1)Sedition Act of 1798

1)Sedition Act of 1798

Intro

1)Sedition Act of 1798

  1. Federalists enacted to silence dissenting Republicans
  2. Mitigating
  3. Truth as defense
  4. Malicious intent

2)First SCOTUS case: Espionage Act (1917)

  1. WWI

3)Rationales for 1A

  1. Marketplace of ideas
  2. Search for truth
  3. Ex.: Holmes dissenting in Abrams v. US
  4. Against
  5. Conduct can lead to truth too, but that can be banned
  6. Pro
  7. John Stuart Mill
  8. Greenawalt: gov pooly positioned to reg
  9. Other
  10. Market failures?
  11. Self-governance
  12. Town meeting conception (everyone speaks equally)
  13. Meiklejohn
  14. Against
  15. Governance is only small part of our life; why not protect art?
  16. Pro
  17. Sunstein: derp political deliberation herp derp
  18. Other
  19. Bork: must be cut off because economic activity is more like art than art is like political speech
  20. This is obviously wrong in that two of these things are speech and one is an action
  21. Self-fulfillment/autonomy
  22. Against
  23. Bork: people can find self-fulfillment in a lot of things, including commerce, sex, etc.—doesn’t distinguish speech without arbitrary value judgment on legitimacy of certain kind of self-fulfillment
  24. Check on abuse of power
  25. Warranted bc gov unique ability to employ legalized violence
  26. Safety valve
  27. Permits conflict without “might-makes-right” artificial conclusions
  28. Shaping a tolerant, free society
  29. Demonstration of societal self-restraint when confronted with offensive/disagreeable ideas
  30. Culture that prizes liberty inherently breeds mistrust of government and courage to confront evil

4)Two important distinctions

  1. Content based v. content neutral
  2. Examples of content based
  3. Confidential info
  4. Forbidding hiring of teachers that advocate violent overthrow
  5. Display of swastika
  6. Examples of content neutral
  7. Noisy speeches near a hospital
  8. Banning billboards
  9. Requiring disclosure of names of leafleters
  10. High value v. low value
  11. Examples of low value
  12. Obscenity
  13. Commercial advertising (sort of)
  14. False statements of fact
  15. High-value
  16. Most others

Content-based restrictions: Dangerous Ideas and info

1)Four types of problematic expression

  1. Induces unlawful conduct
  2. Threats
  3. Hostile audience reaction
  4. Confidential info

2)Contrast

  1. Clear and present danger test
  2. Likely and imminent harm test

Induces unlawful conduct

1)Shaffer v. US (9 circ 1919)

  1. Facts
  2. Shaffer mails antiwar book
  3. Gov prosecutes under Espionage Act
  4. Court
  5. Statute does not ban expression, but rather expression that is calculated to cause certain response
  6. Intent: Natural and probable consequences

2)Masses Publishing v. Patten

  1. Learned Hand, interpreting Espionage Act, distinguishes between speech against legitimacy of a law from actively urging disobedience to that law
  2. Hand’s attempt at a clean rule: express advocacy of lawbreaking is unprotected; anything that is not express is protected (effect on hearers is only to counsel them to violate)

3)Shenck v. US (1919)

  1. Facts
  2. Pamphlet: “Assert your rights” against the draft; propagated by “mercenary capitalist press”
  3. Court
  4. Question = words used in circumstances of such nature as to create clear and present danger that they bring about substantive evils that Congress has right to prevent
  5. Question of proximity and degree
  6. Things that might be said in peace will not be tolerated in times of war
  7. Notes
  8. Twin doctrines of bad tendency and constructive intent (nat/prob conseq)

4)Frohwerk v. US (1919)

  1. Facts
  2. Missouri German newspaper talked about how bad draft was
  3. Court (Holmes)
  4. Draft is immoral hints strongly that one should defy it
  5. Circumstances exacerbate likelihood of harm
  6. Counseling crime can be criminalized
  7. Conviction affirmed

5)Debs v. US (1919)

  1. Facts
  2. Eugene Debs (socialist candidate) expressed praise for draft dodgers
  3. “You need to know that you are fit for something better than slavery and cannon fodder”
  4. Court (Holmes)
  5. Can infer from words that at least incidental effect of speech was to oppose war
  6. 1A claim “disposed of in Shenck”
  7. Notes
  8. Harding pardons Debs in 1921

6)Goldstein v. US

  1. Robert Goldstein publishes movie accurately depicting Wyoming Valley Massacre where Brits bayonetted women and children
  2. Gov prosecutes because that might undermine confidence in Brits as current wartime ally
  3. Conviction

7)Abrams v. US (1919)

