Constitutional Law II: Free Speech
Fall 2010—Rabban
Outline
I. Free Speech in Colonial America
A. The Zenger Case (1735)
-major victory for liberty and free speech
-According to Traditional View, set two new legal precedents:
In seditious libel cases:
1. Jury would decide if the material was libelous.
2. If material was factually correct, it couldn’t be libel.
-Revisionist View of case:
1. Common law wasn’t changed.
2. Motivation behind publication was not democracy/liberty – instead was private political intentions
-Finkelman’s view from his article:
-acknowledges that Zenger didn’t change the law, wasn’t a precedent
-but it brought the issues to the public’s attention
-decision was reprinted more than any other document at the time
II. The Original Meaning of the First Amendment
A. Rabban’s article on Leonard Levy
-Levy claimed, contrary to prevailing assumptions, that the framers of the first amendment did not have a libertarian conception of freedom of expression.
-Chafee (influential Harvard law professor), formulated the longstanding interpretation
-Framers of 1st Amendment “intended to wipe out the common law of sedition, and make further prosecution for criticism of the government, without any incitement to law-breaking, forever impossible in the U.S.”
-Levy looked back at original sources, wanting to support Chafee’s position, and instead found the opposite, wrote Legacy of Suppression
-accused Chafee and other liberals of “playing..fast and loose with skimpy evidence” in an attempt to conform the understanding of the amendment with their liberal views
-Levy’s (60s) interpretation superseded Chafee’s (WWI)
-In Legacy:
-1st Amendment didn’t abolish seditious libel
-all 1st amendment did, or was intended to do, was incorporate in the language of the Constitution the prior English common law of free speech, as it had been defined by Blackstone
-Blackstone’s view was: the law prevented prior restraint on publication, freedom of the press– people were free to publish without getting permission from the state (that’s it); Didn’t PRECLUDE subsequent punishment (you can publish, but you can also be punished for what you publish)
-25 years after Legacy, Levy wrote a revised book, Emergence of a Free Press
-Levy revised his views, after criticism and additional research
-Levy dropped original claim that 1st amendment did nothing more than incorporate Blackstone’s view
-concluded that Framers of 1st Amendment intended to protect some publications from subsequent criminal liability
-1st amendment implied that Constitution prevented certain forms of subsequent punishment for certain kinds of speech
-his subsequent research showed that the press was substantially free around the time of the 1st amendment (regardless of what the law actually was)
-in his revision- Levy stuck to basic attack on Chafee, repeated it even—that 1st amendment did NOT abolish the English common law of seditious libel AND also maintained that as long as seditious libel remained a crime, the 1st amendment could not be understood as meaningfully protecting free speech
-if a person can be punished for seditious libel, there is no meaningful free speech
-Levy calls seditious libel “criticism of the government that goes too far”
-Rabban does not disagree with Levy’s assertion that the 1st amendment did not abolish seditious libel
-Rabban, however, believes that is possible to have meaningful protection for free speech even when there is a law for seditious libel
-but agrees that having a seditious libel law is a major obstacle to free speech (just doesn’t make it impossible)
-Potential exam topic- Is Levy convincing that a law against seditious libel precludes meaningful protection of free speech
-USSC did not definitively hold that the 1st amendment precludes punishment for seditious libel until 1964 (NY Times v. Sullivan)
-Doesn’t it follow then, until 1964, under Levy’s view, there was no meaningful protection of free speech, and so on
-New republican form of government brought about many changes (popular sovereignty)
-dramatic implications for free speech (relationship)
-popular sovereignty necessarily entails a new concept of freedom of speech
-Original Federalist argument opposing the first amendment—BofR would threaten fundamental rights (Ġ idea—that by including the BofR you imply, that absent such, the gov’t would have the right to impede those rights) (People retained all rights except those EXPRESSLY delegated to the gov’t)
-anti-federalists agitation for BofR was EXTREMELY popular
-Federalists decided not to risk ratification of the entire Constitution over the BofR; many of them went on to change their minds, felt it was a good idea to provide ADDITIONAL protection for free speech (Madison for example)
