Constitutional Law II Outline

 
Constitutional Law II Larson Fall 2015
 
Part One: Freedom of Speech and Press
 
Text, Theory, and History of the First Amendment
–          Congress shall make no law… abridging the freedom of speech or of the press
o   Congress -> Government
o   Freedom of speech, not speech itself
–          Purpose: to allow criticism of the government, protect liberty, pluralism and transparency, and encouraged the market place of ideas
–          Blackstone Commentaries: freedom of speech means that you cannot be stopped ahead of time from printing something but if you publish something prude or harmful to society, you can be punished after the fact
 
Unprotected and Lesser Protected Categories of Speech
Really falls into two categories: incitement (inciting unlawful or violent conduct) and community values (defamation, privacy, obscenity, fighting words, offensive speech, and commercial speech)
–          Chaplinsky v New Hampshire: foundational 1st A case- certain types of speech based on what they do are outside of the 1st A entirely
–          When speech falls outside of the 1st A, state can prosecute criminally as well as civilly
I.                    Speech that Incites Unlawful or Violent Conduct
a.      Espionage Act of 1917: when the US is at war, whoever shall willfully cause to attempt to cause insubordination, disloyality, mutiny, or refusal of duty, in the military or naval forces of the US, or willfully obstruct recruiting/enlistment, shall be punished by fine
                                                              i.      Amended to Sedition Act of 1918- when the US is at war, whoever shall willfully utter, print, write, or publish any disloyal, profane, or abusive language about govt shall be punished by fine
                                                            ii.      Were laws like the Espionage Act and Sedition Act (and state versions of the statute) valid under the 1st Amendment?
b.      Masses v Patten 1917- rejected blanket interpretation of the Espionage Act. Laws restricting freedom in wartime cannot be overbroad in application.  Hand: congress meant to only prohibit direct advocacy against the recruitment service, cartoons in newspaper won’t make men dissatisfied with war
c.       Schenck v US 1919: Clear and Present Danger Test: 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. It is a question of proximity and degree.
                                                              i.      Holding – during wartime, utterance in tolerable in peacetime can be punished
d.      Abrams v United States 1919: dissent can now be cited as law. Dissent: throwing a leaflet out of a window for general public, not a clear and present danger. “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
e.      Gitlow v New York 1925: although the 1st A applies to states through 14th A, Gitlow’s left wing manifesto was held to be punishable by NY law. On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger.
                                                              i.      Dissent: there was no clear and present danger per Schenck –
1.      no likelihood that the publication would have resulted in overthrow of govt- to follow his writing on would have to read it, understand it, agree, organize and then rally. Long process before any clear advocacy
f.        Whitney v California 1927: J Brandeis concurrence: Clear and Present Danger Test means: 1. There has to be reasonable ground for fear that serious danger will result 2. Danger apprehended is imminent, and 3. Reasonable ground to believe that the danger is evil
                                                              i.      Clear and Present danger  = serious, imminent, and evil
                                                            ii.      Remedy for bad speech is not forced silence, but more speech to show why those ideas are wrong
g.      Smith Act 1940: unlawful to advocate or plan the overthrow of any US govt with force of violence
                                                              i.      Post WWII era where everyone was afraid of communists (mass hysteria)
h.      Dennis v US 1951: leaders of communist party prosecuted for conspiring to violate the Smith Act. Plurality opinion.
                                                              i.      Clear and Present Danger Test -> Degree of Harm x Probability
                                                            ii.      This reverses Gitlow’s core holding
i.        Yates v US 1957: does Smith Act violate 1stA? Court draws distinction between the advocacy and teaching of forcible overthrow as an abstract principle and that of concrete action of forcible overthrow.
                                                              i.      Court recognized that instances of speech that amounted to advocacy of action were far and few between
j.        Scales v United States 1961: Conviction of Chairman of a communist party for violation of Smith Act (advocating for future action) upheld.
                                                              i.      Can punish people for membership in groups with illegal purposes if: 1. D had an active role in group and 2. D was an active member of the group
1.      Not merely a passive, inactive, nominal member
2.      Active role ≠ per se member of group
k.       Brandenburg v Ohio 1969: a state may not forbid or proscribe(ban) advocacy of the use of force or of law violation exception where such advocacy is: 1. Directed to inciting or producing imminent lawless action and 2. Is likely to incite or produce such action [imminent & likely]                                                               i.      #1:not some indefinite time in the future, no opportunity to intervene (ex: stirring of a mob to riot)
                                                            ii.      #2: no likelihood, no prosecution
                                                          iii.      Seems to reject Scales and formally overrules Whitney