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First Amendment
University of Illinois School of Law
Kitrosser, Heidi

Mill: MOI theory
Major justifications include: suppressed idea might be true (and truth may not necessarily prevail over persecution),
Mental training,
If suppressed opinion is false – letting it out better illuminates the truth (should know opponents argument as least as well as yours) – refers to “deep slumber of decided opinion”
Plus most opinions neither fully true or fully false
Possible problems in theory:
No ev. To suggest that truth wins out;
Inequality could skew the marketplace;
For example, flooding of marketplace w/ money
Violent video game protection:
Even “false ideas” deserve protection
Even if video games don’t fall within the realm of Mill’s concern there’s still basis to fear unfair govt enforcement (see Mill’s discussion of inevitable enforcement problems in targeting indelicate manner of speech)
Alternatively even Mill would allow suppression for clear & direct harm
Could quibble with whether this falls within the realm of what Mill is concerned about; in particular could suggest Mill’s concerned about arguments over facts & opinions, not visceral experiences
Ind. Self realization – encompasses the other theories
He says that it follows from the nature of a democratic govt – the ultimate goal is self-realization, based on ideas of human dignity
Self-realization has intrinsic & instrumental aspects
Criticisms: how helpful? Allow for any demarcation?  Ultimately leaves lots of balancing discretion to judges.
Might underplay other social values – consider Delgado / Stefancic article
Violent video games: let minors take in whatever they value to grow in whatever way they think worthwhile
Criticism of protection: the video games might themselves impact the listener in a way that defeats self realization
MEIKLEJOHN: self-government theory … free speech mean to facilitate self-government – (line drawing? Note that he would protect obscenity)
Implications being that closer connection to self-government more likely for speech to be protected
Criticisms?: Meiklejohn may push the absolute nature of protection too far … also seems counterintuitive … if govt were minimal … there’d be almost no protected speech
Delgado/Stefancic type criticism … for example, much hate speech, etc., political in nature —
Violent video games:
Protection of that which helps us to become better governors including literature, arts … can’t draw line between art/ literature
Criticism of protecting video games:
Can detach from self-government relationship
Boils down to government fallibility .. that’s the only common thread in the other free speech theories that makes sense … also relates to common thread of line between individual & govt.
Criticism: cements status quo, keeps MOI skewed… if people who make up govt are fallible then speakers are equally fallible ..
for protecting violent video games:
follows naturally from fallibility
against protection:
schauer’s points mostly directed at expressions of opinion or truth, falsehood
Free Speech Theories
Aspects of Doctrine:
Can be broken down roughly into two areas:
(1) Speech Categories:
fully protected; unprotected; less protected
(2) For fully protected speech: rules for content-based regs. & for content-neutral regs.
Re. Aspect #2 (categorization)
We begin the semester with the unprotected speech categories
We start today with INCITEMENT
Espionage Act of 1917
“Whoever, when the [U.S.] is at war . . . shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the [U.S.] . . . or shall willfully obstruct the recruiting or enlistment service of the [U.S.], to the injury of the service or of the [U.S.], shall be punished by [fine or imprisonment].
Schenck (1919):
At issue was law as applied to Shenck for disseminating pamphlets encouraging drafted men to resist the draft
Holmes articulates the notion that speech’s protection hinges on whether it poses, and is intended to pose a clear and present danger of some evil that the government may suppress.
In this case he says that given the wartime context, the nature of the statements at issue that such a danger was presented and the 1st amendment doesn’t protect Schenck from prosecution
How to justify under free speech theory?
All of the theories leave room for balancing against harms – here there’s a public safety issue
 Could argue that timing is key – if there’s not enough time for the MOI to cure ills then the govt can step in and stop the speech
Note the connection also to the speech – conduct distinction … at some point is speech so close to conduct as to become unprotected?
