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First Amendment
University of North Carolina School of Law
Marshall, William P.

UNC Law – Marshall – First Amendment Law – Fall 2014


I. Background & Rationales – Why is speech constitutionally protected?

A. Background

1. 1st amendment: protects freedoms of speech, press, religion & assembly from federal interference

a. extended to states through 14th amendment DPC by Gitlow v. NY (1925 – Gitlow prosecuted in NY as anarchist b/c was socialist; said violated 1A and 14A – Court disagreed, said state exercised its reasonable police power, no violation)

2. Remember that some categories of speech are NOT protected: obscenity, fraud, defamation

B. Three Major Rationales

Marketplace Model

Abrams v. US (Holmes dissent)

Applies social Darwinism to ideas: speech should be protected so that the “best” ideas can win out in the free market

Persuasion principle: state cannot prevent individuals from being persuaded

Criticisms: (1) goal is attainment of truth, but says we must keep looking for truth because we can never really know it; (2) it is not really a fair free market and dissent doesn’t have a fair shot; Marshall: protecting the right of expression is not equivalent to providing for it; see access to the media (but internet changes this)

Informed Electorate Model

Mieklejohn: “principle of freedom of speech springs from necessities of self-government, so public speech should be protected absolutely”

Bork: would only protect political speech

Criticisms: (1) leads to a fixed set of protected speech; (2) non-public or non-political speech may also help citizens participate; (3) who decides what is public or political and what is not

Individual Liberty Model

Brandeis/Mill: speech has intrinsic value “as an ends and a means”; it is protected because of its value to the individual in developing and being autonomous. With free speech, we reach our full potential as human beings

Safety valve theory: a society that does not allow free expression is fragile; freedom of expression is “social cement”

Criticisms: (1) Bork: if you protect everything, you protect nothing (too encompassing); (2) other activities contribute to autonomy and development, so why only protect speech

1. Abrams v. United States (1919): SCOTUS allows NY gov’t to punish publishers of pamphlets criticizing forces/urging factory workers to stop making munitions made and sent to challenge Communists under Espionage Act; Holmes dissent sets out marketplace of ideas model: “the ultimate good desired is better reached by free trade in ideas…the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

2. Other Rationales

a. Tolerance: Bollinger: one of the goals of free expression is to teach a heterogeneous society to be tolerant of one another

b. Public Choice: Farber: information is a public good

c. Equality Principle: MacKinnon & Delgado: freedom of expression should NOT be valued above all other interests; the right to be free from discrimination should allow hate speech to be banned

II. The Subversive Advocacy Cases

A. Masses Publishing Co. v. Patten (1917): SCOTUS would not allow journal that caused discontent among troops to be found to violate Espionage Act. Learned Hand opinion established “the bad tendency test”: If there is no tendency to produce unlawful conduct, then the speech or publication cannot be banned (unless you incite illegal action, you are protected by 1st amendment, even if you just stop short of incitement)

1. Note: Masses was reversed on appeal. Court flatly rejected Hand’s interpretation of the Espionage Act. After 1921, Hand himself abandoned his advocacy of this approach.

B. Schenck v. United States (1919): SCOTUS permits government to punish a Socialist under the Espionage Act for mailing leaflets critical of the draft & urging those drafted to refuse Holmes opinion establishes clear & present danger doctrine: “the character of an act depends on how it is done…cannot yell fire in a crowded theater…question is whether words under the circumstances create a clear and present danger and will thus bring about substantive evils that the gov’t has a right to prevent”

1. This test not very demanding; easy for gov’t to meet/prove


C. Abrams v. United States (1919): Defendants, Russian immigrants and self-proclaimed anarchists, distributed leaflets calling for a general strike of workers in ammunitions factories when the US sent marines into Russia during the Bolshevik Revolution. They were convicted for violating the Sedition Act of 1918. SCOTUS affirmed the conviction, saying clear and present danger test applied b/c danger of threat to war effort. Holmes dissented, saying it has to be a present danger of immediate evil in order for speech to be suppressed under clear & present danger test

1. difference b/t this and Schenck for Holmes is that Schenck encouraged obstruction of draft (more immediate evil/emergency) whereas this merely criticizes (calls for general strike)

2. idea is that with a true clear and present danger, there is no alternative to suppression; key is how much time there is to offer other views, etc.

