I. Incorporation- how since the Slaughter house cases have the first eight amendments to the constitution been incorporated to the states via the due process clause of the fourteenth amendment.
a. Barron v. Mayor & City Council of Baltimore
i. Issue: Barron is suing the state of New York for taking of his land without just compensation when the state deposited silt on his property.
ii. Justice Marshall believed that the people of a state will be able to protect themselves from the state governments not by the national constitution rather the state constitution/electoral process.
iii. Basically, the function of the constitution at this time was focused on the federal government.
b. Murray v. Hoboken Land & Improvement Co.
i. Basically outlines the fact that there is no established process in the fifth amendment to incorporate due process, or for that matter what due process actually is.
II. Free Speech
a. Why have free speech?
i. Truth (aka- market place of ideas, that ideas will stand on their own)- the ability to discover truth is often masked by restrictions on the ability of people to openly communicate to each other.
1. Problem with government intervention, what if the government is wrong, often the truth will be buried by the government supporting false ideas.
iii. Checking- the governments will be careful to act if the public is watching and able to criticize the government.
iv. Self-government- the people govern themselves by discussing topics and issues and thus communicate with the elected officials. Without some amount of free speech, the people would be unable to make informed decisions.
1. Self-fulfillment and autonomy
2. Tolerant society- hearing ideas that piss you off make you tolerant of others and ideas which helps to shape a person into being able to have better debates and so forth.
v. **Safety Valve***- the idea that speech gives us a release valve for our frustrations and so forth that could possibly lead to violence without such safeguards.
Notice that each rational protects a different type of speech. The self-government role seems to protect public speech. The truth/marketplace role seems to affect the individual. When reading the elements of speech, look at what type of speech each seeks to protect.
III. History of Free Expression
a. Prior Restraint (mid evil time period and on)- one needed to have approval by the government before publishing his/her works.
b. Blackstone sought that the element of free expression was the removal of prior restraint, after that, if the work was defamatory or ‘unacceptable’ by the government’s opinions, the author could still go to jail.
c. Seditious Libel- the concept of spreading false or true statements about the government that could be perceived to stir negative attitudes towards the government.
d. The anti-seditious act- enacted in the early America’s around the time before the revolution in an attempt to quell negative opinions towards the government. The problem with this is that there is no consistent order for one to determine whether the speech is acceptable or not (content based restrictions). (One key point in this as an objection is that the states were the one’s enacting these powers and basically there was a surpassing of the powers of congress in such matters.
IV. Content Based Restrictions
a. The primary law in question for the following cases is the Espionage Act, (see pg. 1006 for the outlined text on the law). The law outlaws the following three crimes:
i. making of false statements (speech)/reports with intent to interfere with the military success of the United States…
ii. to cause or attempt to cause insubordination, disloyalty, …, in the military or naval forces of the U.S. and
iii. to obstruct the recruiting or enlistment service of the U.S. The Espionage Act was followed by the Sedition Act of 1918, which was short lived.
b. Considering the cases, the reason that there is a problem in prosecuting the people in the respective cases is that the interest of the government is to suppress public and private speech (remember 1st amendment issues).
c. Expression that induces unlawful conduct
i. Shaffer v. United States- Shaffer ‘mailed’ a book with seditious materials (compared America to Satan). Court held that there is some value in material such as this such as allowing for a media to expel dislike in the government, foster specific ideas that are in accord with the fundamental freedoms of the Bill of Rights.
1. Higher court over-ruled lower court decision and reinstating the rule that the freedom of speech is trumped by the current Espionage Act.
2. Disapproval of war/ “seeks peace”- mere disapproval of war is acceptable but going further than this (inciting for example violent behavior) is unprotected speech.
3. Natural and Probable Effect Test- “The questions is whether the natural and probable tendency and effect.” Here, if the natural and probable tendency/effect that provokes violence is deemed “bad tendency”.
4. “Bad tendency”- Does not have to be a strong link b/t the act and the outcome. Punishing what bad might happen
ii. Masses Publishing Co. v. Patten- N.Y. postmaster would not mail the pamphlets because it ‘incited’ anti-sediment towards the draft.
1. Direct Incitement (express incitement)
2. This case revolves arou
stantive evil which the state may prevent.”
2. To justify suppression, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent, and there must be reasonable ground to believe that the evil to be prevented is a serious one.
viii. Dennis v. United States- Defendants were convicted of advocating the overthrow of the government in accordance with the Smith Act.
1. The court in applying the “clear and present danger” test, formulated a more concrete definition of the test.
a. Courts must ask whether the gravity of the evil advocated in the speech, discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger.
b. The court must decide if the government interest in limiting speech is substantial, and then whether the speech constitutes a ‘clear and present danger.’
c. The greater the effects of the advocacy, the less clear and present the danger has to be to justify government action.
ix. Brandenburg v. Ohio- KKK leader was convicted under a state statute for advocating using crime, violence, and terrorism to accomplish political reform.
1. The court announces a test for determining whether speech can properly be suppressed
a. Brandenburg Test (to determine whether the speech can be suppressed or not)
i. “Directed to inciting”- rather broad and very encompassing. This seems to rely upon Masses, where incitement is a narrow speech that includes inciting someone to do something.
ii. “Imminent lawless action”- one must not only be inciting, but to inciting ‘imminent lawless action.’ (This seems to resemble the Holmes-Brandeis clear and present danger test).
iii. “Likely” to do the previous elements (incite and present an imminent lawless action)
b. Under this Brandenburg test, speech is protected more now than in the court’s previous rulings. In the end, the Klan is released because the speech is protected.
c. Brandenburg has been interpreted as requiring “three things”
i. Express advocacy of law violation;
ii. The advocacy must call for immediate law violation; and