THE FIRST AMENDMENT, THE PRESS, AND THE CONSTITUTIONAL ORDER

Fall 2017 Syllabus[1]

Professor David Rudenstine[2]

“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” New York Times Co. v. United States, 403 U.S. 713, 717, Justice Black Concurring (1971).

A February 17, 2017 report in the The New York Times by Michael M. Grynbaum stated: “At 4:32 p.m., shortly after arriving at his Mar-a-Lago home in Palm Beach, Fla., Mr. Trump took to Twitter to write:”

ODDS AND ENDS

There is no textbook in this course. All reading assignments are U.S. Supreme Court opinions with a few notable exceptions set forth in the syllabus.

The course meets 39 times. Generally, it meets on Monday and Thursday at 11am and on Tuesday at 10am.

The final grade will be a composite of the open-book examination and class participation.

SUBJECT MATTER

The course addresses a very controversial topic that is daily in the news—the functions and freedoms of the press in the American republic. It posits that the nation’s political system as defined in the Constitution is not sustainable without a vibrant, robust, cantankerous and untethered press.

The course addresses this topic at a time when the President of the U.S. repeatedly attacks the press. Although those attacks are not unique in American history, their frequency and vigor have been exceedingly rare.

What will make this course important is not just the readings but what you, as students, think of the readings. The more you invest, the more intense will be the learning on a subject critical to the democratic order. And while your opinions will be shaped by a lifetime of experience, your starting values are fundamental. This is your nation and within a short time you will have the opportunity to effect great change.

Justice Brandeis used to say that the most important office holder in the nation is the citizen. Yet as we shall see, every generation of citizens has been responsible for its own liberty and security, a reality that imposes a special responsibility on you as law students.

ORGANIZATION OF THE COURSE

This course is divided into two parts. The first concerns the evolving theory and doctrine of a highly protected American press. The second concerns legal doctrines by which legal limits have been imposed on the press.

PART I: The Evolution of the Theoretical Constitutional Foundation of a Protected Press

The ultimate question addressed in Part I of the course is: How did United States law pertaining to the press develop from the Constitution and the First Amendment--by way of the seminal World War I cases to today.

To better understand that development, this course takes the novel approach of organizing the relevant case law not by doctrine (e.g. seditions libel, reputational libel, privacy, hate speech, etc) but by grouping the Part I readings chronologically.

Several assumptions support this approach:

POLLINATION: What the Supreme Court may state about the scope of protection for the press in one doctrinal setting may spill over and influence how the Court defines the protection of the press in another setting. For example, how the Court defines the power of the government to authorize damages for an injury to reputation may influence how it then decides whether the publication of truthful but private information warrants a damage remedy against the press. Similarly, how the Court defines the power of government to criminalize speech may influence its approach to deciding whether the government may obtain a prior restraint to bar publication of certain information. Or, even more extreme, what the Court states about the right to distribute handbills or the right of conscience may subsequently color the way it defines the right of the press to report certain information. This pollination dynamic in the development of case law is obscured when cases are organized by doctrine. Since we want to understand how the press in the U.S. has come to be the most protected press in the world, we need to track a century of entangled case law in historical sequence.

CONTEXT: As we well know, Supreme Court justices “read the newspapers.” They are aware of the historical context in which cases arise; how they understand that context may shape the decisions they reach and their supportive reasoning. One of the most poignant illustrations of this dynamic is the Denniscase, involving the criminal conviction under the notorious Smith Act of the leaders of the American Communist party. The case was decided at the height of the McCarthy period in 1951 and the opinion by Chief Justice Vinson reveals an acute sensitivity to perceived (albeit grossly exaggerated) threats to national security. Read chronologically, the Vinson opinion dramatically illustrates how context may powerfully trump precedent.

Another example would be the Red Scare cases decided in the 1920s. During those years, individuals who urged domestic violence to promote political agendas were suspected of ties to the Bolshevik revolutionaries in the new Soviet Union. The fear of alien terrorism seems to have influenced Court decisions even in cases that involved political radicals engaged in only peaceful activities.

