Intro and Why Do We Care About Free Speech

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First Amendment Outline (Stone Fall 2010)

Intro and Why Do We Care About Free Speech

  1. Amendment I (1791)

    1. 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 a redress of grievances.”

      1. What is “freedom of speech”? What is “abridge”? “Congress”?

      2. Though text appears to be absolute, doesn’t really decide anything.

    2. No RIGHT to give a speech

      1. Ask “is the law under which a person is prosecuted constitutional as applied to them?”

      2. Same speech might be protected or unprotected depending on what law.

  2. Historical concept

    1. Probably intended to bar the use of prior restraints.

      1. Only about prior restraints? But if that was all, why adopt the 1A at all? Plausible understanding though.

    2. Probably did not intend FoS to include blasphemy and defamation.

    3. Seditious libel. Unclear what intended. Hotly debated at time. Many framers supported the Sedition Act of 1798 later.

    4. Overall, more about abstractions and open ended concepts than legalistic sense of what it would like in practice.

  3. Where to put the risk of uncertainty

    1. In general, we are hesitant to repudiate laws unless we are certain they are unconst, as sections of Const are anti-democratic and anti-maj, don’t want to usurp authority of maj – under this view, if we don’t know for certain they wanted to go beyond prior restraints, we wouldn’t take it farther.

    2. Guarantees of individual liberty should be interpreted expansively, err on the side of broadness – anything the framers might have reasonably thought would be a violation can be a violation.

  4. Theories of FoS

    1. Political Concept of FoS

      1. Speech as necessary for the effectiveness of a self-governing society, govt can’t control it.

        1. Problem – would leave lots of speech unprotected that wasn’t political

    2. Speech as about Culture, Autonomy and Decisionmaking

      1. Informs your world, influences your decisions in all areas

    3. Individual self-fulfillment and realization

      1. Right to speak a fundamental element of humanity and freedom

    4. Contemporary Marketplace of ideas

      1. Marketplace as a search for truth – best ideas will prevail

      2. Though, better to censor some out – too much speech makes a mess? In same way that laissez-faire doesn’t work in pure form

      3. But we don’t let the gov’t do the cleaning – we don’t trust them.

      4. Profound distrust of govt when it comes to regulating expression, especially when the expression is directly related to the govt’s ability to preserve its own power.

    5. Speech as a check on abuse of power

    6. Tolerant society – forces us to exercise self-restraint and be tolerant

  5. Speech is Easily Discouraged

    1. We often know our individual speech won’t change much, so often not worth the risk of jail, especially if the lines of what is punishable aren’t clear.

      1. Jail is an extreme consequence.

  6. Low value

    1. Assume speech is high value unless shown otherwise.

Content Based Restrictions




Express incitement

Specific Intent

Constructive Intent

  1. Two themes:

    1. (1) When is speech sufficiently dangerous to justify punishing it?

    2. (2) To what extent does the 1A or should 1A be understood as treating differently regulations of speech that do not further the purposes/goals/values of the 1A relative to other speech?

      1. Hand in Masses – not about danger, but EAUC doesn’t further purposes of 1A.

      2. Could argue that B only targets speech outside 1A protection.

        1. But would miss lots of dangers

  2. Four categories

    1. Expression that induces unlawful conduct (low value)

    2. Threats (low value)

    3. Provokes Hostile Audience Response

    4. Disseminates Confidential Information

  3. How applicable is C&P to all these categories?

  4. Remember, part of purpose of C&P is to force gov’t to take other reasonable steps, rather than the suppression of speech.

Expression That Induces Unlawful Conduct

  1. Closest analog to seditious libel – really punishing people bc of bad things they’re saying about the govt, but reframe to say punishing bc inciting others.

  2. Shaffer v. United States (9th Cir. 1919) –

    1. Shaffer convicted of violating Espionage Act. Had mailed a book saying the war was wrong. Court said that even though disapproval of the war and advocacy of peace were not crimes under the act, their natural and probable tendency was to produce the result condemned by the statute.

  3. Masses Publishing Co. v. Patten (SDNY 1917) pg 21 [Learned Hand]

    1. Espionage Act of 1917 – mostly concerned with espionage, but several provisions used against WWI dissenters. Prosecuted under bad tendency and constructive intent.