B. Sedition Act of 1798 ABSENT
C. Blackstone’s Commentaries
-Tucker’s version in US was immensely popular
-Tucker wrote his own appendices, to explain differences between English and US common law
-including free speech, freedom of press
-Blackstone treated libel as something similar to a challenge to a fight (both tend to provoke a breach of the peace)
-danger of provoking physical danger in response is the concern
-something that is TRUE might be more likely to provoke the physical response
-doesn’t matter if statement is true/false; if anything, more dangerous if statement is true
-Blackstone said truth is a defense to a civil libel action (not criminal) (no private injury if it’s true—civil; criminal involves public interest)
-libel… something of pernicious tendency, punishment is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty
-Blackstone refers to “tendency of speech” frequently, consider validity of punishing “tendency” to do something
-according to Blackstone…to punish libel does not violate liberty of the press properly understood (goes on to reference PRIOR RESTRAINTS)
-violation of liberty of the press (according to Blackstone) was the prior law in England requiring a license
-differentiates between freedom of the press and abuse of freedom of the press—again focused on prior restraints
D. Tucker’s Appendix to Blackstone’s Commentaries
-uses a passage from a Radical Whig to respond to Blackstone—essentially states that allowing Blackstone’s view would allow the judges/law enforcers to punish based on their personal opinion on a given doctrine
-States can incorporate as much or as little of English Common Law as they choose
III. Libel Law in the Early 19th Century
A. James Kent and the Emergence of New York’s Libel Law (By Roper)
-Jefferson and Republicans were original champions of free speech (while not in power)
-Jefferson and Republicans abando
n provisions to the English prohibition against prior restraints on speech (including Holmes in 1907)
-opposite side of ideological spectrum from the judiciary was the long American tradition of libertarian radicalism, originating before Civil War in individualist anarchism, radical abolitionism, freethought, and free love
-focus was on individual autonomy in all aspects of life
-look to his text, p1-9 for general intro to historical background
C. The Lost Tradition of Libertarian Radicalism (Rabban, p. 23)
-ACLU gets most credit for being first organization to actively protect free speech; primary focus was on political expression as a result of aftermath from WWI
-Rabban argues that several smaller and braver groups of libertarian radicals, often on the intellectual and social fringes of American society, advocated a much more protective conception of free speech, extending well beyond political expression
-libertarian radicalism was popular with those who rejected the competitive individualism of capitalism and the emphasis on social harmony in progressive thought
-organizations included the National Defense Association (1878) which focused on persecutions under the Comstock Act and the Free Speech League (1902) which had a broader commitment to defend free speech for all viewpoints
I. The Comstock Act (1873)
-Comstock was a social purist
-law didn’t define obscenity—enforcement was based on opinions of those enforcing
-law was applied against publications which were opposed to marriage, talked about contraceptives, or were “blasphemous”
-Comstock himself recognized that works of great literature could include sexually explicit material—would only prosecute if advertised for that material specifically
-Cupid’s Yokes- widely distributed pamphlet on free love
-free lovers were against state regulation of marriage, argued for sexual self-government
-called marriage the legalized slavery of women
-two key figures prosecuted were Heywood, the author, and Bennett, a distributor
-Bennett didn’t agree with Heywood’s ideas but was concerned about the potential reach of the act—almost looks like a showdown
-both relied on 1st amendment for defense
-SC had held in Ex Parte Jackson that freedom of press was not violated when excluded material was injurious to public morals
-definition of obscenity from Bennett’s case prevailed until 1957
-Bennett challenged indictment in two ways:
(1) didn’t specify which passages were obscene
(2) when so-called obscenity is used in a social polemic, author’s motives should be determinative
-SC said the test is not the motive of the author but the effect of the words upon the reader; “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such….”—borrowed from English decision, The Queen v. Hicklin
