PURPOSE of GOVERNMENT- Promote Equality, Unalienable Rights

Relevance of the Declaration of Independence- According to the Declaration of Independence we have unalienable rights (natural rights). Government is not allowed to violate the rights, or it is a tyranny. If a government is tyrannical, we can alter or overthrow the government.

PURPOSE OF GOVERNMENT- promote equality, unalienable rights

Relevance to the first amendment- state interests on justifications, limits on state censorship

Federalist 78: Judicial Review and the role of courts

Judicial Supremacy- the idea that the Supreme Court is the supreme interpreter of the constitution

One of the big concerns that Hamilton was responding to was the anti-federalists was that the Courts (unelected officials) would be elevated over congress (the people’s elected representatives.)

Hamilton says the People are above the constitution, the constitution is above the court and congress.

Supreme Court gets to make the determination over whether a statute is constitutional or not- is that Congress exercises will. The Supreme court exercise its judgement over the will

Sources of Constitutional Interpretation:

The Text: vagueness and open-endedness doesn’t resolve questions. why would we go through the trouble of writing it down, if you weren’t supposed to look at was written first? However, often the text is unclear.

Original Understanding: what did the drafters of the Constitution understand the text to mean

Precedent: provides continuity and stability in the law—however, precedent may be wrong or it could be a case of first impression.

Legal Traditions: used when provision is not clear in the text. - No clear tradition, or lots of different traditions, the tradition may be wrong. Sometimes there is a an overlap between consensus and legal tradition.

Contemporary Values: reflects consensus values—con: social trends change constitutional meanings. - People’s constitution so the people’s values will be encapsulated. However, the purpose of the constitution is to insulate people against the will of the majority. There is a lot of instability in people’s opinions. Now we are not looking at the law as it is written anymore

Policy Judgments: made by judges. A lot of judicial decisions have policy implications, justice is the purpose of the constitution. Problems with turning to policy: separation of power concerns. Policy is supposed to be made by congress. Often don’t have clear answers.

Activism v. Restraint

Activist Conception of the Judicial Role- non deferential to legislatures, text in light of consensus values and policy concerns, protect minority rights

Living Constitution: emphasizes contemporary values and policy judgments
Chase

Restraint: courts should be deferential to elected policy making institutions, interpretation should take into consideration original understanding and our oldest legal traditions. Respecting majority rule

Historic Constitution: focuses on history as an interpretive method; courts cannot change unless amended.
Iradell

Calder v. Bull: debate over natural law

Chase: judges can strike laws that violate “natural justice”. : In an activist fashion, in interpreting the Constitution, we have to take into consideration the purpose of the constitution: to promote natural rights/justice. So if something isn’t explicitly unconstitutional, but it is unjust, then it is implicitly unconstitutional.
Iradell: Court can enforce only the Constitution—must look to the text as the interpretive source. Policy decisions that are not expressly unconstitutional, then it is for the legislature to determine whether or not it is unjust

The Living Constitution v. the Historical Constitutional

Living Constitution: the constitution should be flexible, written with the expectation that it would last. Values consensus values. Can respond to changes in facts and values. Interpret the constitution based on contemporary values and policy.
Historical Constitution: these are meant to serve as constraints. Purpose of constitution is to limit and restrain governenment. The constitution should be limited to the original understanding of the constitution and older legal traditions. Flexibility diminishes the meaning of the constitution.

Philosophy of Free Expression:

The Search for Truth: “the marketplace of ideas”. Free speech allows us to find the truth they are searching for. Assumes rational decisions are made.

2. Self-Governance: political speech must be allowed to inform the public who form the democracy.

3. Individual Autonomy: human freedom requires one to be allowed to express themselves without fear of government censorship.

