually see whether or not this speech incited)
Fighting Words and Hostile Audiences
“Fighting Word” & Hostile Audiences- 2nd category when you can be punished for what you say (1st set is clear and present danger words)
èHere the violence is directed against the speaker rather than undertaken in sympathy with the speaker’s cause.
èTypical claim is audience is so outraged they resorted to violence.
State is interested in:
o Assuring Order
o Avoiding Violence
Cohen: “those personally abusive epitaphs which, when addressed to the ordinary citizen, are inherently likely to provoke violent reaction.