  1. Facts
  2. Russian anarchist immigrants distribute pamphlets from window
  3. Military police arrest them
  4. TC
  5. I hate anarchists
  6. SCOTUS
  7. No 1A claim under Schenck
  8. Holmes dissenting
  9. Clear and imminent danger test
  10. this speech is not likely to be effective; thus, 1A protects it
  11. Belittles “Silly pamphlet” by “unknown man”

8)Gitlow v. US (1925)

  1. Facts
  2. Δ published paper for Left Wing Section of Socialist Party USA
  3. Advocated violent overthrow
  4. Court (Sanford)
  5. Decides it doesn’t like as-applied challenges because when legislature determines that certain class of speech tends to bring about violent revolution (apparently a legit interest in suppressing) it does not matter whether, in the actual facts, the statement would bring about that harm.
  6. Where language advocating specific harm is prohibited by legislature (as here: violent overthrow/assassination), natural and probable effect is not applicable
  7. Natural and probable test only applicable where statute generally prohibits a substantive evil like Schenck (obstructing the draft), and the effect of language is up to interpretation (does saying draft is bad actually undermine it? = then look to nat/prob consequences) (question: how do you determine a statute specifies the offense in nonspeech or nonpress terms)
  8. If legislature decides that conditions exist, then enact statute on those grounds, no clear/present danger test; if legislature enacts statute that only applies IF certain conditions exist, then clear/present danger test
  9. Thus, there is no intent element in as-applied cases where legislature has specifically prohibited specific language because of certain harms.

9)Whitney v. CA (1927)

  1. Facts
  2. Δ attends communist convention
  3. Sponsors moderate resolution; is defeated
  4. Gets arrested for criminal syndicalism
  5. Participated in commy convention
  6. Court
  7. United action poses more danger than individual action
  8. Individual advocacy of violent overthrow is illegal
  9. Conviction upheld
  10. Brandeis concurring
  11. Liberty is both means and end; essential to happiness
  12. SELF-FULFILLMENT RATIONALE
  13. Deliberative process
  14. Public discussion
  15. Apply clear/imminent(Brandeis introduces seriousness element to intensify clear/present danger test)
  16. ONLY if there is no time to diffuse danger in interim
  17. Remedy for bad speech is more speech
  18. Note
  19. Brandeis and Holmes just kept asserting that the clear/present danger test was settled law, even tho the majority ignored it 6 times in a row and came to results contrary to it… their outrageous dissent tactic saved free speech

10)Dennis

  1. Facts
  2. Statute: can’t advocate violent overthrow
  3. Δ Advocated overthrow when Propitious moment arises
  4. Court
  5. Conspiracy to advocate can be prohibited just as actual advocacy
  6. Gravity of evil discounted by improbability of the harm (adopting Hand’s formulation from lower court)
  7. Frankfurter concurring
  8. Balancing of security interest with free speech
  9. This should be left to legislature.. what could go wrong?
  10. Jackson concurring
  11. Judges equipped to balance interests in small cases like a hot-headed speech on street corner, but not major issues like “well-organized conspiracies” like commie party
  12. Black dissenting
  13. This case abandons clear/present danger
  14. Douglas dissenting
  15. If the books from which the Party draws are not banned (and the majority does not ban them) why does using those books become a crime?
  16. Marketplace of ideas has already destroyed the commies in the US

11)Yates

  1. Facts
  2. Same as above
  3. Different commie party members
  4. Court (Harlan)
  5. Distinguish between advocacy of abstract concept of revolution, and actively seeking to ignite revolution
  6. Distinction between advocacy of belief and advocacy of action

12)Brandenburg v. Ohio (1969)

  1. Facts
  2. Kkk members burn cross
  3. Only ones there
  4. Not a “revengent organization”
  5. Court
  6. Whitney thoroughly discredited
  7. TEST: IMMINENT ACTION THAT IS LIKELY TO MATERIALIZE
  8. Statute that fails to draw distinction between advocacy of belief and advocacy of action is unconstitutional
  9. Black concurring
  10. Keep the “clear and present danger” test away from me. Otherwise, concur
  11. Douglas
  12. Clear/present danger test has no place in 1A jurisprudence: it is too subject to manipulation
  13. Line between permissible and impermissible is that between ideas and action
  14. THE BRANDENBURG TEST
  15. Express advocacy
  16. Imminent harm
  17. Likely harm
  18. Notes
  19. Chilling effect
  20. Pretext effect
  21. Crisis effect

13)Claiborne Hardware

  1. Facts
  2. Catch you going into any of those racist stores, will break your damn neck
  3. Court
  4. Advocacy is not the same as inducement
  5. Impassioned plea; emotional rhetoric

14)Rice v. Paladin (1997)

  1. Facts
  2. Hitman instruction manual
  3. Hitman follows instructions, kills victim
  4. Court
  5. Brandenburg does not control
  6. Publisher is liable bc intended to be used in that manner

15)Humanitarian Law Project (2010)