      1. (1) unlawful to cause or attempt to cause insubordination or disloyalty in the armed forces of the US

      2. (2) unlawful to obstruct recruiting/enlistment

      3. (3) gave postmaster general the power to exclude from the mails any written matter found to be in violation of the substantive provisions.

    2. Masses published revolutionary circular, pretty clearly anti-war. Postmaster saying violated Esp Act.

      1. Bad tendency - the natural and foreseeable consequences of the book would be to turn readers against the war.

        1. No need to prove intent – can be presumed.

        2. Analogy to speeding – can be ticketed even though no actual harm – bad tendency, causes harm.

        3. BT essentially makes seditious libel a crime.

    3. Learned Hand – interpreted Esp Act in such a way that pieces didn’t violate act. Didn’t say Act was unconst, but was clearly his view of 1A that it was.

      1. Concedes speech may have bad tendency, but says it is protected, not because it’s harmless, but because it’s valuable.

      2. Draws line at Express Incitement – must expressly advocate that readers do acts against the war.

        1. Draws line between 1 and 2, whereas criminal law would draw between 2 and 3.

          1. But unclear when you are in 2 or 3 (audience hears same thing, hard to determine speaker intent), that line would chill people in 3.

    4. Overturned on appeal. One of the great 1A opinions.

  4. Schenck v. US (1919) pg 24 [Holmes]

    1. SC first addressing of 1A – Holmes seems oblivious to importance and delicacy of needing to think about regulating speech.

    2. criticized war to draftees, convicted, argued 1A rights, unanimously upheld.

    3. 1A is more than about just prior restraints. Kind of an offhand comment, but stuck.

    4. Clear and Present Danger

      1. Fire in a crowded theatre

        1. Rebut notion that 1A is absolute.

      2. Also uses as a paradigm for when speech can be punished

        1. False fire creates a clear and present danger, therefore speech can be punished when it creates a clear and present danger.

        2. But what if there really is a fire? Still C&P danger, but wouldn’t punish because valuable.

          1. Should be: punishable if creates C&P and is False.

        3. Focuses more on danger than value to public discourse

  5. Clear and Present Danger Test

    1. (1) Clear

      1. significant probability that the danger will become a reality.

        1. Also balances degree of harm – less harm needs a higher probability

    2. (2) Present

      1. Presumably something about proximity in time between the speech and the feared harm.

      2. Is this already in probability? Timing indicative of our ability to predict probability?

      3. Insist on imminence

        1. Gov’t likely to overestimate the harm farther down the road.

        2. And if far down road, gov’t can take other steps to prevent the harm.

          1. Achieve goals by means other than suppressing speech.

        3. Fire analogy – instant rxn, know caused by speaker. If more time, audience had more time to think about it and make own decisions about whether to act unlawfully.

    3. (3) of a danger Cong as a right to prevent.

      1. Gravity of the harm. How to think about?

        1. Irrelevant – C&P enough

        2. Min level – littering not grave enough

        3. Variable – balance between the three – looking for a total gov’t interest above a certain amount – if more grave, need less clarity and presence.

    4. Idea is to be sure the state’s interest is sufficiently great to justify suppressing speech.

      1. Hopefully create a safe harbor for people to criticize the draft

    5. Problem – C&P not self-defining.

      1. Seems to be a fairly speech protecting test, but reality hasn’t been consistent with that.

  6. Frohwerk v. US (1919) pg 29 [Holmes]

    1. ∆ convicted under Esp Act of 1917

      1. Publication expressed admiration for those who resisted the draft, didn’t directly incite.

        1. Learned Hand prob would have overturned conviction.

    2. One week after Schenck, but no mention of C&P.

      1. 1A not meant to give immunity to all, a little breath can kindle the flames of harm.

      2. Inconsistent with what we would have thought C&P was.

  7. Debs v. US (1919) pg 29 [Holmes]

    1. ∆ leader of Socialist Party, speech on socialism, criticized war and draft, praised those who had refused. 10 year sentence. Conviction affirmed.