4. Catch-all Category:

a. Checking Function: free speech holds government in check.

b. Safety Valve: free speech should allow socially harmful speech to occur…allows one to “blow off steam”

c. Tolerant Society: allowing speech teaches others to be tolerant

d. Article of Peace: if the majority does not censor the minority, there is civil harmony

History of Free Speech

“Congress shall make no law . . . abridging the freedom of speech” - First Amendment
Three Possible Meanings of Free Speech:
Blackstone: no prior restraints, but subsequent punishment for bad tendency is okay.
Madison: only political speech is protected from prior restraints and subsequent punishment.
Federalist: congress has NO power to regulate free speech, but states have ALL the power. The 1st Amendment says “CONGRESS shall make no law....” States can do whatever the hell they want.
Sedition Act (1798): First federal limitation on free speech which prohibited the publication of false, scandalous and malicious writings against the government with intent to defame. USSC never made a ruling on the constitutionality of the Act. It expired in 1801.
Elements to look at when analyzing speech:
Intent
Express language: advocating violation of law
Probability/ Clarity
Presence/ Imminence
Danger of Harm
Result

UNLAWFUL ADVOCACY

Shaffer v. US (1919) Early decision that is not very speech protective

Shaffer prosecuted under Espionage Act for mailing book that said “patriotism is murder.”
Test: BAD TENDENCY- speaker intended the natural and probable consequences of his speech.
Intent is inferred.

MASSES:
Postal Service refuses to mail magazine because of content.
Judge Learned Hand doesn’t like fact based determination.
Test: to restrict speech, must have express language of law violation. EXPRESSINCITEMENT test.
Speech that does not expressly and directly incite violation of the law is protected.
Con: May be overprotective if speaker is dangerous, but doesn’t use express language.
SCHENCK:
Publication of leaflet to hinder recruitment
HOLMES: Clear and Present Danger Test!!
Not clear that this is anything other than a Bad Tendancy test.
Clear and Present Danger test- government should be able to suppress speech if it creates a clear and present danger. The speech must attempt to bring about the evils that Congress has the right to protect against

Potential Elements of Clear and Present Danger

Clarity and probabibility
Imminence and presents- when is it?
Degree of Danger
Intent-
Express words

Problem with Schenck is the ambiguity of the term “clear and present danger”

Frohwerk v. United States- man prepares articles for German language newspaper. Opinion same year as Schenck, written by Oliver Wendel Holmes

“a little breath might be enough to kindle a flame”- sounds like the bad tendency test. Frohwerk doesn’t say clear and present danger

Debs v. United States- leader of the socialist party convicted of attempting to obstruct enlistment and talks highly of draft dodger

Also does not use clear and present danger language. Uses language that refers to natural tendency and reasonable probability. Sounds as much like a bad tendency test as something more protected.

*Although Holmes’ opinion in Schenck used the CPD language, it appears that it was nothing more than the BT test being employed. Later that year, Holmes used the BT test in Frohwerk and Debs.

Abrams v. United States- a group of Russian immigrants created pamphlets calling for a strike

Court upheld conviction citing bothSchenck (Clear and Present Danger) andFrohwerk (Bad Tendancy).
Intent can be inferred from words.

Holmes In the dissent: unless speech creates a clear and present danger, then it is protected. The intent was not to create a danger in the war against Germany.
Holmes Dissents: the speakers had not intent. Wanted to use clear and present danger test. Demanded either a significant level of clarity, imminence and dangerOR intent. [more speech protective]
Holmes wants to use new version of Clear and present danger rather than Bad tendancy because bad tendancy doesn’t protect speech criticizing the government.

Policy justification for clear and present danger test- market place of ideas. If we let these broad tests rule, then there will be no significant discussion

The Court has used 3 tests:

Bad Tendency: Shaffer. Does not protect government criticism (b/c all has BT).
Express Language: Masses/ L. Hand
Clear and Present Danger: Schenck/ Holmes. May not be very speech protective. Only punishes when people listen to what you say.

Gitlow v. New York- 1925

Member of Socialists party distributes manifesto advocating overthrow of gov’t.
State statute prohibits this. Important: First time 1st Amd. is incorporated (through 14th Amd.).
Test: REASONABLENESS TEST- give deference to state legislatures so long as they were reasonable.
Ct cited both Schenck (CPD) and Frohwerk/Debs (BT), but ultimately defers to the legislature.
Holmes Dissents: wants to use Clear and present danger test- absent a Clear and present danger or intent to produce a Clear and present danger, speech is protected. Holmes supports marketplace of ideas.

