I.Introduction to Freedom of Speech

a.Breaking Down the First Amendment Language

b.The History of Free Expression in England

c.The First Challenge to Free Expression

d.Rationale for Free Expression

II.The Suppression of Dangerous Ideas and Information

a.Expression that Induces Unlawful Conduct

b.Speech that Threatens

c.Expression that Provokes a Hostile Audience Reaction

d.Expression that Discloses Confidential Information

III.Overbreadth, Vagueness and Prior Restraint

a.Overbreadth and Vagueness

b.Prior Restraint

IV.Content-Based Restrictions: Low-Value speech

a.General

b.False Statements of Fact (Defamation)

c.Non-newsworthy disclosures of private information

d.Commercial Speech

e.Obscenity

f.The Lewd, The Profane, and The Indecent

g.Hate Speech and Pornography

h.Final Thoughts

V.Introduction to Content Neutrality

a.Hypo: Three Different Statutes and the Proper Level of Scrutiny

b.General Principles

c.Case Law

d.Symbolic Conduct

I.Introduction to Freedom of Speech

  1. Breaking Down the First Amendment Language
  2. Congress: The court’s read “Congress” to mean “the federal government” (agencies, courts, etc.)
  3. Similarly, through the incorporation doctrine (14th amendment), the 1st amendment is applied against state government’s as well
  4. Shall make no law: government action beyond a law passed congress may fall within the first amendment (ordinances, etc.)
  5. Speech or Press: Written, oral, telephone calls, electronic communication, nude dancing
  6. The point is that these terms are read very broadly
  7. Justice Breyer’s Constitutional objectives:
  8. Democratic Self-Government;
  9. Dispersion of power
  10. Individual Dignity (though protection of individual liberties);
  11. Equality before the law
  12. The Rule of law itself
  13. The History of Free Expression in England
  14. Throughout English History, three forms of restraint were commonly employed to restrict speech
  15. Licensing: The government gives printers licenses; to print without one is a crime
  16. Constructive Treason: Any written matter that is against the King (alongside overt acts) is considered treason.
  17. The case of John Twyn shows a man convicted of treason after police searched his home and found proofs for a book suggesting that the King was accountable to the people. He was hanged, drawn and quartered.
  18. Seditious Libel: Saying something, true or not, about someone or an institution considered a crime.
  19. The First Challenge to Free Expression
  20. The Sedition Act of 1798
  21. U.S. was on the verge of war with France and the Federalists were in fear of some of the ideas of the French Revolution. Thus, they past this law, which stated that attacks on the government that were malicious and false were against the law. Truth was a complete defense and the law required malicious intent (thus, abolishing the problems with the English Common Law of seditious libel). It was enforced vigorously against Republicans.
  22. E.g. Matthew Lyon (Vermont Republican Congressman that was put in jail under the act)
  23. Rationale for Free Expression
  24. Search for truth: The Marketplace of Ideas
  25. Proponent: J.S. Mill, On Liberty
  26. First, the opinion which is suppressed may be true
  27. Likely it will return later if this is the case, but no one authority should have the power to judge truth for all mankind
  28. Second, the opinion against it may be true
  29. However, even if this is so, it will only be assuredly judged so against the other opinion.
  30. Third, each doctrine may be a piece of the truth that assists
  31. This is J. Holmes in Abrams: the Marketplace of Ideas - the true ideas will be sold for the highest price, and the bad ones will be left to rot in the bazaar
  32. Criticism:
  33. Baker, Scope of the First Amendment Freedom of Speech
  34. Experience as well as discussion contributes to understanding. Thus, restrictions on experience-generating conduct are as likely as restrictions on debate to stunt the progressive development of understanding, but the marketplace theory gives no constitutional protection to experience-producing conduct
  35. Ingber, The Marketplace of Ideas: A legitimizing myth
  36. This idea is based on lasses-faire economic theory, which government over time has had to add some controls to. Similarly, real world conditions also interfere with the effective operation of the marketplace of ideas, and state intervention thus may be necessary.
  37. Marketplaces aren’t perfect, and we need some regulations
  38. Wellington
  39. In the long run, true ideas drive out false ones. However, we live in a world of short runs, several on top of the other. The Holocaust is a good example of a short run of awful consequences.
  40. Class
  41. The truth might not be absolute – who is to say that there is one truth, and we could have multiple truth
  42. If what we care about is truth, why do we protect art, literature, and other aesthetic things – which may not be about truth, but rather about opinion, beauty, etc.
  43. Self-Governance
  44. Proponent:
  45. Meiklejohn, Free Speech and its Relation to Self-Government