    2. Jury instruction – guilty if speech had the natural tendency to obstruct service – no specific intent requirement.

    3. [missed some stuff. Look into]

  8. Abrams v. United States (1919) pg 31

    1. Sedition Act of 1918 – crime to criticize the war, military, draft, flag, president, uniform of soldiers, in any way. Truth was no defense.

      1. Enacted bc a couple of judges had construed Esp Act narrowly, wanted to be unambiguous. Also meant to protect speakers – so clearly criminal, wouldn’t need vigilante acts by public (murders had happened in past to critics)

    2. Russian imms, leaflets calling for general strike, worried that real reason of war was to crush the Russian Revolution. Convicted under Sedition and something else (Esp Act?), concurrent sentences.

      1. Only reviewed other conviction, avoided having to outright uphold seditious libel.

    3. Holmes dissent

      1. First of the series of Holmes/Brandeis dissents. Gives birth to American tradition of American judicial tolerance and protection to free speech.

      2. Doesn’t say persecution for expression of ideas is bad (actually, it’s logical), but just not here.

        1. Does say Schenck, Frohwerk and Debs were all right.

      3. Present Danger of Immediate Evil test for regulating speech

        1. (1) Creates a present danger of an immediate evil, OR

        2. (2) If a speaker specifically intends to create such an evil.

          1. Intent element meant to weaken C&P

      4. (Circle for C&P, circle for intent – most strict provision would be to only criminalize where they overlap, but not what he’s doing)

      5. Applies test to Abrams

        1. Not sufficiently clear or present to justify (he doesn’t take the possibility of harm of these leaflets seriously)

        2. But why not convict on specific intent, the 2nd prong of the test?

          1. Said intent was to aid Russia. Conflating intent and motive?

      6. Holmes applying a C&P test he’d articulated, but that hadn’t been followed, and then criticizing maj for not following…

    4. Last 2 paragraphs, talks about 1A – why govt tends to suppress unpopular speech, marketplace of ideas justification, condemns notion of seditious libel. First time discussed like this by a justice.

  9. Schaefer, Pierce and Gilbert

    1. Three following cases, all 7-2 upholding convictions.

    2. McKenna in Gilbert talking about how every word ∆ had said was false – not talking about harm, talking about falsity – implicitly adopting seditious libel.

  10. Gitlow v. New York (1925) pg 36 [Sanford]

    1. Published Left Wing Manifesto, convicted under NY law of criminal anarchy. Called for revolution when the time was right (unlike Debs – change through avenues of gov’t). Was not during a time of war – the was peacetime

      1. Statute- advocates, advises or teaches the duty, necessity or propriety of overthrowing organized gov’t.

        1. Cleary states what kind of speech is problematic, unlike Schenck and Debs.

    2. Refused to instruct jury that it could convict only if it advocated immediate acts of violence or a likelihood that unlawful acts would actually occur – applied statute as written.

    3. Convicted, affirmed 7-2. But first time maj makes effort to figure out what 1A means.

      1. Court suggests 1A applies to states through 14th DP

        1. This opens door to many more cases to come before the court.

      2. Speech was different than before, in that express incitement was for the future (whereas Abrams was immediate and Masses/Debs was not express)

        1. For Holmes, easy – no C&P.

          1. Continuing the C&P charade that they’re the ones following the law, rather than just say we think precedent is wrong and we won’t follow it.

    4. What kind of SCRUTINY should be applied when the statute speaks directly to speech rather than acts?

      1. If statute only about acts, no express judgment about speech for the court to refer to.

      2. If about speech, should they defer as long as not unreasonable? Doesn’t really answer, but has trouble distinguishing 1A and 14A – in EP, if rational basis, we defer (ophthalmologist case)

      3. Think about function of judicial review – when is it important for the court to second guess Cong? Ophthalmologist, not so much, but race, there is. Regulating speech, there is.

    5. What would Hand say? Said expressly advocating unlawful conduct was outside 1A, but does that include future? Later writings – prob wouldn’t protect.

  11. Does C&P danger make sense?

    1. Make state wait for danger to be C&P before can act?

    2. Holmes in Gitlow - if people have bad ideas, the meaning of freedom of speech is that they should be given their chance, and if they’re adopted they’re adopted.