So, even if the court believes the speech does not have a bad tendency, then it’s still illegal as long as the legislature was reasonable in its belief

WHITNEY:

Member of Socialist group advocates overthrow of government in violation of state statute.
Court follows Gitlow and uses Reasonableness Test. Defer to state legislature.
Brandeis dissents: Advocates clear and present danger test (similar to Holmes).
Remedy for bad speech (in non-emergency situation) is more speech OR good speech.

DENNIS:
Throws out reasonableness test.
Test: NEW CPD Test: Gravity/Probability of Harm v. Value of Speech. [looks like the balancing test swiped from L. Hand.
New test is a more fluid and balancing version of CPD.

After Dennis, current court was using three different versions of CPD:
Holmes/Brandies’s CPD: CPD or intent to produce CPD
Fluid Balancing Test: Dennis- gravity/probability v. value
Bad Tendancy version of Clear and Present Danger: Abrams, Frohwork, Debs.

BRANDENBURG:
Clan speech at KKK rally.
Modern Test: Advocacy If we have advocacy that is directed to or inciting imminent lawless action, or is likely to produce that imminent lawless action
This is a Clear and Present Danger type test
Elements:
Intent: directed to
Express language: advocacy
Clarity/Probability: likely
Imminence/ Presence: imminent
Danger: lawless action
New test is verySPEECH PROTECTIVE.

Court avoids using the words “Clear and Present Danger”- the language is nice, but there is too much ambiguity in the precedent as to what it actually means

Balckmon/Douglas Concurrence- We should be staying away from clear and present danger language and test. If we apply a free speech test that leaves open probability and danger, then the courts will allow political actors to suppress speech in times of crisis. They want a more absolute test.

Applications of the Brandenburg Test:

HESS:
“we’ll all take the fucking street later”
By using word later, statement lacked imminence element.
CLAIBORNE HARDWARE:
“if you shop at the stores, we’ll break your necks”
Statement lacks likelihood andimminence.

Re-cap of different tests Court formulated:

1)Bad Tendancy: Blackstone

2)Express Incitement Test: Massey

3)Clear and Present Danger as Bad Tendancy Test: Holmes

4)Clear and Present Danger as Speech Protective Test

5)Reasonableness Test: Gitlow, Whitney

6)CPD Balancing: Dennis- Gravity/Prob. of Harm v. Value of Speech

7)Brandenburg Test: advocacy directed to inciting or producing imminent lawless action likely to incite or produce that imminent lawless action.

HOSTILE AUDIENCE RESPONSE

Hostile Audience Response is similar to advocacy of unlawful conduct, we have a speaker speaking to the crowd and a fear that bad things will happen. The difference is that the speaker is engaging in words of provocation, which might provoke the crowd to engage in violence.

We also have to be concerned with the heckler’s veto, if you encourage the audience to get violent or rowdy to arrest the speaker, then you’re allowing the crowd to limit speech

Also worried about police connivance, shut down the speaker

Cantwell v. Connecticut- 1940 Jehovah’s Witness running around the streets with a phonograph that attacks the Catholic Church

Test for Hostile Audience Response!!!!
INTENT or EXPRESS LANGUAGE OF PROVOCATION…
…To create a Clear and Present Danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order.
Under the facts, Court found no intent to create a Clear and Present danger nor any express language of provocation.

There was no intent to create a clear and present danger.
There was no express words

Terminiello v. Chicago- 1949- He’s a anti-semitic preacher, preaching to a friendly crowd, auditorium protected by popo, angry crowd outside calls them “slimly scum”, bedbugs, and snakes. Prosecuted for disorderly conduct

Follows Cantwell Clear and Present Danger test looking for intent or express language of provocation.
Held jury instruction violated 1st Amendment by not including language of Cantwell.