  46. In order to properly govern one another, all ideas must be heard. An idea, because it is on one side of the fence, should still be heard, because free men who govern themselves have the right to decide the issue. Thus, freedom of speech is not a law of nature or of reason, but a deduction from the basice American agreement that public issues shall be decided by universal sufferage.
  47. Voting is but the outward expression by which we govern. People must have the intelligence, sensitivity, etc. to know how to vote, and these must be acquired by the arts, etc.
  48. Basically, society is a town meeting, and the self-governing citizens have to make the best possible decision, and free-speech allows their information to get out into the open
  49. Post
  50. Under Mieklejohn’s view, the state is the moderator of democracy, and opinions that are inconsistent with “responsible and regulated” discussion can and should be suppressed. However, an alternative form of democracy is participatory democracy, which locates self-governance in the process by which citizens come to understand the government as their own. If a state cuts off a person from discussion, it makes the government less legitimate. If the government regulates speech according to values of a collective identity, then it cuts off the process by which we form a collective identity, through discourse.
  51. Speech is valuable not b/c the govn’t is in a town meeting, but b/c society is a mass of factions, at each of these factions needs to find itself and participate in the governing by putting their view out there
  52. Criticisms
  53. Chafee, Book Review
  54. Meiklejohn’s assertion that there is a distinction between public and private speech is weak. There is something public about nearly every aspect of life, and Mieklejohn’s distinction eliminates art and literature from free speech.
  55. Bork, Neutral Principles and Some First Amendment Problems
  56. Non-political speech should not be subject to the first amendment. This type of speech should be regulated by society and its elected representatives.
  57. Redish, The Value of Free Speech
  58. The appropriate scope of the First Amendment is thus much broader that either Bork or Mieklejohn would have it. Free speech aids all life-affecting decision-making, no matter how personally limited, in much the same manner in which it aids the political process. There thus is no logical basis for distinguishing the role speech plays in the political process.
  59. Sunstein, Free Speech Now
  60. The First Amendment is about political deliberation. We should treat speech as political when it is intended and received as a contribution to public deliberation about an issue.
  61. Class
  62. This theory is too narrow: it wouldn’t protect children’s stories and other things that may be irrelevant to governance
  63. Self-Fulfillment and Autonomy
  64. Proponent:
  65. Richards, Free Speech and Obscenity Law
  66. The significance of free expression rests on the central human capacity to create and express symbolic systems . . . freedom of expression permits and encourages these capacities. In doing so, it nurtures and sustains the self-respect of the mature person . . . without which the life of the spirit is meager and slavish.
  67. Only through participation in speaking, debating, participation in the arts and literature, can we have these mature and developed people.
  68. Scanlon, A Theory of Freedom of Expression
  69. To see oneself as autonomous, a person must feel like they are making their own decisions. An autonomous person makes independent considerations, and cannot take the states assessment at face value.
  70. Scanlon eventually rescinded on his theory (see p. 15).
  71. Criticism:
  72. Bork
  73. An individual may develop his faculties or derive pleasure in other ways. Barmaid, etc. The self-fulfillment/autonomy rationale doesn’t distinguish speech from these other ways. One cannot, on neutral ground, choose to protect speech and not these other things.
  74. Other Rationales
  75. The Checking Value
  76. Free Speech can serve to check the abuse of power by public officials. Citizens have a veto power when public officials go too far.
  77. The Safety Valve
  78. The process of open discussion promotes greater cohesion in society because people are more ready to accept decisions that go against them if they have a part in the decision-making process
  79. If we let the losers complain, then they will (a) moan in constructive ways which will change the rules and convince people or (b) have the cathartic feeling of explaining themselves
  80. The tolerant society
  81. Because people have to listen to things they don’t like, it makes them a stronger and more tolerant person.
  82. The development of Character
  83. We must deal with things, which are painful, which makes us stronger people.
  84. Philosophy and the First Amendment
  85. These rationales might not be nearly what the framers intended
  86. Most people believe you need more than just one of these rationales to decide any First Amendment cases

