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Constitutional Law II: First Amendment
West Virginia University School of Law
Bastress, Robert M.

Bob Bastress
Fall 2011
Constitutional Law II Outline
Chapter 1:
Origins and Initial Development of Freedom of Speech
First 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.”
v  Class Notes
Ø  Experience in England created a strong presumption that those freedoms would be carried over here
Ø  Very little debate or consensus about what the scope of these freedoms (of speech) should be.  Other than establishing big zones, the framers didn’t debate lots of specific issues
Ø  Alien and Sedition Act: Big deal. Republican press was scandalous in its attacks on federalism.  So the federalists, having all the power, enact these laws.  These laws gave congress the power to deport anyone that does this shit and also raises the age of citizenship of aliens from 5 to 14 years.  Alien part of the law was never used.  Rather, the sedition part became a big issue. The Sedition Act made it a crime to publish “false, scandalous, and malicious writing” against the government or its officials. It was enacted July 14, 1798, with an expiration date of March 3, 1801 (the day before Adams' presidential term was to end).
§  Supreme Court never ruled on its constitutionality, but Marshall thought it was unconstitutional
§  This was the only first amendment debate for a long time
Ø  Principal speech issue prior to the civil war regarding slavery.
Ø  After the war, reconstruction statute imposed marshal law which became a speech issue
Ø  After the war, three developments of speech:
§  Absolutely no freedom of speech from blacks.  Not by the government, but by vigilantes
§  Constock Act of 1873: Crusader against anything related to sex.  Enforced this status.  Eliminated the distribution (via mail) of anything relating to sex, basically.
§  Reaction to the pressures created by industrialized society (hard economic times, lots of “funny” immigrants with varying religions). 
·         Hostile reactions to three different groups:
¨       Immigrants: an immigrant anarchist shot president mckinley
¨       Radicals (usually anarchists, socialists)
¨       Labor movement: if you were pro labor, you were considered some sort of radical.
Ø  Lots of nationalism leading up to world war I
Ø  1918: Made another sedition law, very similar to the first one.  Not in effect very long. 
§  Lots of intolerance of anti-government, anti-war speech
§  Did not end after the war, actually got worse (Ex. Palmer raids)
Ø  After WWI, cases came along that marked the first time the supreme court started addressing first amendment analysis
Ø  The red scare came after
Ø  Particular issues tend to dominate particular eras
§  1918-1930: Red Scare I (anti-communism sentiment)
§  1930-1945ish: Jehova’s Witnesses cases (mostly dealing with public forum issues)
§  1948-1970’s: Red Scare II (litigation regarding fear of communism)
·         Ex. Smith act, Communist Party Act of 1950, Loyalty Oath Cases, McCarthy Era
§  1955-1975: Civil Rights Era Cases (mass gatherings, resisting arrest, time-place-manner litigations, substantive issues about civil rights)
§  1975-?: Vietnam war era stuff (anti-war protests, etc)
§  1965-now: Issues of mass media (pornography, campaign finance)
Ø  Takeaway
§  Almost all first amendment litigation occurred recently
The Origins of Freedom of Speech and Press
David S. Bogen
42 Maryland Law Review 429 (1983)
v  The most prominent sources for understanding the guarantee of the First Amendment:
Ø  Parliamentary Privilege of Freedom of Debate
(“Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress” – Articles of Confederation)
§  Before the American Revolution the only mention of “freedom of speech” in the basic charted of any colony referred to the rights of legislators during sessions of the legislator (coined “parliamentary privilege”).  But even parliamentary privilege was not secure until after Charles I was beheaded in 1649 and William and Mary took over
§  In the colonies, the local assemblies attempted and succeeded in following Parliament in securing the same privilege for themselves.  This can be seen in the wording of both the Massachusetts Declaration of Rights in 1780 and the Articles of Confederation
Ø  Abolition of Prior Censorship in England
(“The liberty of the press…consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matters when punished” – William Blackstone)
§  The abolition of prior censorship of the press in England nearly a century before the drafting of the first amendment gave rise to the idea that participation in political debate should be extended from among the privileged few (parliamentary privilege) to the general populace
§  Centuries of press regulation in England and the abolition of prior censorship there impressed upon Americans the need for protection against prior restraints.  England’s licensing system for publications was the mechanism for implementing prior restraints. 