D. Dennis v. United States (1951): Defendants convicted for violations of the conspiracy provision of the Smith Act by being members of a sect of the Communist Party that, it was clear, advocated for overthrow of the government as soon as the opportunity arose. SCOTUS affirmed.

1. Development of Dennis Test: Modified “clear and present danger”: Courts must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

III. Fighting Words and Offensive Speech

A. Chaplinsky v. New Hampshire (1942): JW shouting things like “goddamned racketeer” and “damned fascist” can be convicted of violating statute forbidding offensive words because SCOTUS put a gloss on it: the gov’t can prohibit “fighting words” that have a direct tendency to cause acts of violence from those they are addressed to and cause a breach of the peace.

1. significant not only for fighting words but this creates the principle that there are unprotected categories of speech, including fighting words, profanity, libel, etc.

2. harms-effect rationale: In the US, whether speech is harmful or offensive is usually irrelevant to whether or not it is protected because we reject the harms-effect rationale; by contrast, in other nations particularly harmful speech, such as hate speech, has been deemed unprotected

3. Theory of fighting words doctrine: it’s not pure speech at all; it’s brigaded with action; words have such slight value that any value they have is outweighed by social interest in order and mo

ent undertakes to regulate speech because of message and when it regulates for some other purpose

1. test for content-based: must be a compelling government interest and regulation must be narrowly tailored to serve that interest (strict scrutiny)

a. subset: viewpoint-based regulations

b. there ARE content-based regulations: obscenity, etc.

2. test for content-neutral: must be a substantial governmental interest and must be narrowly tailored to that interest AND it must leave open alternative avenues of communication (sounds like intermediate review, but is in practice much more deferential)

B. Protected Statements Against Individuals

1. If we have a public figure/official and it’s a matter of public concern:

a. PO must prove actual malice to get damages (NYT v. Sullivan)

2. If we have a private figure and it’s a matter of public concern

a. Private cit. only prove negligence+fault (Gertz v. Robert Welch)

3. If we have a private individual and it’s not a matter of public concern

a. Only strict liability–(Dun & Bradstreet v. Greenmoss Builders)

-Dun&Bradstreet said matters of public concern are at heart of 1A

C. New York Times v. Sullivan (1964): NY Times ran an ad criticizing the way that Alabama police commissioner handled a civil rights demonstration. He brought libel suit against NY Times. Alabama court, under their libel statute, found for Plaintiff and awarded large damages. Defendant appealed to SCOTUS. Court refused to award damages

1. Court said to prove libel, statement must specifically be “of and concerning plaintiff”

2. Elements of libel: a). Defamatory statement b). of and concerning the plaintiff; c). It was published; d). There were damages

3. For a public official to collect damages, must also prove malice: prove that the statement was made w/ knowledge it was false OR WITH reckless disregard for whether it was false or not

-as PO, your rep may be attacked, but that’s protected public speech; actions of PO=matters of public importance

D. Gertz v. Robert Welch, Inc. (1974): Newspaper published defamatory and untrue statements about Gertz, a lawyer bringing civil suit following famous criminal trial.

1. The court said that a private person does not have to show actual malice in order to recover damages for libel even if the defamatory comments discuss a public issue

2. Private individuals need more protection than public, have less power to refute; POs, however, assume risk of having rep attacked

E. United States v. Alvarez (2012): Alvarez said at meeting that he was a retired marine after 25 years, & that he had won the Congressional Medal of Honor. This was a lie; he was charged with violating the Stolen Valor Act of 2005 (can’t falsely represent oneself as having received any U.S. military decoration or medal). Court overturned.