I.The Beginning: Understand the History and Theory of the Constitution and Article III

a.Declaration of Independence: the Purpose of our government

  1. The governments purpose is to protect rights (Nazi case); yet there are strict limits on the government’s actions to also protect those rights

b.Judicial Review: role of SCOTUS in 1st A context

i. Under the orthodox theory Congress and the Judiciary are on equal footing

  1. Constitution is a manifestation of People’s will; Constitution creates & controls both

a.Constitution gives SCOTUS the Supreme Power of its interpretation

b.Gives Congress the power to express people’s will

ii.Marbury v Madison

c.Constitutional Interpretation: judgment v revision

i.There is separation powers concern when courts are interpreting laws by “rewriting” them

  1. It is proper for the branches to defer as the interpreter or maker of law
  2. Fortunately, the Const. is written, unfortunately, it is ambiguous (cruel & unusual)

ii.To resolve the ambiguity in the Constitution, often look to several resources:

  1. Original Understanding

a.Looking at context of original ratifiers and drafters to understand text

b.Problems: (1) out of date; (2) often unclear

  1. Precedent

a.Supremecy & Stare Decisis: deference to the Court’s prior holdings to ensure stability

b.Problems: (1) cases of first impression; (2) precedent is wrong

  1. Legal Traditions

a.Seeking stability in the law by looking to authoritative natural sources for answers: legal traditions and state’s customs and traditions (stare decisis)

b.Problems: (1) cases of first impression; (2) bad traditions

  1. Consensus Values: diff b/w this & legal trad’s can be fuzzy (clearer as move into past)

a.Again looking for authoritative natural source of answer’s in “people’s constitution” theory

b.Problems: (1) creates a majority rule/norm (the constitution strives to put these rights beyond control of democratic majorities); (2) instability; (3) stepping out of the legal scope for answers

  1. Policy Judgments

a.Decisions have policy implications so should review the policies that may be affected.

b.Think: justice is the purpose of the constitution, we must evaluate a decisions effect on justice and thereby its constitutional purpose

c.Problems: (1) structural concerns (SOP) – legislature makes policies; (2) oftentimes no clear answers

iii.Judgment v Will

  1. Judgment

a.Text, precedent, original understanding

  1. Will

a.Test, precedent, legal traditions, consensus of popular values, policy

iv.Several methods of interpretation have developed: Activism v. Restraint

  1. Activist conception of judicial role

a.Non-deferential to legislature

b.Interpretation: view text in light on consensus values, policy concerns, and contemporary concerns

c.Purpose: to protect minority rights

d.Minority on SCOTUS

  1. Restraint:

a.Deferential to policy making institutions – executive, legislature, state legislature

b.Text: intent and legal traditions (emphasizing the oldest)

c.Purpose: respecting majority rule; majority rule stems from Constitution

  1. Calder v Bull

a.Justice Chase: Const. protects natural justice by implicit unconstitutionality to protect minority rights

b.Justice Iredell: If not expressly constitutional then it is Congress’ authority to decide, no implicit unconstitutionality

v.Looking at the text as a Living or Historic Constitution

  1. Living

a.Purpose was to set our general charter that would be flexible to respond to changing facts and values

b.emphasis on policy and consensus

  1. Historic

a.Constraint is essential: the standards included are meant to serve as a restraint on gov’t, if allowed to change it is merely an aggregate of suggestions

b.Emphasis on original understandings and oldest legal traditions

vi.And then the parties – Liberals v Conservatives

  1. Liberals

a.Activists & living constitutionalists; judicial supremacy

  1. Conservatives

a.Restraint & historic constitutionalists

II.The Free Speech Provision: History

a.The Philosophy of Free Speech: why is it valued?

i.3 important rationales:

  1. (1) Marketplace of ideas: the belief that truth will ultimately win out in competition

a.John S. Mill & O.W. Holmes

b.Problems: extremism & “marketplace” concerns may be conflicting

  1. (2) Self-Governance: debating politics is foundation of self-governance

a.Problem: may just be limited to political speech

b.BUT would protect those suggesting alternatives to democracy

  1. (3) Individual Autonomy: we must protect and respect basic freedoms

a.very broad consideration of freedom

ii.Other rationales:

  1. Checking function of free speech: despite form of gov’t this is useful (freedom of press)
  2. Safety Valve: allow crazies to blow off steam, allows for membership recognition
  3. Article of Peace: quid pro quo reducing dangers/confrontations in politics

a.When repression does not loom stakes are lowered

b.The History of the 1st Amendment:

i.Ratified in 1791 in context/response to the Sedition Act Controversy

  1. Federalists were concerned about domestic revolutionary activities (French sympathizer)
  2. Forbade writings against US: POTUS & Congress but not VP (Jefferson – leader of opposite party): and was used to go after Jeffersonians

ii.3 Schools of Thought emerged from the events

  1. (1) Federalist: Blackstone

a.no prior restraints but subsequent punishments were okay

b.Sedition Act was a subsequent punishment so Constitutional

c.SCOTUS was federalists; granted no cases cert, but in hearing circuit affirmed

  1. (2) Jeffersonian: 1A is federalism provision & state should punish sedition (states rights)

a.no federal sedition act, no substantive view on free speech

  1. (3) Madisonian: agreed that federalism provision but more complex

a.US has democratic gov’t, in a democracy it makes no sense to censure political speech or criticism

b.Violates the underlying basic democratic structures of the Constitution

iii.Bottom-line: the split wa along party lines but not much freedom for political speech in 1790s

III.The Free Speech Provision: Dangerous Speech: Advocacy of Unlawful Conduct

a.First: Decisions of the Sedition & Espionage Act in the WWI Era

i.Shaffer v US (1919)

  1. Facts: Anti-war sentiments in book that was mailed that purportedly obstructed enlistment
  2. Analysis: cites Bad Tendency Test & Constructive Intent

a.Bad Tendency Test: if speech has bad tendency then it is punishable;

  1. from English C/L (Blackstone) holding that subsequent punishment of speech proper if had pernicious tendency

b.Constructive Intent: infer intent from the natural & probable cause of speech

ii.Cites Masses Publishing v. Pattern (1917: Judge Learned Hand)

  1. Express Incitement Test: look for express terms that advocate unlawful conduct

a.bad tendency is too broad; anyone is subject to censorship

b.This is more speech protective but may be too speech protective

iii.Schenck v US (1919: Holmes)

  1. Facts: passing literature saying conscription violates 7th Amendment & assert your rights
  2. TEST: Clear & Present Danger Test (w/r to circumstance & nature of words: fact sensitive)

a.Elements of test:

  1. (1) clarity of danger – probability of danger likely to flow from speech
  2. (2) imminence of danger – presence
  3. (3) degree of danger
  4. (4) intent
  5. (5) express words of law violation

b.the modern test includes 1-4, and arguably #5

  1. Other Test w/r the Schneck

a.Bad Tendency: low clarity req’t, no imminence req’t, no degree of danger req’t (pernicious), intent is part of test but constructive so we infer intent not really necessary, no req’t for express words

b.Express Incitement: only looking to words, no intent necessary

b.Establishing the Clear & Present Danger Test

i.First: it Bad Tendency is used and abandoned

  1. Frohwerk v US (1919): a little breath might kindle a flame, bad tendency test
  2. Debs v US (1919): natural tendency & rsbl probable effect of words to obstruct &  must have specific intent
  3. Abrams v US (1919): Fliers thrown out of window by Russian about Russian revolution

a.Holmes Dissent: Cannot sustain conviction unless speech creates or is intended to create a clear and present danger

  1. Wants higher clarity, more imminence, & greater degree of danger
  2. Policy: marketplace of ideas
  1. Gitlow v NY (1925): NY statute prohibiting advocation of gov’t overthrow used to arrest left wing socialists advocating violent overthrow of gov’t (red scarof 20s)

a.Of note: first application of 1A to states through 14A

b.Majority: first speech specific statute passed by states

  1. HOLD: look to rsblness of leg judgment about perniciousness of speech; if leg judgment rsbly believes pernicious then it is constitutional
  2. No protection for speech at all

c.Holmes Dissent: every idea is an incitement, cannot defer to leg judgment

  1. Need clear & present danger test
  2. Conflicting reason: if in long run beliefs are to be accepted need open marketplace, good ideas will defeat bad, but once ideas become clear and present danger then censorship is proper
  1. Whitney v CA (1927): Similar facts as Gitlow, freedom of association

a.Majority: Sanford writes same opinon as Gitlow

  1. speech specific - analyze whether leg judgment is rsbl that speech is pernicious

b.Concurrence (Brandeis): Calling for clear & present danger

  1. History: framers, accuracy problems, sedition act & federalists
  2. NEW Policy: in democratic self-governance the real danger is inert & apathetic people, need engaged citizenry
  3. Remember Holmes cited marketplace of ideas
  4. Bad Speech: remedy for bad speech is more speech, counter-speech makes peaceable discussion not legislative censorship
  5. Application: (1) clarity, (2) presence, (3) danger [maybe (4) intent]
  6. A serious threat is required for justification

