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Constitutional Law II
Wayne State University Law School
Lund, Christopher C.

Lund Constitutional Law II Fall 2010
The First Amendment states: “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble; and to petition the Government for a redress of grievances.”
Justice Black’s position: “The phrase ‘Congress shall make no law’ is composed of plain words, easily understood. [The] language [is] absolute. [Of] course the decision to provide a constitutional safeguard for [free speech] involves a balancing of conflicting interests. [But] the Framers themselves did this balancing when they wrote the [Constitution]. Courts have neither the right nor the power [to] make a different [evaluation].”
The Court has never accepted Black’s view. It has consistently held that “abridging” and “the freedom of speech” require interpretation, and that restraints on free expression may be “permitted for appropriate reasons.” Elrod v. Burns  
History of Free Speech
Three restraints:
(1) Licensing of the Press
(2) Constructive Treason
(3) Seditious Libel
(1) Licensing of the Press
– Everyone believes that the 1st Amendment bars #1
– In England no publication was allowed without a government granted license
– Remained in effect in England 1694 when the legislation expired and was not renewed due to being ineffective, difficult to enforce, and conductive to bribery
– It is widely accepted that the 1st Amendment was meant to, at the very least, to abolish such prior restraints on publication
(2) Constructive Treason
– Defined as (1) compassing or imagining the king’s death, (2) levying war against the king, (3) adhering to his enemies
– Mere written matter, as well as overt acts, could constitute treason
– Example: John Twyn was hanged, drawn and quartered for proofs of a book suggesting that the king was accountable to the people and that the people were entitled to self-governance
– Doctrine abandoned in 1720 because juries were reluctant to convict and death penalty was considered too harsh
(3) Seditious Libel
– Uncertain if framers meant 1st Amendment to bar prosecutions of #3
– Made criticizing the government a crime
– The principle was that the king was above criticism and that, therefore, statements critical of the government were forbidden
– Truth was not a defense to the crime because the goal was to prevent and punish all criticism of the government; if anything, true speech was perceived as worse because it could do more to damage the image and reputation of the government
– Theory was explained by Chief Justice Holt: “If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it.”
Colonial Background
– Formal legal restraints on expression were relatively rare
– Not more than a half dozen seditious libel cases
–  Most famous was Zenger in 1735, who was the publisher of the New York Weekly Journal, and was charged with seditious libel by the Governor of New York whom he had criticized
– Zenger argued unsuccessfully that the truth should be an absolute defense, the jury refused to convict
The Sedition Act of 1798
– The law prohibited the publication of “false, scandalous, and malicious writings or writings against the government of the United States,” (full text pg. 1021)
– The law did allow truth as a defense and required proof of malicious intent
– Federalists under John Adams aggressively used the law against the Republicans and was a major political issue in the election of 1800
– Act was repealed and the Supreme Court never ruled on its constitutionality but it was upheld without dissent by the lower federal courts and by three Supreme Court justices sitting on circuit
The Theory of Free Speech
(1) Truth
(2) Self-Governance
(3) Self-Fulfillment
(4) Civic Courage
(5) Distrust of Government
(1) Truth
– Argument that protecting freedom of speech is essential for the discovery of truth
– “Marketplace of Ideas” – the truth is most likely to emerge from the clash of ideas
– Mill wrote that an opinion may be true and may be wrongly suppressed by those in power, or a view may be false and people are informed by its refutation
– Criticisms:
– It is wrong to assume that all ideas will enter the marketplace of ideas, and even if they do, some may drown out others
– Wealthy have more access to media of communication than the poor
– It is wrong to assume that truth will necessarily trump falsehood; history shows that people are swayed by emotion more than reason
– Even if the truth ultimately prevails, enormous harms may occur in the interim
– Wellington wrote “the short run may be very long, that one short run follows hard upon another, and that we may become overwhelmed by inexhaustible supply of freshly minted, often  very seductive false ideas.”
– However, the response to the criticisms is that the alternative of the government determination of truth and censorship of falsehoods is worse.
– Inevitably the government will censor to serve its own ends such as silencing its critics, even a benevolent government will make mistakes as to what is true and false
(2) Self-Governance
– Freedom of speech is crucial in a democracy; Open discussion of candidates is essential for voters to make informed decisions in elections; it is through speech that people can influence their government’s choice of policies; public officials are held accountable through criticisms that can pave the way to their replacement.
– The Court has stated that the ability to criticize government and government officers as “the central meaning of the First Amendment” (NYT v. Sullivan)
– Political speech is at the core of that protected by the 1st Amendment
– Free speech enables self governance by informing the people
– If all you care about is self-governance than it will only protect political speech not private free speech such as art and literature
– Sunstein – 1st Amend principally about political deliberation
– Supreme Court has never accepted the view that the 1st Amendment protects only political speech, virtually every type of speech can have a political dimension
(3) Self-Fulfillment
– Speech is an essential aspect of personhood and autonomy
– Language is important for human beings it allows us to find ourselves
            – Bork – There is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.