FEINER:
Speaker called political figures “bum” who do “not speak for the negro people”
Court applies Clear and Present Danger test and found defendant had intent and used express language.
Also, there was 1 speaker, 2 cops, and crowd of 80. Thus, cops acted in good faith.
This test may create a heckler’s veto.
Heckler’s Veto: suppression of speech of one person because of the beliefs of crowd.
Black’s Dissent: Doesn’t defer to Terminiello and finds under the facts that no Clear and Present danger exists. Cops could have controlled crowd had they attempted. Popo connivance

Far cries from Feiner

These three cases, involving protesters during the Civil Rights Era, indicate that Justice Black’s fear of the heckler’s veto was real. The Court overturns these convictions – but doesn’t articulate a clear hostile audience test. It does appear, though, that the clear and present danger test still applies – and the Court doesn’t always look at police motivation.

EDWARDS:
180 peaceful protestors, 30 cops, 200 onlookers.
“Far cry from Feiner”. There was a sufficient police presence to forestall any danger of disorder.
Holding may not have been because of speech, but because of ratio of police presence.
There was no clear and present danger where (1) no threat of violence and (2) police were sufficient in number to control potential riots.
COX:
2,000 black protestors do peaceful sit-in, 75 officers, 200 on-lookers.
No references to certain people.
Court held arrests unconstitutional and found an attempt to exercise a heckler’s veto.
GREGORY:
85 protestors, 100 cops, 1,000 whites in crowd.
“Far cry from Feiner II”. HOWEVER, facts look most similar to Feiner.
Nowlin: Chief Justice Warren doesn’t like Feiner opinion.
Edwards, Cox, and Gregory follow Black’s dissent in Feiner: concern for the heckler’s veto and recognition of police duty to quell crowd.

Hostile Audience Response Test Today: Court never says what the test is. Could use either:

3 cases [Edwards, Cox and Gregory] use Cantwell’s Clear and Present Danger test.

The test for speech that elicits a hostile audience is Cantwell’s clear and present danger test, as gleaned from Brandenburg. But the test looks at not advocacy, but provocation. The test considers clarity, presence, danger, intent, and express language. But it seems to hint, as Justice Black’s dissents urged, that the police have a duty to protect the speaker’s speech, especially in the face of a heckler’s veto.

FIGHTING WORDS

CHAPLINSKY:
Members of the city hall are “god-damned racketeers”.
Court outlines a two level theory of speech: high value and low value.
Fighting words are low value speech and should thus be unprotected.
Fighting Words- words which inflict injury or tend to incite an immediate breach of the peace.
Court gives nonexclusive list of low-value, unprotected speech:
Lewd, Obscene, Profane, Libelous, Insulting, Fighting words.
Court doesn’t use Brandenburg test because they want to create a bright-line category to supplement the Cantwell Clear Present Danger test.
Fighting Words requires:
Abusive insults likely to cause breach of peace.
Face to face encounter
Purport to describe an individual
Directed to that individual
It is a fuzzy category, not clearly defined.
Note: insults to 3d parties probably NOT fighting words.

Application of Chaplinsky

Street v. NY 1969 (black burned an American flag in publicwhen learning Meredith was shot at and said we don’t need no damned flag) Court: remarks were not inherently inflammatoryso as to come within a narrow class of fighting words.

Cohen v. Cal 1971 (fuck the draft on the jacket) Ct: notdirected at any person.

Gooding v. Wilson 1972 (white SOB, I’ll kill you to apoliceman). Ct: statute overbroad.

When do I apply Cantwell Clear and Present danger test OR Fighting words test?
Fighting words for small encounter
Cantwell Clear and Present Danger for speakers in front of crowds
What if audience of 5-10 people and 1 speaker?
Nowlin not sure…maybe, apply both tests.

PURE CRIMINAL SPEECH

Unprotected Category!
No, Supreme Court decision on this, but we know it’s unprotected because crimes such as solicitation, conspiracy, and actus reus for accomplice liability exist.
If you get a case in the middle (b/t express incitement Brandenburg and pure criminal speech) argue both.

Hypos: