I)Theoretical Underpinnings of the First Amendment

I)Theoretical underpinnings of the First Amendment

a)History

i)Licensing- literal prior restraint; could not publish without permission from the crown

(1)Expired due to expediency concerns, not free speech concerns

ii)Constructive treason- even imagining the death of the king was a crime

iii)Seditious libel-bringing the government into disrepute

(1)Covered both true and false claims

(2)Blackstone- only prior restraint was prohibited; anything could be punished after it was said

(3)Zenger trial- jury verdict; exonerated on the basis that what he said was true. NOT a judicial ruling- defense of truth not yet created

(4)Patterson v. Colorado- 1907; Justice Holmes held that the First Amendment applied only to prior restraint

iv)No clear consensus on the intent of the Framers; might have been Blackstone view, might have been what has developed

b)Six major theories

i)The Search for Truth.

(1)A free society needs to be able to address all possible interpretations

(2)True ideas can defeat false ideas- counterspeech principle

(3)Criticisms-

(a)Assume speople primarily value truth

(b)Not all speech expresses an idea (low value speech)

(c)Presupposes a market model

(d)No such thing as absolute truth

ii)Self governance- Meicklejohn. We protect speech because it enables us to better govern ourselves

(1)Allows some punishment of speakers, so long as the idea is out there- can't make an omelet

(2)Lots of art has no direct application to government; Meicklejohn's response was that a better/more broadly educated public makes better decisions

iii)Self-fulfillment- concerned with the development of mature, developed individuals. Only then can we we have independent/free people

(1)Bork's criticism- same concerns of self-fulfillment apply to non-expressive acts/conduct: sexuality, drug use, etc. This is how pornography and sexual expression ARE usually justified

iv)The checking value- speech acts as a check on abuses of government power

v)"Safety valve"- leads to social stability. Losers in the political arena can express themselves rather than resisting;

vi)Tolerance- Free speech carves out an area of law for self-restraint and tolerance of ideas, makes us tolerant of opposing ideas

II)Suppression of dangerous ideas and information

a)Bad tendency test- govt. has the power to punish speech that had any tendency, no matter how remote, to bring about breaches of law

i)Shaffer v. US ( 9th Cir. 1919)- convicted under the Espionage Act

b)Constructive intent- if you advocate spending less money on A, and that hinders the war effort, you have the intent to hinder the war effort

c)Espionage Act cases- Espionage Act passed in 1917

i)Masses v. Patten (1917)- Learned Hand deviates from Bad Tendency test

(1)Begins to distinguish "advocacy" from "incitement"

(2)Hand prefers a "test based on the nature of the utterance itself"

(3)Focus on "trigger of action"

(a)"the draft is stupid" = advocacy/agitation

(b)"the draft is stupid, let's kill all the pigs" = incitement

(4)No direct instigation

ii)Schenck (1919)- "the character of an act depends on the circumstances"- Shouting fire in a crowded theater - Holmes

(1)Schenck opposed the draft (not necessarily the war); advocated writing to congressmen, voting, etc. - purely legal means

(2)Bad Tendency- would have the tendency to encourage opposition to the draft; Learned Hand might let him slide as the "clever agitator

(3)Beginning of Clear and Present Danger test-

(a)"it is a question of proximity and degree"

iii)Frohwerk (1919) German language paper, opposed to war , convicted of conspiring to cause disloyalty. Holmes upheld conviction; CPD standard alluded to

iv)Debs v. US (1919) Eugene Debs convicted of obstructing enlistment. Court rejected Debs' claim that the conviction violated the First Amendment. Main topic, Socialism, was ok, but the obstruction aspect wasn't. No reference to CPD

v)Abrams (Fall 1919). Russian immigrant socialists distributed flyers opposing the US intervention at Murmansk and Vladivostok; called for general strike. Supreme Court upheld convictions, referring to Schenck and Frohwerk;

(1)Bannable under Blackstone (no prior restraint, subsequent punishment OK); Bad Tendency; even under Hand's Masses test- direct incitement to immediate lawbreaking

(2)Holmes dissent more important

(a)Looked for specific intent to hinder the draft effort; their intent was to help Russia

(b)Looked for CPD- "a silly leaflet by an unknown man"- put teeth into the "clear" aspect of CPD

(c)Refers to marketplace of ideas theory- "who knows what the truth is?"

