1st Amendment
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.
Free speech protection was incorporated into the 14th Amend. in Gitlow v. New York
Justifications for Protection of Speech
4 Rationales (Brandeis in Whitney)
Self Governance
Discovering Truth
Promote Autonomy
Foster Tolerance
Self Governance
Freedom of speech is crucial in a democracy
Must have open discussion of candidates and ideas
Political speech is at the core of the 1st amend (NY Times v. Sullivan)
Popular sovereignty
Discovering Truth
One of the most important purposes of society and govt. is the discovery and spread of truth on subjects of general concern. (Chafee)
Marketplace of ideas (Holmes in Abrams)
i. Truth most likely to emerge from clash of ideas
ii. Remedy is more speech to expose falsehoods and fallacies, not enforced silence (Brandeis in Whitney)
Criticism
i. Some have more resources, will drown out other voices
ii. Wrong to assume that truth will win if speakers appeal to fear and emotion
iii. Even if truth prevails, enormous harm can occur in interim
Counter-argument
i. Govt. determination of truth and falsehoods, and resulting censorship, is worse
Advancing Autonomy
Speech used to define speaker as a person
i. e.g. War protestor defines himself through protest, rather than believing that others will change mind
Expression is intrinsically important
Criticism
i. No more of a fundamental right than other activities that create autonomy
ii. Harmful speech (hate speech, porn) may undermine autonomy of others
Promoting Tolerance
Allowing offensive speech shows self-restraint
Protecting unpopular or distasteful speech is an act of tolerance
Tolerance of speech serves as a model that encourages more tolerance throughout society
Free Speech in Colonial America (Zenger Case)
Traditionalist view
Zenger Facts: Printer who published true criticisms of the NY Governor, Accused of libel and seditious writings, Jury decided both the facts and the law, & Printer went free
Influenced political, not legal thought
i. Why do we need Free Press?
1. Only through free press can the people learn about the evil doings of their rules
2. Only through knowledge can they protect their liberties
3. Only through free press can opposition function
ii. Trial had lasting impact on libertarian/democratic principles throughout the revolution
1. Was known to just about every American leading up to the Revolution and throughout the establishment of the US
Precedent supposedly set:
i. Truth & factually correct as a defense to libel
1. Previous standard = “The greater the truth, the greater the libel”
ii. Jury decided whether the publication was libelous or not
“Revisionist” challenges
The law didn’t change, it was simply one jury verdict
i. Judge still got to decide libel
ii. Truth was not a defense
These were not heroes – they only had business interests in mind
Where does Finkelman come out on this?
He agrees that the law didn’t change BUT revisionists underestimate its impact on the political climate of colonial America
i. Zenger’s lawyers expressed a view of what the law should be that was very appealing in the Colonies
ii. What was the general importance of free speech in their arguments?
1. Free Speech is a defense to tyranny & a necessity to democracy
2. Truth as a defense
Self interests of printers is irrelevant
i. “Most widely known source of libertarian thought in England and America during the 18th century.”
Makes the argument that the few prosecutions for libel in Colonial America was caused by this outcome
The Original Meaning of the 1st Amendment
Professor Chafee’s Opinion (originally widely accepted)
1st Amendment was intended to abolish crime of seditious libel and punish criticism of government ONLY IF it incites law-breaking
i. Seditious Libel – criticism of government that went too far
1. Very vague and amorphous concept
Professor Leonard Levy claims in “Legacy of Suppression”
Claimed – correctly – that history showed Chafee’s claim was wrong
In fact, according to Levy, all the 1st amendment was intended to do was incorporate the English common law set forth by Blackstone which prohibited prior restraints on speech (don’t need to get government permission to publish) but there were no limits on punishing or regulating speech after publication
i. Levy dropped this claim in the revision and admits that during these years of “suppression”
1. The 1st Amendment was intended to limit punishment of speech after publication.
2. Press enjoyed freedom spurred by the expanding legacy of liberty
3. Concedes that Framers intended to protect some publications from subsequent criminal liability
ii. However, Levy continued to hold that
1. The 1st Amendment incorporated the English Common Law of seditious libel
2. As long as there was punishment for seditious libel, then there was no meaningful free speech. The two are incompatible
Rabban disagrees w/ Levy: Possible to protect FS w/ seditious libel law
Agrees with Levy that the 1st Amendment did not abolish seditious libel & seditious libel is inconsistent with free speech
HOWEVER, even in a legal system which retains a law of seditious libel, its is possible to still have meaningful protections of freedom of expression
i. NY Times v. Sullivan S.Ct. (1964), very important case, for the 1st time SCOTUS declared that the 1st Amendment abolished the common law of seditious libel.
1. Thus, under Levy’s view, no meaningful FS until 1964. Crazy
ii. “[T]he framers of the 1st amendment, [were] influenced by republican political theory to expand the protections for freedom of expression well beyond the narrow boundaries of the English common law while retaining some conceptions of seditious libel.”
iii. Refuses to see the paradox at the time
1. Existence of a unfettered press coupled w/ rare libel prosecutions
y around
Sedition Act of 1798 was an advance in protecting free speech
i. Included:
1. Truth as a defense and
2. The jury played a role in the decision
ii. Sedition Act caused many people to come to the conclusion that punishment for seditious libel is inconsistent with the 1st Amendment’s protection for free speech
1. Why was constitutionality of Sedition Act generally denied?
a. Gov’t is the agent of the people, not their rulers or tyrants
b. Gov’t is responsible to the people for their conduct
i. To enforce this responsibility it is necessary that the people have the right to “scrutinize.”
ii. It is “an unimpeachable right to censure as well as to applaud” their government.
c. Convictions of Lyon and Callendar brought home the point
iii. What’s the problem with the Sedition Act?
1. Gov’t could prosecute the DR’s opposition, or in other words, the Federalists were making the DR’s political views illegal.
2. Many rhetorical and hyperbole statements could be taken as fact statements and charged as seditious libel
3. Chilling effect
Libel Law in the Early 19th Century (Roper Article)
Background – Sedition Act expired in 1801 b/c new administration (Jefferson)
People v. Croswell
Kent-Hamilton Law (taken from Croswell):
i. Truth could be used as evidence IF it “was published with good motives and for justifiable ends.” Also, jury decided law & facts
Needed in response to Sedition Act which punished many typical criticisms of government, but limited only when published w/ good motives
In the mid-20th century most States had adopted the Kent-Hamilton Law before NY Times v. Sullivan
How was this Kent-Hamilton law applied?
i. Inconsistently à Caused criticizers to think twice b/c of fear and not knowing where the line was
ii. BUT the multitude of libel suits in the early 19th century did not deter political critics in the press
Why was Tucker’s free speech position ultimately not adopted in the States, but instead the States incorporated the Bad Tendency approach of English common law resulting in more punishments?
Fragile new government – too much criticism might damage it
People don’t really want all speech to be protected – they want their speech to be protected
More free speech than in England, and maybe that was good enough – not sure how far they wanted to go
More fear of federal gov’t restrictions than state gov’t restrictions – and speech