  1. Facts
  2. Legal advice to terrorist group
  3. Statute prohibits material support
  4. Court (Roberts)
  5. Distinguish Scales (cannot punish mere membership even if some activities of group are illegal)
  6. Roberts claims material support is different from mere membership
  7. Claims advice is material support
  8. Problem: But is material support in form of speech really different from mere membership?
  9. Resources are fungible; material support for legitimate frees up resources for illegitimate
  10. Upholds statute
  11. In natsec arena, defer to political branches evaluation of danger

Speech that threatens

1)Bridges

  1. Facts
  2. Union boss threatens to strike if court enforces order
  3. Held in contempt
  4. Court
  5. Not imminent (maybe serious)

2)Watts

  1. Facts
  2. First person in my sights will be LBJ
  3. Court
  4. Political hyperbole is protected

3)Planned Parenthood v. Am. Coalition of Life Activists

  1. Facts
  2. Wanted posters for abortionists
  3. Court
  4. Constitutes threat bc communicated with intent to intimidate with harm
  5. Dissent
  6. A true threat warns of violence that the speaker controls

Speech that provokes a hostile audience reaction

1)Terminiello

  1. Guy agitates audience
  2. Jury instructed “stirs public to anger…”
  3. Stands for prop that speech cannot be banned bc offensive

2)Cantwell v. CT

  1. Facts
  2. Jehovah’s Witness plays recording that attacks catholic church
  3. Convicted of breach of peace
  4. Court
  5. Effort to persuade willing listener
  6. Conviction overturned

3)Feiner v. NY

  1. Facts
  2. Guy speaking to audience, encourages blacks to stand for rights
  3. Calls Truman a bum
  4. Cops arrest bc audience getting roudy
  5. Court
  6. Where speaker passes bounds of persuasion and undertakes incitement to riot, cops can intervene
  7. Black Dissenting
  8. If goal is to protect speaker, not silence dissent, then cops should exhaust all options to protect speaker first

4)Kunz

  1. Permitting scheme for street worship invalid bc too much discretion in granting permits

5)Edwards

  1. Opposite result of Feiner
  2. Students sing/protest discrimination at State House grounds
  3. Court: “far cry” from Feiner bc no threat of violence
  4. Dissent (Clark): southern communities are volatile

6)Cox v. LA

  1. Blacks/rights activists march on sidewalk; will not disperse when ordered
  2. Court: students were not violent, no signs of eruption, call for sit-in does not deprive speech of protected status

7)Gregory v. Chicago

  1. Δ leads march to Daley’s home
  2. Spectators yelled n*.. at them, threw stuff
  3. Cops told them to leave; arrested when they refused
  4. Court: conduct was not disorderly; not enough evidence to support due process

8)Chaplinsky v. NH

  1. Facts
  2. JW tells complainant that he is a goddamn racketeer
  3. State courts construed statute very narrowly as words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed”
  4. Court
  5. Test: ordinary man of common intelligence would understand words likely to cause addressee to fight
  6. Upholds; narrow statute to prevent fighting words
  7. Notes
  8. INTRODUCE HIGH-VALUE/LOW-VALUE DISTINCTION

9)Gooding v. Wilson

  1. Facts
  2. “White son of a bitch I’ll kill you”
  3. Statute: opprobrious words or abusive language
  4. Court
  5. Even if statute was constitutional with regard to Δ (pretty clearly threat or fighting words), it was unconstitutionally overbroad: state courts had not narrowed it

10)Skokie case

  1. Facts
  2. Village gets injunction against Nazis wearing uniforms or swastika while marching in Skokie
  3. SCOTUS
  4. Reverses injunction;

11)Snyder v. phelps

  1. Court (Roberts)
  2. Self-governance rationale to explain “profound national commitment”
  3. Leads to more protection for “speech on public issues”
  4. Speech on public issues = “fairly considered as relating to any matter of political, social, or other concern to community”
  5. Distress turns on content conveyed, not any kind of interference with the funeral
  6. Alito dissenting
  7. “vicious public assault” (note the recurring argument about speech as assault)
  8. Emphasizes other venues

Expression that discloses confidential information

1)Examples

  1. Individual interest in privacy
  2. Right to a Fair trial
  3. Rehabilitation of juvenile offenders
  4. National security

2)Landmark Comms v. VA (1978)

  1. Facts
  2. Newspaper publishes fact that Judicial Commission was contemplating investigating a particular judge
  3. Court
  4. Unconstitutional bc less restrictive measures: forbid Commission participants from divulging sensitive info
  5. Even if no less restrictive measures, “neither the Commonwealth’s interest in protecting the rep of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here”

3)Nebraska Press v. Stuart (1976)