·         A “prior restraint” is an administrative or judicial order forbidding certain communications when issued in advance of the time that such communication is to occur
Ø  Letters of “Cato”
(“Freedom of Speech is the great Bulwark of Liberty; they prosper and die together” – Cato’s Letters No. 15)
§  As the mass media grew in the colonies, it became a vehicle for both the british government and its opponents.  The colonists, growing increasingly disenchanted with british rule, paid particular attention to the writings of these critics to the british government. 
§  Cato’s letters were among the most familiar of these types of criticisms that were printed in America.  They focused upon the relationship between speech and the political process and the concern about the procedures of speech limitation drawn from parliamentary privilege, and united these lessons with the extension of rights of speech to all people derived from the abolition of censorship
¨       In sum, Cato’s letters proposed that truthful criticism of public measures is not punishable, and that to assure inquiry and discussion it is important both to avoid prior censorship and to apply subsequent punishment with extreme caution
Ø  Theory of Natural Rights
(“We hold these truths to be self evident: that all men are created equal, that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness: that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed” – Declaration of Independence)
§  The Doctrine of Natural Rights, which insisted that government must justify any restrictions on the freedom of action which predated the formation of society, contributed to the rise of freedom of speech.
·         Proponents of natural rights claimed that only speech that acts “to the prejudice of another” shall not be protected, but they failed to define what that is or who should make that determination
Ø  Growth of Religious Toleration
(“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” – U.S. Constitution, Amendment I)
§  Although freedom of religion, another inalienable right, receives separate mention in the first amendment, it is intimately tied to the natural rights background of freedom of speech.  The task o

the Ratification of the Bill of Rights
Chapter 2:
Unlawful Advocacy and Incitement
Class Notes:
v  Clear and Present Danger test (Holmes test)*: “The question in every case is whether the words used 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 the state has a right to prevent.”
Ø  Three factors taken into account (as articulated by Brandeis in Whitney v. People of State of CA):
§  There must be a likelihood that the speech will cause incitement (shuffled under LIKELY)
§  The danger of incitement must be imminent (shuffled under PRESENT)
§  The danger of incitement must be serious (shuffled under PRESENT)
v  Incitement Test (Learned Hand’s Test): As long as one stops short of urging upon others that it is their duty or their interest to resist the law, then he or she is protected by the First Amendment.
Ø  The rule is based entirely on the words said
Ø  It’s better because it gives people a clearer idea of what the law actually is
A. Introduction
v  The Supreme Court’s first significant attempts to define and articulate a freedom of expression occurred after WWI
v  Most of the cases in this chapter involve “political speech”
v  The main doctrinal question presented in this chapter addresses the extent to which government may prohibit speech that incites others to commit a crime
B. Origins of First Amendment Doctrine: Post World War I Developments
P. Smith, A People’s History of the United States:
America Enters the World (1985)
v  With the entry into WWI, President Wilson and his cabinet determined on a policy of suppression toward those who opposed the war in the name of national unity and patriotism
Ø  …even though the country was actually deeply divided
v  Tried to greatly expand the criminal code to punish any activity that hurt national unity
Ø  Title I. Espionage
§  Broadly defined “crimes of obstruction or conspiracy that were likely to interfere with the execution by the administration of the acts of Congress”
·         Was the harshest and most oppressive of all measures directed at suppressing opposition of the administration’s policies
Ø  Title XII.  Use of Mails
§  Unmailable matter included “letter, writing, circular, postal card…newspaper, pamphlet, book…in violation of any of the provisions of this act” or any material “advocating or urging treason, insurrection, or forcible resistance to any law of the U.S.”
v  Espionage Act + Trading with the Enemy Act + Sedition Act of 1918
Ø  Plugged every last whole through which free speech might escape
Ø  Designed to go after “pro-Germanism, pacifism, and “high-browism”
Ø  A lot of people who were openly against the war went to jail
v  The assault on free speech was not limited to the federal government. States and municipalities strove to outdo each other in patriotic zeal by persecuting their fellow citizens
v  Academia was stagnated as professors were forced to express patriotic zeal