(d)Should not limit expression of even vile ideas, unless they "so imminently threaten immediate interference.."

d)Holmes and Brandeis- development of CPD

i)Gitlow (1925)convicted of criminal anarchy, NOT under Espionage Act. Argued the statute violated due process clause of 14th Amendment. Clearly advocated overthrow of the state. Backdrop was labor strife, rise of socialsim. There was an assumption that the 1st applied to the state via the 14th.

(1)Court focused not on the free speech aspect, but on correct use of the police power- so long as the statute isn't unreasonable, it's OK. Evoked bad tendency test

(2)Holmes' dissent-

(a)Must be an immediate threat; dangerous speech can only be punished when it calls for immediate violence/lawbreaking

(b)Put teeth into the "present" part of CPD

(3)Standard of review- how much deference should state laws be given?

(a)Court opinion gave wide deference to the state's determination that an entire class of speech was dangerous/punishable

(b)Espionage Act cases hadn't dealt with classes of speech, but "obstruction"; courts determined what was obstruction

(c)Not much deference currently

(4)Statute outlawed violence to destabilize government, but not to preserve it- Underinclusion?

ii)Whitney v. CA (1927) Anita whitney attended the convention of the socialists; group became more radical (category 3, "at some point we'll need to get violent"). convicted of joining an organization that advocated the commission of crime, etc., as a means of achieving political change. CA law didn't require speech or action, just membership- punished association rather than speech or conduct.

(1)Court deferred to the legislature

(2)Brandeis's concurrence the important part

(a)Imminence- even express advocacy can't be punished unless it incites immediate violence

(b)Seriousness of the harm- advocated "harm" must be serious (not incitement to trespass/jaywalk, etc.)

(c)New rationale/ theory for free speech- self-governance; more utilitarian than marketplace of ideas

(d)Counter speech: the remedy for bad idea isn't repression, but GOOD ideas

(e)Answered the majority's deference argument- acts that infringe freedom of speech are no less arbitrary than regulation of property rights; not quite strict scrutiny, but approaching it.

e)First Amendment comes of age, 1920-1950

i)Injection of modernism- idea that humans have agency, can discover the truth

ii)Capitalism and political rights

(1)Belief in unregulated capitalism was declining

(2)Belief/adherence to democratic theory increasing

iii)Carolene Products / bifurcated review project- separate standards of review for restrictions on political/constitutional rights (strict-er scrutiny) and economic policies (more deference/ intermediate scrutiny)

iv)Between Whitney and Dennis, the court invalidated three subversive advocacy convictions on technical grounds. Importance of the cases not on the rulings/results, but the changing rhetoric the Court used

(1)Fiske (1927)- lack of evidence that the organization Fiske joined actually advocated violence

(2)Herndon (1937)- the court determined that soliciting individuals for membership in the Communist Party was insufficient fir a conviction under subversion laws; determined under freedom of assembly grounds, not due process

(3)DeJonge (1937)- mere assistance in the conduct of a meeting is a different matter than teachingor otherwise "inciting" individuals to overthrow the government or other subversive acts. No evidence provided that the meeting the defendant helped with had any advocacy of governmental overthrow

v)Stromberg v. California (1931) CA children's communist day camp flew a red flag; state statute prohibited flying a red flag as a symbol of opposition to the government.

(1)Court ignored the symbolic aspect

f)Dennis, Brandenberg, and modern subversive advocacy jurisprudence- culmination of modern subversive advocacy cases. Tied in with second Red Scare

i)Dennis v. United States (1951). Defendants were CPUSA members, convicted of Smith Act violations- unlawful for any person to knowingly or willfully advocate, etc., the duty/necessity/desirability of overthrowing any government of the United States. Trial lasted 9 months, 16000 pages of evidence. Statute outlawed "Category 3" speech ("advocating violence/lawbreaking at some time in the future")

(1)No majority opinion

(2)Finally officially adopts the CPD standard, BUT ruled that doesn't mean you have to wait until the rifles are already being handed out, etc.