– Can also undermine the autonomy and self-fulfillment of others, hate speech and pornography can demean and injure others
(4) Civic Courage
– Free speech makes us more tolerant as individuals and as a society
– Tolerance is a desirable value and protecting unpopular or distasteful speech is itself an act of tolerance
– Critics argue that society need not be tolerant of the intolerance of others
– Preventing harms should be more important than being tolerant of those who argue for them
(5) Distrust of Government
We should fear the govt more than any private speaker and this should make us more distrustful of the govt than private speakers. We may find our own speech suppressed.
– The checking valve – central part of 1st Amend is a deep rooted sense of mistrust of the govt
– If a society as wide-open and pluralistic as America is not to explode from festering tensions and conflicts, there must be valves through which citizens with discontent may blow off steam
Our Progression Through Free Speech:
(1) Content-Based Restrictions on High Value Speech (Sections B & C)
(2) Content-Based Restrictions on Low Value Speech (Section D)
(3) Content Neutral Restrictions (Section E)
(1) Content-Based Restrictions on High Value Speech (Sections B & C)(pg. 1028)
(1) Speech that Causes Unlawful Conduct
(2) Speech that Threatens
(3) Speech that Provokes a Hostile Audience Reaction
(1) Speech that Causes Unlawful Conduct (pg. 1028)
** Speech by me that encourages someone else to break the law (incitement)
– Balance the need for social order against protecting freedom of speech
– Advocacy of law violations is a powerful way to convey a message
– The Court has never held that such speech is completely protected by the 1st Amendment
– There was substantial criticism of the American involvement in WWI
– Significant opposition to the draft (330,000 evade the draft)
– Success of the Bolshevik revolution in Russia led to fears of uprising in the U.S.
Espionage Act of 1917 – Made it a crime when the nation is at war for any person
(1) willfully to “make or convey false reports or false statements with intent to interfere” with the military success of the United States or “to promote the success of its enemies”;
(2) willfully to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States”; or
(3) willfully to “obstruct the recruiting or enlistment service of the United States.”
Sedition Act of 1918 (repealed in 1921) – made it a crime for any person to say anything with intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause

f (2) imminent, (3) significant harm. 
Judge Hand criticism of immediacy test – immediate is in the eye of the beholder. There is no way Holmes’s test will bind judges.
Wigmore criticism – we need to consider the danger in aggregate, as a class of people.
First Red Scare – After WWI and the Russian Revolution
– Two-thirds of states enacted laws prohibiting the advocacy of criminal syndicalism and criminal anarchy and also made it a crime to display a red flag with seditious intent
Gitlow v. New York (pg. 1043) – The first case that indicated that the 1st Amendment applied to the states through its incorporation into the due process clause of the 14th Amendment, upheld a conviction under the New York criminal anarchy statute. Gitlow was convicted for publishing the “Left Wing Manifesto”.
– No evidence that the speech had any effects
– The Court rejected the clear and present danger standard in favor or a reasonableness approach.
– The reasonableness approach basically says that a law limiting free speech is still constitutional as long as it is 'reasonable.' (Also known as the dangerous tendency test.)
– That's a more inclusive standard than clear and present danger. The reasonableness approach will find laws constitutional even if they forbid speech that isn't a direct, imminent danger.
– Basically, this case said that laws limiting free speech can be constitutional as long as they are not arbitrary and unreasonable exercises of a States' police power.
– The Court said that a “State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press…does not deprive a State of the primary and essential right of self preservation.”
– The Court emphasized the need for deference to legislative judgments in this area. When a legislature expressly prohibits a certain category of expression, the judiciary must defer to the legislative judgment so long as it is reasonable. 
Holmes dissent – urged the application of the clear and present danger test. He stated that there was no present danger of an attempt to overthrow the government. “Every idea is an incitement.”
Whitney v. California (pg. 1047) – California statute forbids knowing belonging to a group that advocates unlawful force and violence. Upheld conviction – did not matter that Whitney herself tried to change the groups platform, it only matters what the group advocates.
– Applied reasonableness test
Brandeis concurrence adds the degree of evil (seriousness) requirement. “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 imminent”
Note 2. Brandeis states that the remedy to be applied is more speech not enforced silence. Counterspeech – the remedy for speech is more speech.
Second Red Scare – “Cold-War era”
Dennis v. U.S. (pg. 1052) – Petitioners were indicted for the violation of the Smith Act, to organize as the Communist Party to overthrow the U.S. Government. (1) Court makes it clear that advocacy of lawful political action is constitutionally protected; (2) the majority in Dennis adopts the Clear and Present Danger standard; (3) applies C&PD test but is watered down by using the “gravity” of the evil
 – courts must ask whether the gravity of the evil discounted by its improbability, justifies such invasion of free speech and is necessary to avoid the danger.
– If the threat is serious enough, it doesn’t have to be imminent or even likely to happen (probability) under the cost-benefit analysis.