II.TheSuppression of Dangerous Ideas and Information

  1. Expression that Induces Unlawful Conduct
  2. General
  3. This section focuses on the Court’s attempt to restrict expression that might persuade, incite, or otherwise “cause” readers or listeners to engage in unlawful conduct.
  4. This is naturally important because this is very similar to the concept of seditious libel and lies at the core of the First Amendment.
  5. Four types of speech:
  6. Speech which criticizes government policy and discusses public issues generally
  7. E.g. It is a nuisance that my shoes get screened when I board a flight
  8. This could be Schenck, or Schenck could be under category 4
  9. Speech that urges the audience to accept the proposition that lawbreaking may be moral or necessary sometimes to achieve political goals
  10. Civil disobedience – Martin Luther King, Jr., Ghandi, the Declaration of Independence
  11. Speech that advocates lawbreaking at some point in the future
  12. This is Gitlow
  13. The “bad tendency test”
  14. Speech that expressly advocates lawbreaking NOW
  15. Lets seize the Dean’s suite and turn out those tyrants
  16. Abrams’ “lets strike right now” speech
  17. First dealt with in cases concerning agitation against the draft during WWI
  18. Two months after entry into WWI, Congress enacted the Espionage Act of 1917, which made it a crime when the nation was at war to “willfully make or convey false reports or false statements with intent to interfere with the military of the United States” or to “promote the success of its enemies;” to willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States;” or to willfully “obstruct the recruiting or enlistment service of the United States.”
  19. Eleven months later, Congress passed the Sedition Act of 1918, which made it criminal for any person to say anything with intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal . . . or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, or the Flag; to urge the curtailment of production of war materials with the intent of hindering the war effort; or to utter any words supporting the cause of any country at war with the United States or opposing the cause of the United States.
  20. Dealing with the Espionage and Sedition Act
  21. Shaffer v. United States (Court of Appeals)
  22. P convicted of violating the Espionage Act by publishing a book that contained many “treasonable, disloyal, and seditious utterances” – he said war is the devils outcome and that patriotism was his tool to achieve it. Held, the P is in violation of the Act. (1) The question is whether the natural and probable tendency and effect of the publication are such as are calculated to produce the result condemned by the statute. (2) Printed matter may tend to restrict enlistment in the armed services without mentioning recruitment or enlistment: by attacking the justice of the cause for which war is waged, by undermining the spirit of loyalty which inspires men to enlist or to register for conscription in the service of their country. (3) By attacking patriotism as the spirit of the devil, he has weakened patriotism and the desire of people to enlist. (4) “There is enough in the evidence to show that the hostile attitude of his mind against the prosecution of the war . . . he must be presumed to have intended the natural and probable consequences of what he knowingly did.”
  23. Masses Publishing Co. v. Patten (Hand: S.D.N.Y. 1917)
  24. Postmaster advised a revolutionary magazine, The Masses, that their August publication would not be mailed because it violated the Espionage Act of 1917. The publication sought an injunction, and the postmaster replied that there were four pieces of text and four cartoons that fall within the Act.Held, the Platiniff is granted the preliminary injuction because his speech did not rise to the level of inciting people to violate the law. 1) The postmaster’s position, in so far as it involves the suppression of the free utterance of abuse and criticism of the existing la, or of the policies of the war, is not, in my judgment, supported by the language of the statute. (2) It would be folly to disregard the fact that political agitation may in fact stimulate men to the violation of law; and there is no doubt that counseling one to violate the laws is not a valid form of speech. (3) However, if one stops short of urging upon others that it is their duty or in their interest to violate the law, it seems one should not be held to have attempted to cause its violation. (4) Although some of the passages to praise contientious objectors, showing admiration for someone does not necessarily encourage others to follow them – at most it says if you do you will receive the same praise and admiration.
  25. Schenck v. United States (Holmes, U.S. 1919)
  26. P was convicted under the Espionage Act of 1917 for sending mailings to men who had been drafted that were “alleged to be calculated” to obstruct the recruiting and enlistment services. The mailings said numerous times over that it is one’s duty to stand up for their rights and to asset opposition to the draft, and that arguments for the draft were by cunning politicians and even silent consent to the laws was supporting a vast conspiracy. Held, the defendants are convicted for violating the Act. (1) It may well be said that laws abridging the Freedom of Speech are not confined to prior restraints, though that may have been the main purpose of the Amendment. (2) In many places and in ordinary times the defendants would have been perfectly correct in saying all that they said, but every act depends on circumstances. The most stringent protection of free speech would not protect a man from shouting fire in a theater, and causing a panic. (3) The question in every case is whether 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. It is a question of proximity and degree. (4) When at war, many things that might be said in time of peace they their utterance will not be allowed as long as men fight.
  27. The ‘clear and present danger’ test is apparent here. It is not clear if Holmes opinion in Schenck is a different formulation of the bad tendency test or if it is something new. What we do know is that Schenck ultimately loses.
  28. Shaffer, Masses, and Schenk
  29. Bad Tendency Test:
  30. Shaffer reflects the traditional positions of the lower courts that if the tendency of the expression is to bring about the conduct, then it is punishable. Naturally, intent could be viewed from the tendency of the speech itself, on the theory that one intends the probable and foreseeable consequences of one’s actions.
  31. Express Incitement:
  32. Hand attempted, in Masses to articulate a categorical, per se rule that would “hard, conventional, and difficult to evade.” Unlike Shaffer and Schenk, Masses focused on the content of the speech rather than the intent of the speaker or the consequences of the communication. This test focuses on explicit incitement
  33. Is this under-protective of free speech?
  34. This approach affords no protection to express advocacy. Bork believes that “advocacy of law violation is a call to set aside the results that political speech has produced . . . it allows a minority to defeat a majority that makes law enforcement, put into practice, ineffective.