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First Amendment
University of Oklahoma College of Law
Thai, Joseph

FALL 2013
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
John Stuart Mill
·         Utilitarian philosopher
·         Thought that society lost something valuable and practical if ideas are suppressed.
o   It is worth bearing the cost; if it takes years to have the truth come out?
·         A dangerous idea is a right idea
·         Even if it’s a false idea, you won’t know the truth until you’ve grappled with the other side.
·         Falsehood will help you grapple and better understand your own idea.
·         The more extreme the better.
·         We should let all ideas into the marketplace of ideas.
John Milton
·         Religious iconoclast
·         Milton did not believe in press restrictions imposed by the Crown. Also did not believe in the organized religion imposed by the Crown even though he was a very religious guy.
o   Compared censorship to Catholicism, which he loathed.
·         “Cloistered truth isn’t worth very much”
o   No one has a monopoly on truth and the truth cannot be cloistered.
o   Ideas worth not worth anything unless they were put to the test.
·         Milton had great faith in the marketplace of ideas
·         No society in the world has a completely free and open marketplace of ideas.
The Supreme Court has, at least in theory, adopted some of Milton’s ideas.
·         Thai sees a problem with defining “the press”
o   Who is the “media”?
o   Who gets special treatment under the First Amendment?
·         Problems with the decision maker and their role in the system of making decisions.
·         If you have a marketplace of ideas, do all have equal access to the market?
o   Marketplace analogy is the foundation for the First Amendment
·         Markets fail from overconcentration of ownership
o   Access plays into the marketplace
·         Markets fail from over-speculation
·         People are more likely to like an article that other people like.
o   By self-selection, we filter out ideas that “they” don’t like.
·         Any and all laws are not abridgment
o   Phrase is more commonly used term was “freedom of press”
·         “Liberty of the press consists in laying no previous retrains upon publications, and not in freedom from censure for criminal matter when published.”
Seditious Libel
·         Crime to bring king, heir, church, parliament, government into “hatred or contempt”
·         Truth was not a defense
·         Blackstone though this was fine
Zenger Trial (1735)
·         Seditious libel
o   Argued that truth should be a defense.
o   Judge said that truth was no defense, however, a jury acquitted the defendant.
·         First Amendment designed to prohibit prior restraint, and allow for the criticism of government and government officials.
·         Alien and Sedition Act passed in the lead-up to the election of 1800, which prohibited “any false scandalous and malicious writing.”
Matthew Lyon
·         Wrote about John Madison, “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
·         Convicted, notwithstanding the First Amendment.
Virginia Resolutions of 1798
·         Written by Jefferson and Madison
·         Government restrained from adopting speech restriction
Kentucky Resolution of 1798
·         “Not law, altogether void and no effect.”
·         Not clear as a matter of history or language that it was a bright line rule.
·         Not all categories of speech are protected by the First Amendment.
·         If government is regulating speech based upon content, it needs to have a damn good reason to do so.
o   Strict scrutiny invented in the second have of the 20th Century as a rhetorical device to explain decisions.
·         Can throw people in jail for saying things about the king
·         Sparse case law
·         Blackstone – freedom against prior restraints
·         Bad tendency to produce socially undesirable results, could be punished but could not be restrained prior to speech
·         Government put out a lot of propaganda getting people to join the military
Espionage Act of 1917 and 1918 Amendments
·         Obstructing recruitment or enlistment
·         Prohibited publication intended to cause scorn for U.S. Constitution or U.S.
·         Prohibited uttering words supporting any country at war with the U.S. or opposing any cause of the U.S.
·         Transmitting material related to Nat’l defense that could injure the U.S.
Shnek v. U.S. (1969)
·         Illustrative of a line of cases
·         Clear and present danger
o   Cannot judge speech out of context, you must judge the speech in the manner in which its presented and its context.
·         Holmes leans on the word “freedom” and states that no right is absolute.
·         The limit is within that context, does that speech give rise to a clear and present danger.
·         If the intent and tendency are the same
o   Every idea opposed to the war effort is incitement under this line of thought
Eugene Debs (1919)
·         Given 10-year jail sentence for telling people they were better than cannon fodder.