(a)Vinson's CPD isn't from Brandeis's Whitney concurrence, but more akin to Learned Hand

(b)If the [Evil to be avoided by the law], divided by [probability of the evil] is greater than the damage of the invasion on free speech, then the invasion is justified

(c)No requirement of imminence

(d)Holmes and Brandeis had no such equation; gave less deference to the legislature

(3)Court ruled that "mere discussion of ideas" is protected (def. includes Category 1, maybe Category 2)- continued liberalization of the jurisprudence

(4)Imminence- "government need not wait for the eve of the putsch"

(a)Government doesn't need to "fight fair", can cheat

(b)When the survival of the state is at stake, nothing else matters (Ben Franklin would argue…)

(5)Deference-

(a)Frankfurter- defers to Congress, realizes the risk of a "chilling effect", but it's not the court's job to strike that balance

(b)Jackson- severity of the harm is key

(c)Douglas- DISSENTS. "This conviction is for presenting the teachings of four books"

(i)Like burning books, and WE don’t do that

(ii)Free speech is great for other reasons- marketplace of ideas, etc.

(iii)It's partially through free speech that Hitler was defeated and communism was discredited.

(iv)Advocated more counter-speech before criminalizing

(6)Did the Court use a "bad tendency" test dressed up in CPD clothes?

(a)Might be why Black wanted to scrap CPD as underprotective

(7)Self-government is good, but violent revolution contributes nothing to our First Amendment values

(8)Doctrinal revolution-

(a)7 of 8 justices reject Gitlow's extreme deference

(b)7 of 8 reject bad tendency test (?)

(c)7 of 8 agree that Whitney is no longer good law, and adopt CPD, at least in name

(d)6 of 8 agree that express advocacy is less protected than other forms of speech

(e)A majority of the Court adopts SOME version of CPD

ii)Between Dennis and Brandenberg-

(1)Yates v. United States (1957)- ruled that the Smith Act does not prohibit advocacy of forcible overthrow as an abstract principle

(2)Support for war resisters increased, as Vietnam dragged on

iii)Brandenberg v. Ohio (1969)- Brandenberg was a Klan leader, convicted under an Ohio statute for advocating the duty, etc., of lawbreaking as a means of accomplishing political reform. Invited a Cincinnati TV station to his Klan rally; filmed a cross burning, some threats of "possible revengence"

(1)"Whitney has been thoroughly discredited by later decisions"

(2)Constitutional guarantees do no permit prohibition of advocacy of force or lawbreaking unless it is directed to imminent lawless action, and is likely to incite or produce such action- CPD

(3)Brandenberg test: prohibited speech must have not just the abstract discussion of ideas, but also:

(a)advocacy (rather than abstract expression of ideas, and must be intentional, you must want it to happen)

(b)Immediate lawbreaking that is

(c)Likely to occur

(4)Not many incitement cases after Brandenberg

(a)Clear and present danger test is done

(b)Seriousness has fallen out

(c)Most speech protective standard yet

iv)One story of evolution of cases:

(1)Ct. stuggles starting w. Schenck to give content to “clear and present danger” and it was ultimately unsuccessful. Faced w/ the fact that clear and present danger did not protect its core defendant’s (Dennis, etc.) it was doomed. Brandenberg can then be seen as rejecting the clear and present danger test as being far too maliable. Its not that protective because you can make it mean whatever you want it too. Brandenberg can be viewed as culmination of Holmes/Brandeis in that they helped further the things that came to fruition in Brandenberg.

g)Threats and provocations

i)Bridges v. California (1941)-arose out of litigation between two rival unions. Bridges, president of the losing unions, published a telegram he had sent to the Secretary of Labor threatening to tie up the West Coast with a strike if the decision against them was enforced. Found guilty of contempt of court.

(1)Justice Black wrote the opinion, invalidating the convictions

(2)Substantive evil must be imminent and risk must be extremely high. Robust CPD test

(3)Two possible substantive evils

(a)Disrespect to judiciary

(b)Unfair administration of justice

(4)Black reasoned that the strike will occur anyway, so prohibiting the words won’t change the risk

(5)Frankfurter's dissent would only require a reasonable likelihood of actually influencing the cases' outcome, Black would require a "robust" likelihood.

ii)Black letter law- true threats are not protected by the First Amendment; that's why blackmail is not protected speech.

iii)Provocation- when can a person be punished for saying things?

(1)Schneider v. State- held that 1st Amendment does not generally prohibit government from regulating public streets with one important exception, BUT- invalidated anti-littering ordinance designed to stop Jehovah's Witnesses from distributing literature

(2)Cantwell v. CT (1940) arguably the first important First Amendment case after Carolene Products. Members of the Witnesses were seeking donations, also playing anti-Catholic records for people. One man threatened to kick Cantwell's ass. Cantwell's convicted of 1) soliciting money for religious purposes without a permit 2) common law breach of the peace

(a)Both convictions overturned

(b)Statute requiring permit was prior restraint of free exercise of religion; they believe their religion requires them to go out and collect $$, so prior restraint is unconstitutional (???)

(i)Prior restraint usually applies to speech

(c)Common law breach of peace-

(i)Weren't the Cantwells just asking for an ass-kicking?

(ii)What's at stake is the right of people to at least try to convince others of the rightness/wrongness of deeply held religious beliefs- marketplace of ideas

(3)Is Cantwell a free speech case?

(a)Free speech formulations- Clear and Present Danger

(b)Roberts treated speech and religion as co-equal liberties

(c)Two weeks after Cantwell, Court handed down Gobitus, which affirmed a mandatory Pledge of Allegiance; more or less reversed in West Virginia v. Barnette

(d)involved prior restraint

(e)Laid groundwork for later free speech jurisprudence

(i)CPD. Fighting Words, preferred freedoms doctrine, bifurcated review project, time/place/manner restrictions, home as bastion of privacy against unwanted speech,

(ii)Most

h)Fighting Words

i)Why would "fighting words" be unprotected?

(1)Intended to inflict harm, not communicate ideas, and therefore not really "speech" at all

(2)Likely to provoke the average person to retaliation, and thereby likely to cause a breach of the peace

(3)Fighting words should be unprotected because they are "no essential part of any exposition of ideas"

ii)What constitutes fighting words?

iii)Chaplinski v. New Hampshire (1942). Essentially a breach of peace case. Chaplinski was distributing leaflets, city marshal warned him that the crowd was getting restless, Chaplinski kept ranting, called the marshal a "fascist and a god-damned racketeer". Court affirmed his conviction

(1)Justice Murphy's opinion categorically excluded from First Amendment protections "the lewd, the profane, the libelous, and fighting words"

(2)Which, by their very utterance tend to inflict injuray or an immediate breach of the peace

(3)Have low social value

(a)Not an essential part of any exposition of ideas (marketplace theory doesn’t apply)

(b)Not reasoned debate or dialogue

(4)Statute in question was extremely broad: "no person shall address any offensive, derisive, or annoying word to any other person who is lawfully in the street or any other public place"

(a)ANYTHING can be annoying or possibly inspire someone to violence

(b)Nearly identical statute was invalidated as overbroad 30 years later in Gooding v. Wilson

(c)Nonetheless, the Court characterized it as "limited in scope"

(5)Court restricted itself to facial review of the statute

iv)Terminiello v. Chicago(1942) Terminiello was convicted of disorderly conduct; called listeners "slimy scum", "snakes", and "bedbugs". Court ruled that jury instructions/statute was invalid- "A function of free speech under our system of government is to invite dispure"

(1)Stands for idea that speech cannot be restricted because the idea expressed offends the audience

v)Feiner v. New York (1951) disorderly conduct conviction. Called Truman a bum, the American Legion "gestapo".

(1)Court affirmed- incitement to riot; police not powerless to protect from harm of riots

(2)Dissent- Hugo Black

(a)Looks to imminence of actual riot- CPD?

(b)If, in the name of preserving order, the police can interfere with a lawful public speaker, they must first make all reasonable efforts to protect him"- disavowal of heckler's veto

(c)"I understand people in authoritarian contries must obey arbitrary orders. I had hoped there was no such duty in the United States."

vi)Street v, New York (1969). Street, a black man, said "we don’t need no damn flag." NY argued he could be prosecuted because listeners might retaliate. Court ruled "cannot say his remarks are so inflammatory as to come within that small calls of fighting words"

vii)Cohen v. California(1971) "Fuck the draft" on a jacket, in court. Court ruled fighting words didn’t apply, as it was "clearly not directed to the person of the hearer."

viii)Gooding v. Wilson (1972) "You white son of a bitch, I'll kill you". Convicted under a statute prohibiting use of language likely to cause a breach of peace. Court rejected as overbroad, because GA courts had repeatedly interpreted it as reaching clearly protected expression."- Gooding's speech not protected, but the law still failed

ix)Rosenfeld v. New Jersey / Brown v. Oklahoma (1972) use of "motherfucker", convictions under state law banning profanity in public. Both reversed in light of Gooding. Rehnquist dissented under some Wild West bullshit theory