Con Law 2: First Amendment
First Amendment Outline
– First amendment is collection of rights: religion, speech, assembly.
– Congress is the theme holding them together, it points towards Fed govt power.
o Says natl government CANT do this.
o Under BOR à states could establish religion.
– 1791 – ratified addressing big Fed Gov Concerns.
Alien & Sedition Acts
– People critical of the government would be punished
o Consistently upheld in lower natl. courts.
– State assemblies complain about it à VA + KY resolutions.
– Never struck down, but Cts agree “1A Protects right to criticize standing govt.”
– Binds state officials, civil war made it apparent states need to be restricted as well as Fed govt.
The New Deal
– Changes Lochner v. NY cts protection of property, counsel, parent rights
o But keeps FOS?
– Minersville v. Gobitis (1940) –
o Jehovas witnesses forced to salute American flag.
§ Against their religion, cant worship anything that might make it seem higher than god.
o Children get expelled à taken away from parents for neglect.
o Lower cts all upheld the salute.
o Justice Frankfurter says: “No free exercise of religion claim”
§ State trying to promote natl unity
· Unifying sentiment à legit interest.
§ FOS not an ABSOLUTE RIGHT à never been 100% protected.
· Balancing, must sometimes give way to additional concerns.
· Liberty of Speech v. Natl. Unity:
o Court can’t decide when salute necessary (no knowledge of impact)
o When not clear we defer to Political Process unless clear violation.
§ Non-discriminatory law à everyone has to salute flag.
– West Virginia v. Barnett (1943) – (Overrules Gobitis)
o In response to Gobitis, WV requires all schools salute flag.
o Jehova’s Witness again challenge, based on their teachings.
o Judge Jackson writes:
§ Symbols “primitive but effective way to communicate ideas”
· Natl. Flag = symbol.
§ People get what they want from symbols.
§ Caroline Products fn. 4:
· Whole purpose of BOR was to remove somethings from the political process
· FOS cannot be submitted to the ballot box.
§ P relies on 14th amend due process clause
· Distinguish between two cases:
o When rights listed in BOR.
§ Get Clear & Present Danger
o When general, not specific.
§ So, STRICT SCRUTINY:
· What is wrong with forcing salute?
o No evidence salute serves purpose.
§ Law must advance state interest?
§ Must produce evidence law works?
· RB review doesn’t require this, but SS does.
§ Modern approach to dealing w/ rights.
“Dangerous Advocacy” & “Clear and Present Danger
– Schenck v. United States
o D convicted of espionage for attempting to obstruct with the military and the draft while US at war w/ Germany.
o Justice Holmes writes:
§ Adopts position that sometimes govt can abridge speech à can tell you to STFU.
· When speech has tendency to create clear + present danger
o Don’t have to wait for harm to occur – step in before your words take effect if they think it will cause danger.
o TENDENCY is key for Holmes.
§ If words do have tendency à defer to legislative process to determine if clear and present danger.
· Quasi heightened scrutiny to determine if the causal link is clear enough.
§ Words can trigger harm à don’t need to wait for people until the riot starts!
– Masses Publishing Company v. Patten:
o Espionage Act of 1917 was the problem, prohibited citizens from counseling or advising violations under the law.
o Complainant seeks preliminary junction to let his magazine be sent through mail.
§ Was anti-war journal.
o Judge Hand:
§ “Willfull false statement of fact” à an opinion cannot be construed as a false statement of fact, individuals can have an opinion and express it.
§ Magazine may cause insubordination but that is not enough.
· Saying it could cause or has tendency to cause insubordination is not enough
o You have right to criticize the govt at a high level, even if it causes insubordination.
§ Can’t punish pure opinions need an identifiable false assertion before the Government can step in … giving opinions is important in a democratic government.
· Not enough for “bad tendency” à government can only step in if person expressly advocates breaking of a law à express solicitation of an illegal activity.
o Must look at the words, do they explicity say “go do something illegal”
o Direct expression triggers govt expression.
– Abrams v. United States:
o Advocated for keeping our troops busy at home to keep out of Russian Revoltion
o Prosecuted under Espionage Act:
§ Behavior poses threat through dangerous activities that will threaten harm and violation of laws.
o Court upholds the prosecution à sees tendency to incite.
o Famous dissent by Holmes:
§ Looks at Clear & Present Danger, wants court involved.
§ No clear & present danger à only going after opinions here.
§ Allow the marketplace to allow competing idea to be expressed.
§ Convicted of plotting violent overthrow of US govt.
o Uses modified Hand’s clear & present danger test:
§ Does gravity of evil justify invasion of free speech as necessary to avoid danger?
· Ct says if grave danger, no need to have high probability or present danger – more danger than less we have to prove other elements.
o Existence of conspiracy enough.
o Ct backing way from free speech due to world conditions.
§ No imminence requirement in Dennis.
o Court has to abdandon this approach!
– Brandenburg v. Ohio –
o Ohio has criminal syndicalism statute, statute broadly prohibited mere advocacy of violence.
§ KKK leader contacted reported invited him to cover rally à rally included violent speech.
§ Arrested for violent speech à upheld in lower ct .
o SCOTUS overturned in unanimous decision:
§ Can’t just view an opinion about the clan à look at the time full of inflammatory events where people all over the world are speaking mind.
· Mere advocacy of ideas, beliefs, opinions can never justify suppression – whatever the ideas are, advocacy alone is not enough to suppress belief.
o NEED DIRECT ADVOCACY OF AN ILEGAL OR HARMFUL ACT (hand test) AND IT MUST BE IMMINENT THREAT (lets burn this down NOW!) and LIKELY TO OCCUR (holmes and CPD test)
· Words imminence and context that suggests there is no time to engage in discussion!
– Discussion notes (read Liz’s class #4 notes):
o Kim Davis?
§ No one can fight generally applicable laws.
Structure of a First Amendment Claim
– First: Is the law content or non-content based?
o Content-based à don’t know if violated unless you hear/see/read speech.
§ Dangerous speech (Brandenberg test)
· Can only restrict if all factors met.
o Non-content based à doesn’t matter what you say, just can’t do it in specific setting.
§ Gets Time, Place, Manner Restrictions – deferential.
– Second: What kind of restraint is it?
o Prior restraint à very strict?
§ Speech à Prosecution à First Amendment defense
· NOT PRIOR RESTRAINT