Author: Mr. Neal A. Davis
School: University of Texas
Course: Constitutional Law: The First Amendment
Year: Spring 1997
Professor: Prof. David Rabban
Book: Van Alstyne’s casebook, First Amendment (2nd Ed.)
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Con Law II: The First Amendment
Professor David Rabban
The University of Texas School of Law
By Neal A. Davis
--Professor Rabban’s class lectures
--Van Alstyne’s casebook, First Amendment (2nd ed.)
--Some outside sources (i.e., Laurence Tribe’s treatise)
--Dave’s exam is very straight forward—the issues are hardly subtle—which is another way of saying it is somewhat easy and thus the grading curve is really tight.
--The exam is also time-pressured to a certain degree. There are two questions with two sub-parts to each question, and three hours is given for the exam. The issues tend to be broad, so lots of writing is necessary.
--This is probably the best outline I have done, and this was in large part because Professor Rabban is such an outstanding teacher. This outline is intended as a classroom supplement, not as a replacement for attending class.
--Because there was so much material to cover, I was unable to outline the section on “Access to the Mass Media” and I did not spend a great deal of time outlining “Campaign Finance” (neither of which showed up on his exam).
“Congress shall make no law
respecting an establishment of religion,
or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble,
and to petition the Government for redress of grievances.”
--First Amendment (1791), U.S. Constitution
AMENDMENT XIV, SECTION 1
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law;
nor deny to any person within its jurisdiction
the equal protection of laws.
--Fourteenth Amendment (1868), U.S. Constitution
I. Background and Methodology (drawn from the Nutshell and cases)
The First Amendment and the States
The language of the First Am. states: “Congress shall make no law…” So how does the First Amendment, whose text refers only to the federal government, apply to the states?
Harlan’s dissent in Patterson: Harlan, in his dissent, argued
that the First Amendment applies to the states via the “privileges and immunities” and the “due process” clauses.
Privileges and Immunities (P&I) Clause: First, Harlan argued that the freedom of speech and the press are “attributes of national citizenship…of the United States,” and if the states abridged or impaired these privileges, then the states would violate the P&I clause of the Fourteenth Am.
Due Process (DP) Clause: Second, Harlan argues that he would go further than the P&I clause, and hold that freedom of speech and the press are “part of every man’s liberty,” and if the states impaired or abridged this liberty, then it would violate the DP clause of the Fourteenth Am.
b. Gitlow v. New York: Barron v. Baltimore (1833) held that the Bill of Rights (obviously, including the First Am.) only applied to action by the federal government. But Gitlow (1925) changed this, and held that freedom of speech and the press apply to the states because they are “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
There are a variety of different approaches to the First Am.:
“Marketplace of Ideas” Model: The U.S. Supreme could has most favored the “marketplace of ideas” theory. Its classical expression can be seen in Holmes’ dissent in Abrams: “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which men’s wishes can be safely carried out.” That is, truthwill be accepted by marketplace (the ultimate test).
Critics of the marketplace model argue that:
The assumption that a marketplace of ideas will produce the truth is false. Successful appeals to our emotions and basic instincts, the ability of demagogues to condition behavior, our natural tendencies to conformity and habit, etc., all challenge the notion that the masses will accept the “truth.” Think of Hitler’s Germany with his demagoguery about Jews.
From a democratic theory, it is the idea valued by the majority, false or true (not just the truth), which is the paramount value.
The marketplace is controlled by dominant media and entry to the media is far from free. The dominant media control not only entry but content, and exclude the participation by the citizenry at large. Thus, there is a flat-out “failure of the marketplace.”
“Citizen-Critic” Model: This approach emphasizes the value of freedom of expression to self-government in a democratic society. In the American polity, political sovereignty resides with the people. If they are to perform their self-governing function, then they must be free both to criticize their government and to receive information concerning its workings. As Brandeis wrote in Whitney, “Political discussion is a political duty.” Brennan wrote in New York Times v. Sullivan that the right of people to criticize government without fear of reprisal is “the central meaning of the First Amendment.”
In an age of mass society, mass media, and big government with resultant voter alienation, it is doubtful that the individual citizen is up to the tasks demanded by the idea of civic virtue.
c. “Liberty” Model: Freedom of speech is valued as an end in itself as well as a means. It is part of a person’s liberty. Free speech fosters individual self-realization and self-determination without improperly interfering with the legitimate claims of others.
1. One cannot choose to protect speech using this rationale any more than one protects other claimed freedom.
d. Other Various Models: The marketplace, self-government, and liberty models are the most commonly used justifications for protecting freedom of speech. But there are lesser-used theories:
“Safety-Valve” Theory: Brandeis in Whitney captured the essence of this approach when he warned “that it is hazardous to discourage thought, hope and imagination; that fear bread repression that repression breeds hate; that hate menaces stable government; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.”
“Tolerance” Theory: The special value of free speech lies in its ability to promote and teach tolerance. This view emphasizes self-restraint as the appropriate response even to the ideas we hate. Thus, if the Nazis marched through a predominantly Jewish suburb of Chicago, the proper response is not prohibition of the march but self-restraint while it takes place. Through the exercise of tolerance of different viewpoints, we learn how to better participate in a conflict-based society.
“Romantic Tradition”: The major purpose of the First Am. is to protect the romantics—those who would break out of classical forms: the dissenters, the unorthodox, the outcasts.
“Economics and Public Choice” Theory: Because the market does not naturally protect information, speech is somewhat vulnerable. Since the market has no natural inclination to promote speech, it is necessary to provide motivations for individuals to engage in the socially useful action of providing information. Government must not set up obstacles to that process; it is the responsibility of government not to over-regulate speech or suppress it. (Note how this is also a response to the “Marketplace of Ideas” Model).
“New Deal for Free Speech” Model: Cass Sunstein of the University of Chicago advocates that there should be a New Deal for free speech, much like there was a New Deal for economic reasons during the Great Depression. In other words, there should be restrictions on certain speech (i.e., hate speech, pornography, etc.) for the greater good, just as during the New Deal there were restrictions on the laissez-faire economy. Dave often refers to Sunstein’s “New Deal for Free Speech” in class. Many civil libertarians are frightened by this “New Deal” for speech for obvious reasons.