  1. Facts
  2. Judge issues injunction against newspapers publishing info indicative of guilt of accused murderer
  3. SCOTUS (Burger)
  4. Lawl no
  5. Court has serious responsibility to protect impartial jury, but the injunction as a means is foreclosed by 1A unless all other means are exhausted
  6. Prior restraints do immediate and irreversible damage
  7. Brennan concurring
  8. Prior restraint is ALWAYS impermissible means to protect impartial jury trial

4)NYT v. US; US v. WaPo (1971)

  1. Facts
  2. Newspapers published exerpts from top secred DoD study of Vietnam war
  3. Court
  4. Prior restraint comes to court with heavy presumption against validity
  5. Gov did not meet that burden
  6. Black, Douglas concurring
  7. The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic
  8. Douglas, Black concurring
  9. Disclosures may have serious impact. Tough. Not a basis for sanctioning a previous restraint on the press
  10. Highly relevant to debate in progress
  11. Brennan concurring
  12. 1A tolerates absolutely no prior judicial restraints of press predicated upon surmise or conjecture that untoward consequences may result
  13. Stewart, White concurring
  14. Separation of powers argument: if this should be hidden from public responsibility rests with executive foreign powers, not judiciary
  15. White, Stewart concurring
  16. Separation of powers argument: executive needs congressional approval to itself impose prior restraints in name of natsec
  17. Might still successfully pursue post hoc criminal conviction
  18. Burger dissenting
  19. Meh, the people can wait to learn about this, the Government deserves a chance to defend it’s secrecy
  20. Harlan, Burger, Blackmun dissenting
  21. In foreign affairs, natsec = sudo for executive branch. First Amendment can suck it
  22. Blackmun dissenting
  23. 1A, after all, is “only one part of an entire Constitution”

5)Haig v. Agee

  1. Facts
  2. Agee was ex-CIA
  3. Disclosed some CIA info
  4. Had passport revoked
  5. Court
  6. Gov can prevent publication of location of troops (quoting Near)
  7. Notes
  8. Book: inconsistent with pentagon papers?
  9. Me: no, that didn’t involve suppressing an ex-employee who had himself obtained info illegally; that was just newspapers with second-hand info

Trans-substantive doctrines Overbreadth, Vagueness, Prior Restraint

Overbreadth and Vagueness

1)Gooding v. Wilson (1972)

  1. Facts
  2. During protest, cop tries to move Δ from where Δ was at
  3. Δ: “White son of a bitch, I’ll kill you”; “Son of a bitch, I’ll cut you to pieces”
  4. Convicted for “opprobrious words”
  5. State
  6. GA courts construed statute very narrowly to only apply to actual fighting words
  7. Court
  8. Does not matter whether words Δ used could be constitutionally prohibited, only if the statute as a whole was unconstitutional as construed by GA courts
  9. Examining the decisions that state claims limit statute to fighting words do NOT, in fact, limit the statute as the courts had in Chaplinski
  10. words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed”
  11. examples of “clearly” NOT fighting words
  12. waking people up by shouting loudly “Get the Goddamn bedrolls out, let’s see how close we can get to the goddamn tents” (wut?)
  13. “You swore a lie” (wut?)
  14. “God damn you; why don’t you get out of the road?”
  15. Burger dissenting
  16. Court should evaluate constitutionality by language; not by how state courts have construed it
  17. Notes
  18. Explanation of as-applied vs. facial on bottom of p131

2)Broadrick v. OK (1973)

  1. Facts
  2. State law restricted political activities of civil servants
  3. Δs convicted for soliciting funds for political candidates
  4. Δ arg
  5. Δs concede that state can properly restrict raising funds for candidates, but that statute ALSO restricted civil servants from wearing buttons or bumper stickers
  6. Court
  7. Most of statute regulation is legitimate; whatever is not can be dealt with on a case-by-case basis
  8. Brennan dissenting
  9. There is some element of substantial overbreadth inherent in the overbreadth doctrine (bc not just any conceivable unconstitutional application is sufficient to invalidate)
  10. Wholly unjustified; no explanation of why OK statute was not substantially overbroad

3)LA City Council v. Taxpayers for Vincent (1984)

  1. Court
  2. Realistic danger that statute will significantly compromise recognized 1A protections of parties not before the court for facial challenge on overbreadth
  3. Notes
  4. Maybe overbreadth real analysis is not substantial overbreadth but narrowest tailoring
  5. ALWAYS BRING BOTH VAGUENESS AND OVERBREADTH
  6. Vagueness =” person of common intelligence must necessarily guess at its meaning and differ as to application” (Connally v. Gen. Construction)

Prior Restraint

1)Lovell v. Griffin (1938)

  1. Facts
  2. Statute prohibits circulating circulars without a license
  3. Δ convicted for circulating JW lit
  4. Court
  5. Yeaaahhh no.
  6. Prior restraints strike at heart of foundation of freedom of press

2)Lakewood v. Plain Dealer Publishing (1988)

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