ii.Adoption of the C&PD Test

  1. Dennis v. US (1951): Communist party advocating the destruction of US gov’t by force

a.Charge: Smith Act violation: prohibits overthrow of US gov’t by force/violence

b.HOLD: used the C&PD TEST

  1. “although no case subsequent to Gitlow or Whitney has expressly overruled the majority opinions…there is little doubt that subsequent opinions have inclined towards the Holmes-Brandeis rationale”
  2. BUT, SCOTUS does not use the H-B C&PD test, they use Learned Hand’s approach from his lower decision in Masses

c.C&PD TEST

  1. Court must ask “whether gravity of evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid dangers”
  2. If danger is high, then requisite probability is lowered
  3. This is the 3rd or so C&PD test offered

d.Black Dissent: this is not the real C&PD test, this test leads to censorship

  1. Brandenburg v Ohio (1969):

a.Facts: leader of KK convicted under Ohio Criminal Syndacism Statute of advocating the duty, necessity, or propriety of crime, sabotage, etc.

  1. Advocacy of political change through violence is prohibited

b.RULE: “speech is unprotected if there is advocacy directed to inciting or producing imminent lawless action & is likely to incite or produce such action”

  1. No mention of C&PD

c.FINAL TEST: elements

  1. (1) Clarity: “likely to produce that action”
  2. (2) Imminence: “producing imminent”
  3. How imminent? No clear thought but flexibility accommodates the seriousness of the lawless action
  4. (3) Danger: “lawless action”
  5. (4) Intent: “directed to”
  6. (5) Express words: “advocacy”
  7. most lower courts say advocacy is req’d even though unclear in test

d.Policy: balancing the social value of speech w/ state’s interest in restriction

e.Brandenburg TEST v Solicitation

  1. If speech says rob banks to support revolution – triggered, protected by Brand.
  2. Criminal to another “hey let’s go rob bank” = solicitation
  3. Solicitation is criminal; criminal speech is unprotected

f.Concurrence (Black & Douglas)

  1. We should steer clear of C&PD; elements are ambiguous & allow censorship in times of crisis
  1. Notes of Application

a.Hess v Indiana (1973): says will take streets later; protected b/c not imminent

b.NAACP v Claiborne (1982):  says if people not follow boycott he will break their necks; protected b/c violence did not occur for months

IV.The Free Speech Provision: Dangerous Speech: Hostile Audience Response

a.Initial Thoughts

i.This aspect is very similar to unlawful conduct b/c in both cases a speaker is speaking to a crowd & there is a chance violence may erupt

ii.SCOTUS applying C&PD test w/r to when gov’t can punish individuals for speech provoking a hostile audience reaction

b.The Heckler’s veto

i.If audience becomes rowdy, the speech will be shut down

ii.Think: would this allow NAACP to go to KK rally, get rowdy and shut down their free speech rights?

c.The First Cases: Employing C&PD Test

i.Cantwell v CT (1940): Jehovah’s witness plays record w/ anti-catholic propaganda; upsets listeners and he is arrested

  1. Lower Court: heard b/w Gitlow Whitney, applies C&PD test
  2. HOLD: “when clear & present danger of riot, disorder, interference w/ traffic, or other immediate threat to public safety, peace, & order State can prevent or punish

a.BUT State may not unduly suppress communication under guise

b.Overturned conviction; asked to play record, no intent to breach peace, no express language directed at individuals

ii.Terminiello v Chicago (1949): convicted of disturbing peace; calling opponents bedbugs, slimy scum, snakes

  1. HOLD: “States cannot punish speech w/o clear & present danger of serious substantive evil that rises above inconvenience, annoyance, or unrest”

iii.Feiner v NY (1951): convicted for speech sharply critical of pres. & local officials for inadequate record on civil rights; police asked him to leave, he refused, was arrested

  1. Analysis: applies Cantwell C&PD test looking at police motive, ’s intent & express language
  2. HOLD: uphold conviction but concerned w/ heckler’s veto & good faith police effort before making arrest to control audience
  3. Black dissent: police must first take all rsbl efforts to protect speaker (crowd control) not arrest speaker; today’s majority would side w/ Black’s dissent

d.The New Line: Following Black’s Feiner Dissent

i.Edwards v SC (1963): 187 protestors, 30 police, 200-300 crowd (mostly unsympathetic)

  1. Facts: civil rights protestors planning march to capitol arrest/convicted after ignoring police threat to disperse; hostile crowd but no (threats of) violence
  2. HOLD:police presence sufficient to meet fsbl possibility of disorder, no threat of violence
  3. “CN does not permit a state to make criminal the peaceful expression of an unpopular view”

ii.Cox v. LA (1965): 2000 protestors, 75-80 police, 100-300 onlookers

  1. Facts: speaker objection to segregation at lunch counters, urged a sit-in; some members of audience found speech inflammatory, speaker was arrested the next day
  2. HOLD: overturned, threat of violence based solely on white audience but no threat, speakers not violent, police testimony that they could have handled the crowd

iii.Gregory v City of Chicago (1969): 85 protestors, 100 police, 1000 onlookers (threw eggs)

