The First Amendment

Freedom of the mind

The First AmendmentJudicial theories

September 29

The reason for the freedom

1. Search for TruthThe Enlightenment edition

2. Political ParticipationCampaign and voteCheck on government

3. Social StabilityThe safety valve effect

4. Individual GrowthThe Enlightenment version

The First Amendmentan artifact of freedom

1791

“Congress shall make no lawrespecting 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.”

Parsing the Third Amendment• Congress

• The Civil War’s 14th amendment • Government action v. private action

• shall make no law abridging• Prior restraint? Punishment after the fact?• What about enhancing free speech?

• the freedom• of speech

• conduct - gathering and distributing?• conspiracy? intimidation? threats? • symbols?• entertainment, art, porn, obscenity?

• or of the press• how is the role of the press related to freedom?

First

Supreme Court Theoriesmake no law abridging freedom

• Bad Tendency• Clear and Present

Danger• Balancing• Symbolic conduct• Positive• Location• Categories

Better change before seeing pretty Lois, Clark

Bad tendency theory

Some have thought, particularly in the 19th century that speech that tends to do harm should not be protected by the First Amendment. This creates a very short range of protection

and is a somewhat dated idea today. But you can see it working in cases where the court speculates about potential evils that might happen if the speech is tolerated.

evilspeech / press

Clear and present danger

Freedom of speech and press extends to a point where there is the imminent danger of lawlessness that is likely to succeed and which government has a duty to prevent. Suggested by Justice Holmes in 1919 as a way to

expand the limited protection afforded by a bad tendency approach.

evil

Balancing theory

Free speech rights should be weighed against other values in the interest of justice.

Balancing gives rise to interesting problems: How do you assign weights? Should the First Amendment be in a preferred

position? How compelling should be the need? How closely should you scrutinize?

SpeechBeauty

Balancing Minimum scrutiny

The content of the speech is of no particular political or social value, such as obscenity,child pornography, “fighting words,” or conspiring to commit a crime. Some government interest.

Intermediate scrutiny The government’s concern is primarily about conduct

unrelated to the content of the speech and the speech is especially hardy (e.g. advertising) or the speech is diluted by action (e.g. marching in a demonstration). Government’s interest must be “substantial.”

Strict scrutiny The content of the speech is central to the First

Amendment’s concerns about democracy. See Cohen v. California. Government’s interest then must be “compelling.”

Symbolic speech theory

Expressive conduct should be treated differently from expressive speech. Control of the conduct can be allowed, even if it abridges the speech, but only if the regulation controlling the conduct is limited to that which is necessary to further a substantial government interest unrelated to the expression.

Positive theory

Free speech is a right that requires government to be energetically active in its efforts to get information to people and to make sure there is always a public forum for the exchange of ideas and controversy. For example: Labeling on food and medicine SEC rules on disclosure to investors Freedom of Information requirements for government Open government meetings and courtrooms

Location and forum theories

The First Amendment protects only speech and press, it does not protect the time, manner and place of speech or press from reasonable restrictions.

Closely related are theories that make distinctions based on the function of the place, for example, schools, military bases and prisons cannot be absolutely free places.

Public, limited, non-public and private forums.

Speech category theory Not all speech is of equal value. Some types of speech are

more important than other types of speech. At the core of the First Amendment is “political speech.” It gets the greatest amount of protection. Other forms of speech are protected to a lesser extent depending on their value to society. Can some speech types be completely unprotected?

obscene speech imminently dangerous speech speech created by abusing children (child porn, for example) blackmail, extortion, perjury, false advertising, conspiracy fighting words heckler’s veto

A First Amendment model

Core Speech“political”

Clear & present danger

TimeMannerPlace

AdvertisingEntertainmentBroadcasting

The First Amendment

Freedom of the mind

The First AmendmentDisruptive SpeechAnd prior restraint

October 1

Getting down to cases The meaning of the First Amendment

Near v. Minnesota (1931) - an injunction is a prior restraint

Sitting left to right: McReynolds, Holmes, Hughes, Van Devanter, Brandeis.

Standing left to right: Stone, Sutherland, Butler, Roberts

Near v. Minnesota (1931)

Facts Saturday Press was a

newspaper largely devoted to publishing scandal - not all of it true. It was anti-Catholic, anti-Semitic and racist and in violation of a state statute.

Issue Is a state statute providing

for the permanent injunction of a newspaper consistent with the First Amendment?

