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First Amendment
University of Illinois School of Law
Lash, Kurt T.

Kurt Lash
Con Law 2: First Amendment
Fall 2015
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.”
14th Amendment
–          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.
·         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.
·         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