COURT MEMBERSHIP: It is naïve to think that only precedent rules and that the predilections of individual justices are irrelevant to deciding a case. Presidents who appoint justices to the Court do not think that precedent handcuffs judges; senators who must confirm the appointments do not think that; lawyers who travel to out-of-the-way places to “judge-shop” do not think that; and any serious student of the Court and its history does not think that. So we should not think that either.

Surely, precedent matters. But so does the nature of the individuals who sit on the Court—their political, sociological and philosophical outlooks; their cherished values; their conception of government and the role of the Court in that government. The Constitution and its amendments are, at critical points, written in broad terms of debatable meaning. Consider the wording of the First Amendment, which provides in part that “Congress shall make no law … abridging the freedom of speech, or of the press.” The Supreme Court has never read those words literally as a strict prohibition. Consequently, the Court has always allowed Congress to pass some laws abridging freedom of speech and of the press. And once some limits are held lawful, the obvious question becomes how much Congress may abridge the press’s freedom. And the answer to some extent depends on who is answering. Is it Justice Hugo Black or Justice Ruth Ginsburg? Chief Justice Warren Burger or Chief Justice John Roberts? By reading important cases chronologically, we will find it easier to keep track of doctrinal shifts as the membership of the Court changes. Since the purpose of Part I is to understand how and why the protections of the press changed over the last century, it is important that we spotlight not only pollination and historical contingency but also the character of the individuals who are dressed in black robes but issue orders backed up, when necessary, by the barrel of a gun.

THE FIRST DOCUMENTS

  1. Monday, August 28. Introduction: The U.S. Constitution, the First Amendment (1791). Read the U.S. Constitution and the Bill of Rights. The question to consider is how democratic or undemocratic was the 1789 constitution? Be prepared to identify specific aspects of the constitution to illustrate the general point. Then turn to the Bill of Rights and ask: what if any impact did the Bill of Rights have the democratic or undemocratic nature of the constitutional order? In thinking about this question, pay special attention to the First Amendment Speech and Press clauses. In thinking through these issues keep in my mind the main theme of the course: the role of the press in a democratic order.
  1. Tuesday, August 29. The Sedition Act of 1798. What follows below is the Sedition Act of 1798. We will discuss this statute during this class. This highly controversial statute expired by its own terms in 1801. It was adopted only seven years after the First Amendment was adopted. The statute was promoted by supporters of the Federalist Party of the 1790s, especially the supporters of President John Adams, in an effort to have at hand a legal weapon to use against President Adams’s political opponents, essentially the Republicans lead by Thomas Jefferson, as the presidential election of 1800 came into focus. Many criminal prosecutions were brought to enforce the statute, and they were brought mainly if not solely against Republican Party targets. The act expired before it was reviewed by the U.S. Supreme Court. In Times v. Sullivan, decided by the high court in 1964, Justice Brennan opined that history had judged the 1798 act unconstitutional. For our purposes, we want to know what conduct or speech the act criminalized and what defense if any a defendant might offer. Read the act carefully and be prepared to discuss various hypotheticals.

FIFTH CONGRESS OF THE UNITED STATES:
At the Second Session,
Begun and help at the city of Philadelphia, in the state of Pennsylvania, on Monday, the thirteenth of November, one thousand seven hundred and ninety-seven.

An Act in Addition to the Act, Entitled "An Act for the Punishment of Certain Crimes Against the United States."

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction, before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years; and further, at the discretion of the court may beholden to find sureties for his good behavior in such sum, and for such time, as the said court may direct.

SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

SEC. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defense, the truth of the matter contained in publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

SEC. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, that the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.

Jonathan Dayton, Speaker of the House of Representatives.
Theodore Sedgwick, President of the Senate pro tempore.

I Certify that this Act did originate in the Senate.
Attest, Sam. A. Otis, Secretary

APPROVED, July 14, 1798
John Adams
President of the United States.

Transcriptions courtesy ofthe Avalon Projectat Yale Law School.