Talking points

The doctrine of prior restraint William Blackstone

Attacking a state law on federal grounds Jurisdiction of the Supreme Court

Any person who shall be engaged in the business of regularly publishing a malicious, scandalous and defamatory newspaper is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined.

Minnesota Statutes, 1927, 10123-1 to 10123-3. Jay Near

On to Miami

Abridging speech

Prior Restraint? What’s the alternative?

Sir William Blackstone and the meaning of freedom of the press:

“No Prior Restraint”

Alternatives to prior restraint

Criminal liability for harms caused by words Contempt of court Criminal speech

fines, jail, forfeiture Civil liability for harms

caused by words Torts Breach of contact

A legal doctrine is generally not developed in a single case

- but over time

Schneck v. United States (1919) Abrams v. United States (1919) Gitlow v. New York (1925) Whitney v. California (1927) Dennis v. United States (1951) Yates v. United States (1957) Brandenburg v. Ohio (1969)

EvilEvilEvilEvilEvilEvilEvilEvil

For example: A clear and present danger From Schenck to Brandenburg, from 1919 to 1969

Clear and present dangeran ongoing conversation

Louis Brandeis

Oliver Holmes Hugo Black

Learned Hand

Brandenburg v. Ohio (1969) Facts

Armed KKK organized a speech and rally on a farm Burning cross, white hoods, calls for

“revengence” The episode was televised by local TV

news KKK leader, Clarence Brandenburg, was

arrested for violating an Ohio statute forbidding the advocacy of terrorism

Issue Does a statute forbidding or punishing as a

crime the advocacy of terrorism conflict with the First Amendment guarantee of free speech?

Hamilton County, Ohio, 1964

Talking points

Court reverses Brandenberg’s conviction and finds unconstitutional the Ohio Criminal Syndicalism Act.

Court adopts in this non-war context the Holmes/Brandeis view: Political/social speech - however hateful and offensive -is protected from punishment unless there is imminent danger of lawless action.

This is the Incitement Standard - where to draw the line. When the danger is clear and present.

EvilImm

inent

incitement

Brandenberg v. Ohio (1969)

“... constitutional guarantees to not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”

A First Amendment model

Core Speech

Clear & present danger

TimeMannerPlace

AdvertisingEntertainmentBroadcasting

National securityPersonal security

Imminent and likely danger

Foreseeable danger

October 6

National Securityclear and present danger

New York Times v. The United Sates (1971)

The United States v. Progressive

Daniel Ellsberg

New York Times v. U.S.

Facts Both the Times and the Washington Post publish

parts of an official (but secret) history of U.S. involvement in Vietnam. Not a pretty picture for the U.S. Government seeks to enjoin publication

Issue Does the First Amendment protect the publication of a

secret, embarrassing report leaked from the Pentagon?

Talking points

The presumption is that a prior restraint is unconstitutional, see Near v. Minnesota, but Some exceptions

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not “protect a man from an injunction against uttering words that may have all the effect of force. These limitations are not applicable here.”

- Charles Evans Hughes

• None of these apply here. So the issue is how clear and present is the danger? Is the danger sufficient to overpower a presumption against prior restraint?

• No. The state has not proven imminent danger to the USA.

U.S. v. Progressive

U.S. v. Progressive magazine

Facts Progressive plans to publish about how easy it is to

find information in the USA for building a hydrogen bomb.

Atomic Energy Commission objects, saying there are too many details in the article. Federal statute prohibits publication. AEC wants the courts to enjoin publication.

Issue Is the risk so great that the speech should be

prohibited?

Talking points

Your are the judge How do you want to be wrong?

Your mistake was to give too much protection to free speech and the world blows up

Your mistake was to give to little protection to free speech and the world is saved

What if you really get it wrong? Your mistake was to overestimate the danger and

sabotage the First Amendment when, as it turns out, nothing much would have happened anyway.

Personal security

Rice v. Paladin Enterprises Instructions to a killer

Soldier of Fortune Advertising killers for hire

More than once

Olivia N. v. NBC Imitation of a rape scene

no incitement not foreseeable

Personal security

Hateful speech Fighting words True Threats Compelled Speech

The Weirum case

Wrongful death case, but the issue is “negligence” (maybe even edging toward recklessness). Duty

Arising from history, custom and practice, morals and justice

To act as a reasonably prudent person in avoiding foreseeable harm to others

Breach Causation Damage

Attributable to the breach

The Real Don Steele

Van Nuys to Thousand Oaks

KHJ

BossAngeles

end