·         RULE: Danger just has to be possible during war-time, it need not be clear and present.
Abrams (1919)
·         Ultimate good desired is better reached by the free trade of ideas.
·         Imports metaphor that has strains of Milton, Adam Smith, and social Darwinism.
o   Idea of competition in the marketplace foundation for the First Amendment.
Red Scare Period
·         Bolsheveik Revolution in Russia and Communist Revolution in China.
·         Supreme Court becomes even more deferential to the other branches of government.
o   Allow suppression of speech so long as the legislature says it should be suppressed.
·         Criminal Syndicalism Laws (Smith Act)
o   Advocating for the overthrow of the bourgeois order
o   Oklahoma has a criminal syndicalism law
§  Violated only by Occupy Oklahoma City
Gitlow (1925)
·         Published a left-wing manifesto no different than what Marx and Engels were writing.
·         Justice Sanford thought that criminal syndicalism is dangerous.
·         Justice Holmes dissented.
o   Every idea is incitement.
Whitney v. California (1927)
·         Brandeis concurring opinion
·         Whitney was convicted under the California Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group that the state charged was devoted to teaching the violent overthrow of the government.
·         In Justice Brandeis’s concurring opinion, he notes the citizen’s obligation to take part in the governing process, and states that they can only do this if they can discuss and criticize the government fully and without fear.
·         Brandeis utilizes lockean ideas and says that states tend to overreact to speech.
·         This case adds imminence to the clear and present danger test and develops what is called a “time to answer” test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion.
McCarthy Period
Dennis v. U.S. (1951)
·         Dennis was the General Secretary of the Communist Party.
o   The Court held that Dennis did not have the right under the First Amendment to exercise free speech, publication, and assembly, if the exercise involved the created of a plot to overthrow the government.

       Flag burning case
o   Invalidated prohibitions on desecrating the American flag.
·         Speech with political content
·         Brennan wrote for the majority holding that the act of flag burning is protected speech under the First Amendment.
o   Flag burning constituted expressive conduct, permitting Johnson to invoke the First Amendment.
§  Overtly political nature, given the context of the burning of the flag.
o   No disturbance of the peace actually occurred or threatened to occur because of the flag burning.
§  The Court reiterated that the state can only punish speech that would incite “imminent lawless action,” finding that flag burning does not always pose an imminent threat of lawless actions.
·         No reasonable person would have regarded the generalized expression of dissatisfaction of the government as a direct personal insult or an invitation to exchange fisticuffs.
Cohen v. California (1971)
·         Guy arrested for wearing a jacket with the words “Fuck the Draft” inside the Los Angeles Courthouse.
o   Convicted for violating a California statute, which prohibited “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct” and sentenced to 30 days in jail.
·         Interesting case in that originally the government won the case but Justice Harlan had a change of heart after conference.
·         Words on a jacket are not obscenity, not being punished for conduct, not about a captive audience.
·         Harlan states that this case is about the word “Fuck.”
o   Whether the state can say “not that word” or most people would find morally and socially repugnant or offensive.
·         It is not the state’s job to cleanse offensive conduct
·         Harlan was afraid of a slippery slope in which the government would be tempted to ban words that would be critical of the government.
·         The California statute was overly broad in that “offensive conduct” cannot be said to “sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.”
·         Harlan discussed the purpose of the First Amendment and cited Justice Brandeis.
·         People, not the government should decide what ideas have value and should be allowed into the marketplace of ideas.
·         The Court refused to classify “Fuck” on a jacket as a fighting word, as no individual “actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.”
·         The Court was unwilling to give credence to the idea that the government could suppress the type of speech as issue in this case in order to protect the public at large.
o   The dissent says that this is not speech but an absurd and immature antic.
·         Harlan says that there is difficulty in setting a line.
·         Cohen advances a hierarchical view, Harlan is line drawing in the opinion.
o   Extreme is what is needed in a free society is embraced by Cohen.
o   Cohen has hints of two approaches of the court
§  The Court is broken along jurisprudential lines, not ideological ones.