REVISITING OPINIONS BY JUSTICES HOLMES AND BRANDEIS IN CASES CONCERNING WORLD WAR I AND A RED SCARE.

An initial mini-theme within Part I will be an assessment of opinions by Justices Holmes and Brandeis in the development of First Amendment law. Holmes wrote the majority opinions in Patterson and years later in Schenck, Frohwerkand Debs. Yet within months of judging that World War I trio concerning the federal Espionage Laws, Holmes dissented in Abrams, another wartime case, without casting the slightest shadow over his competing opinion in Schenck.In part because of his dissent in Abrams, Holmes enjoys standing in the Pantheon of great American jurists but read in sequence, his opinions produce a cloudier record.

In thinking about Holmes, we will spend an entire class on the Debs case, reading not only the Court’s opinion but also the speech Debs gave in Canton, Ohio, which resulted in his 10-year prison sentence. Debs was an internationally known labor leader and Socialist who twice ran for the U.S. presidency—once in 1912, when he received about a million votes, and again in 1920, while imprisoned, when he received about nine hundred thousand.

Apart from Holmes, we want to focus on three Brandeis opinions.

Brandeis concurred in Holmes’s dissent in Abrams, and then he wrote the dissent in Schaefer and Pierce (See class for September 12) in which Holmes concurred. Both the Schaefer and Pierce cases concerned the federal Espionage Laws, as did the Schench, Frohwerk, Debs, and the Abrams cases.

The Gitlow case, in which Holmes dissentedand in which Brandeis concurred, and the Whitney case,in which Brandeis wrote a concurrence and in which Holmes concurred (classes set for September 14 and 18), discussed state criminal syndicalism statutes that were adopted by many state legislatures in the twenties in response to political activities that were judged as presenting a serious threat to organized government.

  1. Thursday, August 31. Patterson v. Colorado, 205 U.S. 454 (1907). Schenck v. United States, 249 U.S. 47 (1919). Frohwerk v. United States, 249 U.S. 204 (1919).
  1. Tuesday, September 5, Speech by Eugene Debs, Canton, Ohio, June 16, 1918 (The speech is easily found on the Web). Debs v. United States, 249 U.S. 211 (1919).
  1. Thursday, September 7. Masses Publishing Co. v. Patten, 244 Fed. 535 (S.D.N.Y. 1917). Ultimately this remarkable opinion was reversed by the Second Circuit. This opinion by District Judge Learned Hand involved postal restrictions imposed on the socialist news magazine called The Masses (published from 1911-1917), was important in shaping Hand’s thinking on the subject, and Hand had a substantial impact on Holmes’s thinking on the subject when they accidentally met on a train in the summer of 1919.
  1. Monday, September 11. Abrams v. United States, 250 U.S. 618 (1919). Pay particular attention to the Holmes dissent.
  1. Tuesday, September 12, Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920). Focus on the Brandeis dissent in each opinion.
  1. Thursday, September 14. Gitlow v. New York, 268 U.S. 652 (1925). Pay particular attention to the Holmes dissent.
  1. Monday, September 18. Whitney v. California, 274 U.S. 357 (1927). Pay particular attention to the Brandeis concurrence.

[1]The syllabus is being posted at this time, even though it will in time be slightly modified, in order to give students an understanding of the subjects to be studied. As noted below, Max Frankel, former executive editor of The New York Times, will attend most of the classes. In addition to Mr. Frankel’s attendance at many classes, it is hoped that the seminar will have other guests on particular subjects.

[2] After ten years of lawyering for legal services and the NYCLU, David Rudenstine joined the Cardozo faculty in 1979. Rudenstine served as the Associate Dean for Academic Affairs (1994-1996), Acting Dean (1996-1997) and Dean (2001-2009). In addition to two books written in the 1970s, Rudenstine has written The Day the Presses Stopped: A History of the Pentagon Papers Case (1996), and The Age of Deference: The Supreme Court, National Security and the Constitutional Order (2016). He is currently writing a book about the cultural property dispute between Greece and England over the marble sculptures Lord Elgin took off the walls of the Parthenon in the early nineteenth century.