Con Law II: First Amendment
Lucas Powe
Fall 2013
· Advocacy of illegal action:
o Early history:
§ William Berkley, governor of VA in 1690s: There aren’t really any free press or education here in the US, and that’s basically a good thing.
§ Seditious libel before the revolution
· Lax sedition laws in the US during pre-revolutionary times: Pre-1776, there were only 9 prosecutions for seditious libel ever, compared to England, where they were pretty common.
o 1730s: Anti-monarchist newspaper printer prosecuted for SL; jury acquits and blatantly ignores instructions saying that paper was seditious as a matter of law and only fact issue was whether he published it. After that, they didn’t prosecute for SL much any more.
· VA Gov’t was full of “patriots” who were against King George in the years leading up to revolution: You could get away with lots of anti-king speech that would be blatantly illegal in England, but loyalists kept their mouths shut if they didn’t want to be expelled to Nova Scotia.
§ Ratification of the constitution and the bill of rights.
· Ratification was controversial: Was a bill of rights even necessary?
o Some believed it was superfluous because federal gov’t wouldn’t have the power to infringe any significant rights anyway.
§ Not really true: Tax power and necessary/proper clause probably could have been used for evil.
§ James Madison didn’t like it because it might imply that these are the ONLY rights and gov’t can do anything else… but he came around because his bro Jefferson and his Baptist constituents liked freedom of religion.
o Bill of rights introduced by Anti-Federalists, arguably to torpedo the constitution by creating controversy (although freedom of speech, freedom of the press, and jury trials were points of consensus)
· Ultimately, it was ratified by Congress without too much trouble.
o James Madison went to bat for it, making three main arguments:
§ We need to specify our rights so our courts can protect them.
§ We need to protect against tyranny of the majority by guaranteeing the rights right in the constitution.
§ We won’t accidentally forget to protect any rights by omitting them; news flash, we have the 9th Amendment.
o First amendment was pretty uncontroversial compared to others.
o The Sedition Act
§ Anti-seditious-libel law: Prevented false statements critical of the President or Congress, although it did allow a defense based on truth.
§ John Adams, arch-Federalist, masterminded this law to destroy the Republican party and stop people from criticizing him.
§ Result: Hostile newspapers prosecuted out of existence by kangaroo courts.
§ Aftermath: Republicans took over gov’t in 1800 election amid debate about whether the Sedition act was ever constitutional in the first place (SCOTUS said in retrospect that it was in 1964) and Jefferson pardoned everyone.
· Advocacy of illegal action: Espionage Act cases:
o Schenck v. US, 1919 (CB P. 3)
§ Context: Espionage Act passed during WWI
· Progressives of the time thought that there needed to be no dissent whatsoever in wartime; people needed to be told how to think for heir own good.
· WWI was not particularly popular, nor was the draft.
§ Schenck is a prominent socialist leader at the time who prints some pamphlets against the draft and for socialism; he’s convicted of violating espionage act by attempting to cause insubordination and obstruct the draft.
§ Schenck loses; conviction affirmed.
· This opinion doesn’t really check the boxes of what ought to be in there…
· “Even the most stringent protection of free speech would not protect a man falsely shouting, “Fire!” in a crowded theater that causes a panic.
o This doesn’t really apply to Schenck though; he didn’t actually induce anyone to violate the draft and his speech had some utility, unlike “FIRE!”
· The clear and present danger test: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
o Not clear that this speech really even satisfies the test; it’s hard to say that there was any C&PD of anyone refusing to be drafted, etc. The court decided that it was met.
o As applied, it was really a kind of version of a bad tendency test: Speech that has a tendency to induce someone to do bad stuff can be banned.
· Implies that all the First Amendment actually did was incorporate the common law rules of the time; there isn’t actually any extra protection beyond what people had in 1791. Specifically, this meant only “no prior restraint.”
· Draws a distinction between wartime and peacetime: This kind of speech might’ve flown before the US entered WWI or after the war was over, but not during the war itself.
o Debs v. US, 1919.
§ Eugene Debs convicted under Espionage Act for an anti-war speech he gave.
· Unlike Schenck, he was a semi-credible shit stirrer, he spoke his views in public (more likely to inflame passions), he addressed his speech to a general audience, and his rhetoric wasn’t as pointed.
· This was decided within a week or so of Schenck.
§ Court upholds the conviction under Schenck standard.
· Bad tendency test: speech isn’t protected if the “natural and intended” or “probable” effect of the speech could be found to have been obstructing recruiting service.
§ As of 1919, the First Amendment protects…
· No prior restraints on speech; punishing after the fact is okay.
· You have some latitude to criticize gov’t during peacetime but less during wartime.
· Bad tendency test will be used to judge which speech is or isn’t protected.
o Masses Publishing Co. v. Patten, 1917
§ Facts:
· Postmaster of NY refused to publish an issue of The Masses because it would hurt the war effort; plaintiff wants injunction against this censorship.
§ Holding:
· Learned Hand, Powe’s BFF, holds for Masses.
· Hand, master of statutory interpretation, works his mag
bited pure speech as well.
· All speech is incitement on some level; the only way to draw that line may be how zealous the advocacy is.
· Holmes is opposed to tyranny of the majority: If people are going to be convinced that socialism is best, free speech shouldn’t stop these ideas from being expressed.
o Criminal syndicalism: Whitney v. California, 1927
§ Charlotte Whitney was a big time socialist and leader of Communist Labor Party of California.
· Whitney convicted of violating CA’s 1919 Criminal Syndicalism Act, which prohibited “organizing, or knowingly becoming a member of any organization . . . assembled to advocate, teach or aid and abet criminal syndicalism (doctrine advocating crime/unlawful act to effect political change).”
§ Conviction is upheld.
· Whitney’s argument that she didn’t join the CLPC with knowledge of its unlawful purposes is based on fact, not law, and it’s not going to help her.
· Court again is really deferential to state’s determination that it needs to exercise its police power in this area; it survives rational basis review because it isn’t arbitrary or unreasonable to convict someone.
§ Brandeis’ Awesome Concurrence:
· Advances a revised view of the clear and present danger test, which he thinks should have applied in this case.
o “To justify suppression of free speech 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 immediate.”
§ Again, “present danger” becomes “imminent danger.” How do you know when a danger is imminent?
· If there is time for speech to rebut speech, it’s not imminent.
· Actually draws a reasonable line about how much risk of the thing actually happening has to exist to justify punishment.
§ Furthermore, it has to be a “serious evil” to justify conviction for promoting it.
· Waxes philosophical about the reasons we protect free speech:
o Promote rationality and dissuade people from irrational fears, etc.
§ “Men feared witches and burned women.”
§ If people have stupid, harmful views, we should defeat them with more speech, specifically education, as well as punishing real crimes.
o It gives us freedom to learn and develop our stupid minds.
o It protects against noxious ideas like witches.
o It assists in finding truth.
o Liberty is an end unto itself.
It helps democracy function properly.