Debs (1919):
•              made speech short distance from a prison where he had visited three socialists imprisoned for recruitment obstruction
•              1200 listeners in audience
 In favor of this posing a C&P danger:
•              Very significant that Debs is so influential and well known
•              Also look at nature of speech – he explicitly praises draft obstructers, message is absolutely clear
•              Could add to that innuendo from his pointing out that he can’t say all that he really means to say
Against this being a C&P danger:
•              We want to be careful in how broadly we interpret a C&P danger.  We don’t want to allow courts to fill in too many gaps – that is, unless the speaker is explicit as to what they intend to cause and what the evil is that they’re encouraging we should be reluctant to let courts read too much into things.
•              If we allow courts to read between the lines and punish accordingly we could be suppressing important speech in the MOI
•              Also a chilling effect concern – if punishment is so broad then people may self-censor
•              Also could point to close relationship between speech harms and speech values in the incitement context
Note also relationship to speech / conduct distinction
Some additional food for thought …
•              Suppose that Debs were not well known at all, not a socialist party leader, a relatively private citizen … should that change the calculus?  How so?
•              What if Debs were talking to an audience solely of drafted or draft eligible men?  Would / should that change the calculus?
“It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in [limiting] the expression of opinion . . . .”
“… nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger …  Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. . . .”
“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
                That at any rate is the theory of our Constitution.  It is an experiment . . . .”
“Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception [to free speech] . . . Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here . . . .”
Key review points about incitement doctrine from Schenk thru Abrams:
What places something into the unprotected category of incitement?  E.g., where to draw the line between speech & violent action?
1919 cases: famous C & P danger test … Key disputes re. test are of application.  Epitomized by Holmes’s “switch” from Schenck (19

Those words that can reasonably be expected to provoke an immediate violent response / retaliation from another person.
Court typically says this entails a face to face directed provocation
Also – note the absence of an intent element
Court also clarified in subsequent cases that context matters – how can you expect that particular group of listeners will respond based on their nature / training (are they cops? Are they democratic or republican party faithful?  Etc.)
 Hypo.  P. 200(e)(1)
Argument that it’s NOT fighting words:
Not face-to-face
Not even clear whether this is really directed to the widow
If directed at the husband by definition can’t be provoking b/c the husband is not alive
Could underscore with free speech theory concerns such as those mentioned in Johnson – a fine line between vituperative, upsetting valuable speech and that which is offensive
Could assure court that this could still be closely confined category – by definition letters are directed communications, don’t have fear about punishing generally directed speech
Could also argue that without such extension of the doctrine you’ll create a huge loophole not just with letter-writing but with e-mails, text messages, cell phone calls, through which people can evade FW doctrine
Also could argue speech value clearly limited if even existent here b/c this is not generally heard speech – just a private communication – no larger value in terms of public debate
Must intend to put a listener in fear of, and must convey a message that WOULD put a reasonable listener in fear of, some sort of bodily harm or death or other grave danger
Need not intend actually to carry out threat (need not even be able to do so), so long as you intend to create fear that you will do so and so long as such fear would be reasonable
What is state trying to punish?  Consistent with free speech theory?
Paralyzing effect of threats, could actually help cut off debate
Could cause broader chaos by creating defensive even violent actions
Concerns about threats doctrine:
Could effectively punish unorthodox speech by defining threats so broadly as to allow that which is shocking to be punished
Fine line between vituperative, passionate speech with much value and that which crosses over into the threatening
[consider example of Malcolm X “ballot or bullet” speech]  
ANTI-abortion campaign problem p. 238 (problem b)
Argument that this is a threat?
Clear innuendo that they support violent action (note careful wording in press conference – not unlike in Debs)
Note adding word “MORE” to t-shirts, also suggesting that they intend to generate fear and that such fear would be reasonable
That this is not a threat?
They’re not threatening that THEY will do anything … they’re explicitly saying that GOD will do it
Also could bolster this by the fact that the group did not itself commit the earlier violence
Could argue that they separated themselves from the action thru a press conference
Note key question raised (one not clearly resolved in the case law): Can a “true threat” include a threat that someone else, someone who you do not control and indeed with whom you don’t even associate, will carry out an act of violence?