Constitutional Law II Outline

Constitutional Law 2 (2009)
Professor Larson
UC Davis School of Law

1. Overview
1A. The first amendment applies to the entire federal gov even though it just says congress
1B. After the civil war the 14th amendment was adopted & then the first amendment applied to states as well (all the values of the bill of rights apply to local gov & states as well- b/c states didn’t look so good anymore)
1C. the First amendment says “Congress shall make no law abridging freedom of speech” & this is VERY DIFF than just speech- congress restricts speech all the time, there are many things you cant say:
1C1. “fire in a crowded theater”
1C2. Lying to a cop
1C3. Disparage senior military officer
1C4. Threat
1C5. Slander (spoken) & Libel (written)
1C6. Product liability for bad instructions on a chainsaw
1C7. Using someone’s music routine
1C8. Conspiracy, solicitation, perjury, forgery
1D. There is a diff bt “words as a way of doing something” (like all of the above) & “words as a way of saying something” (conveying ideas) & this explains a lot of speech doesn’t raise sig first amendment problems
2. Governmental Control of the Content of Expression (Chap 13)
2A. historical intro- the status of free speech up to the 1920s
2A1. Potential theories for why we have freedom of speech
2A1A. to get closer to the truth (but if you say this certain things become hard to defend like Romance Novels & Network TV)
2A1B. Suppression is the hallmark of tyranny (these are the least attractive forms of government on earth)
2A1C. You can’t have democracy without functioning free speech
2A1D. Autonomy (value in & of itself) – (sig aspects of self expression that don’t contribute to the marketplace of ideas should still be protected)
2A1E. Life is more interesting when we have different view points
2A2. The SC has never embraced one of these theories to the exclusion of others!! (we built first amendment doctrine backwards- we just have cases that result in sensible outcomes)- it’s the product of experience rather than philosophical reason … thus, we look for answers elsewhere like history
2A3. The English Background
2A3A. restrictions on speech
2A3A1. Constructive treason- speaking hostile words against the gov
2A3A2. Seditious libel- the offense of criticizing the gov/bringing the gov into disrepute
2A3A2A. this was a bad crime to be charged with bc the court decided if words were seditious & the only Q to the jury was whether you said/published the words (truth was NOT a defense, it was actually worse cuz then you made the gov look really bad)
2A3A2B. However in 1792 Fox’s Libel Act made it so that the JURY decided whether speech was seditious (this made it a less powerful tool for restricting speech)
2A3A3. Licensing & monopolies- this was another way that speech was restricted by the gov
2A3B. Movement towards protection of speech (in England)
2A3B1. English Bill of Rights- adopted in 1688 & only said that there was free speech protection for members of parliament (this is the only thing that came over to the USA)
2A3B2. Blackstone- in England he published for the 1st time a consolidation of the common law into something readable & understandable- was treated as the truth & was the most influential publication hist of American law, this book was published 10 yrs before the American Rev)- all it said there could be NO PRIOR RESTRAINTS
2A3B2A. liberty in the press means u cannot be stopped from publishing something ahead of time, we have to let you print it but if its harmful or dangerous then you can be subject to punishment
2A4. The American Background
2A4A. Zenger v. USA: (1734) this case was the first glimmer of protection for free speech, Zenger was a printer published articles critical of the NY colony the primary target was the governor- he had Zenger prosecuted- Andrew Hamilton (a famous atty) he argued that truth should be defense to the crime of seditious libel & he won (small with little effect in the future)
2A4B. 1776 overthrow of British rule & we have the opp to write our gov doc from scratch but only states included freedom of speech in their bill of rights (in practice ppl could say a lot but there was not actual government protection for speech)
2A4C. Our const in 1787 had NO mention for protection of speech/or freedom of speech …. free speech included BUT this was only for members of Congress & Senate (Federalists had a problem with this)
2A4D. 1791 First Amendments adopted BUT not clear if this was just supposed to follow Blackstone & CL rule of no prior restraints or if it was supposed to be more protective
2A4E. 1798 (const in effect for 9 yrs) John Adams is pres & country divided political parties emerge & they are seen as a threat (federalists-John Adams (Pres) & Republicans Jefferson (VP))
2A4E1. Adams passed the Sedition Act & said it’s a fed crime to publish false, scandalous or malicious writing against the gov (they did this to shut up the Reps)- Adams said truth is defense, you could not be tried if its by negligence & the JURY decides if its seditious
2A4E1A. they prosecute ppl under this
2A4E1B. Jefferson & Madison write the Virginia & Kentucky Resolutions & say that the act was unconstitutional, then Jefferson was elected Pres, he pardoned ppl & did not renew the act
2A4E1B1. The funny thing is that Jefferson just thought states should be allowed to prosecute seditious libel- he wrote to the gov & said in his inaugural address that the states should do more prosecution (he was a douche too)

2A4E1C. Patterson v. Colorado- by the beginning of the 20th cent nothing had changed! It was still no prior restraints that’s all the 1st amendment meant
2A4F. IN practice we had free standing press, WW1 marked the first time it was felt there was a reason to squash freedom of speech (the Huge Russian Monarchy was overturn by Communists & it was feared anarchy would take over the world)
2A4F1. In Iowa you were not allowed to speak any lang other than eng over the phone (this b/c they hated the Germans)
2A4G. After WW1 we got leg like the Espionage Act 1917 (it was a crime when the country was at war to “willfully make or convey false reports or statement with the intent to interfere with the prosecution of the war or to promote the success of enemies, or willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military… or obstruct recruitment or enlistment” & then there was the 1918 Amendment so it was called the Sedition Act which made it unlawful to utter lang that brought the US gov into contempt or scor