  1. Facts: civil rights protestors convicted for disturbing the peace; during march angry group threatened, and threw rocks/eggs.
  2. HOLD: convictions violated DP b/c no evidence of disorderly conduct on behalf of speakers
  3. Appears as if court is following Black’s dissent in Feiner: control audience to protect speaker

e.Where the TEST stands today: SCOTUS never adopts clear test so options:

i.Cantwell C&PD Test

ii.Brandenburg C&PD Test: substituting provocation for advocacy

  1. Elements: (1) provocation, (2) directed, (3) to inciting/producing, (4) imminent lawless action, (5) likely to produce such lawless action

iii.Black’s Feiner approach / Gregory

  1. 1A requires police to first control crowd threatening violence & stop speaker only if crowd control is impossible & threat of breach is imminent

V.The Free Speech Provision: Dangerous Speech: Fighting Words Doctrine

a.Initial Thoughts

i.Fighting words, speech that is directed at another and likely to provoke a violent response, are unprotected by 1A.

b.Fighting Words are Unconstitutional: Chaplinksy

i.Chaplinsky v NH (1942): Jehovah witness dispersing literature on street corner, gives speech denouncing other religions as racketeers; told listener he was a “God damned racketeer,” “damned Facist,” etc.

  1. Analysis: Develops 2-level theory

a.Right to speech is not always absolute under 14A, there are certain well-defined, narrow areas where prevention & punishment are constitutional:

  1. Lewd & obscene, profane, libelous, and insulting or fighting words

b.“…insulting or fighting words – those which by their very utterance inflict injury or tend to incite an immediate breach of peace.”

c.SCOTUS does not use Brandenburg b/c wants to delineate a bright-line category to supplement Cantwell C&PD test

  1. HOLD: overturned;

c.Application of Chaplinsky: No More Convictions

i.Narrowing to direct personal insults

  1. Street v NY (1969): man convicted after burning flag after learning James Meredith had been shot saying “we don’t need no damned flag..if they let that happen to him we don’t need no damned American flag.”

a.HOLD: remarks not inherently inflammatory as to come w/n narrow class of fighting words

  1. Cohen v CA (1971): convicted for disturbing peace by wearing jacket that read “Fuck the Draft.”

a.HOLD: no individual actually or likely present could rsbly had regarded the words on ’s jacket as a direct personal insult.” (see TX v Johnson)

ii.Fighting Words Laws Invalidated as Vague & Overbroad

  1. Goading v Wilson (1972): convicted under GA law prohibiting another person to “use to or of another, and in his presence opprobrious words or abusive language, tending to cause a breach of peace” by saying to police “White son of a bitch, I’ll kill you.”

a.HOLD: statute overbroad; state courts failed to interpret the statute narrowly to prohibit only unprotected fighting words

iii.Fighting Words Laws Unconstitutional b/c Content-Based Restrictions

  1. RAV v City of St. Paul (1992: 9/0, Scalia): city ordinance prohibited placing on private or public property…including but not limited to burning cross or swastika which one knows or has rsbl grounds to know arouses anger, alarm & resentment in others.”

a.RULE:CB based distinctions w/n category of unprotected speech still must meet SS w/ two exceptions

  1. (1) if it directly advances reason why category of speech is unprotected
  2. these areas can be regulated consistent w/ Constitution b/c of their proscribable content but cannot be used as vehicles for content discrimination unrelated to their distinctively proscribable content.
  3. (2) directed at remedying secondary effects of speech & justified w/o respect to content.

b.HOLD: law UNCN, applies to fighting words insult only on basis of select topics in law – race, gender, color, creed or religion.

iv.Bottom-line: SCOTUS uses 3 techniques in overturning fighting words laws;

  1. (1) narrowed scope to only speech directed at person & likely to produce violent response,
  2. (2) unconstitutionally vague or broad, and
  3. (3) impermissible content-based restrictions

VI.The Free Speech Provision: Dangerous Speech: Pure Criminal Speech

a.No Protection

i.Pure criminal speech enjoys no 1A protection; If A tells B how to commit crime & B commits, A is liable

ii.Elements of solicitation

  1. Intent to solicit, intent for solicitee to commit crime, act of solicitation

iii.When do we apply Bradnenburg / Chaplinksy & when do we go to pure criminal speech?

  1. Advocacy & hostile audience involve groups in political context
  2. Pure criminal/fighting looking to individual communication possibly w/o political context

iv.Factors: number of people, political context (or lack thereof), does action track trad’l definition of crime