      1. But do we trust citizens enough? Nazi Germany.

      2. But do we trust the majority any more?

      3. Holmes thinks the 1A makes this choice for us – of the two risks, better to risk the people making bad choices than the gov’t.

      4. Fundamental point of 1A is to prevent us from banning ideas because we don’t like them.

        1. Allow people to hear ideas, make up their minds, and act on their ideas. But if the actions are illegal, can be punished for your actual actions

      5. Weird he brought this up in Gitlow, as this guy was actually advocating violence.

    3. Note: Holmes saying can’t be prosecuted just for your speech, but if your speech is prohibited to prevent bad acts, that’s ok  C&P danger situation.

      1. All about intent of the gov’t.

  12. Whitney v. California (1927) pg 41 [Sanford]

    1. ∆ attended 2 conventions of Communist Labor Party, due to membership was convicted of violating the CA Criminal Syndicalism Act. She actually opposed their tactics at the convention, but remained after they adopted the platform.

      1. Act prohibited becoming a member of any org that advocates crime/sabotage/unlawful acts of force/violence.

    2. Unanimous affirmation of conviction (H/B on technicality)

    3. Sanford found to be easy case – like Gitlow, give deference to the legislature if not unreasonable.

    4. Here, not prosecuted for her own speech but for her knowing membership with the org involved in the speech.

      1. What degree of involvement in that speech is necessary under the 1A for the gov’t to criminally punish individs that are involved in some way in the org?

        1. Post WWII, court said membership alone was not enough, need active membership and specific intent to further the unlawful goals.

      2. Is joining a club speech, or an act?

      3. Humanitarian Law Project – terrorist orgs, but also humanitarian work. Punishable. (case last term).

    5. Brandeis Concur- Explains our reasons for our commitment to free speech, tries to connect them to C&P

      1. 5 reasons attributable to framers: (1) believed final end of state was to make man free to develop faculties (2) indispensable to discovery of political views (3) eschew silence coerced by law (4) fitting remedy for evil counsels is good ones (5) didn’t exalt order at expense of liberty.

      2. Looks at all forms of potentially dangerous speech, says only punishable one is advocacy consisting of incitement and danger that may be immediately acted upon.

      3. Strengthens theoretical underpinnings of C&P standard.

        1. Suggests even express advocacy can’t be punished unless C&P and serious.

  13. Pelly

    1. WWII, convicted under false statements act (had formed the Silver Shirts – Nazi supportive org). Crime to make false statement to hinder the war.

      1. But had to prove falsity.

        1. Didn’t open door to as many prosecutions as WWI.

    2. Upheld conviction.

  14. Dennis v. US (1951) og 47 [Vinson]

    1. McCarthy era, criminal prosecution of leaders of the COmm party, 9 month trial, confirms conviction 9-2 (Black/Douglas dissent).

      1. Years between Whitney and Dennis, court coming to accord with H/B opinions.

    2. Here, was actual advocacy of violence. Vinson implies that might be different of prosecuted merely for political discussion.

    3. USES C&P DANGER review – not mere reasonableness.

      1. But modifies it. Adopts Hand’s interpretation from below: “In each case, courts must ask whether the gravity of the evil, discounted by its improbability justifies such an invasion of free speech as is necessary to avoid the danger.

        1. Watered down imminence.

        2. Redefined as a balancing test.

      2. Finds requisite danger, upholds. Makes no sense to wait til danger is at the front door.

        1. But to extent that anything is actually being advocated, it’s in the distant future. Danger is hardly imminent. Conviction should really be overturned.

      3. “Snatches defeat from the jaws of victory”

        1. Still more protective than reasonableness

    4. Frankfurter concur is the last gasp of the ad hoc, open ended reasonableness approach.

    5. Black/Douglas dissent – apply C&P as H/B wrote it, no showing of C&P here.

    6. NOTE:

      1. 7 of 8 justices reject Gitlow

      2. 7-8 agree that even some express advocacy is somewhat protected.

        1. 6 (not Black or Douglas) say that express advocacy of law violation is less protected than other expression though.

  15. Yates (1957) pg 55 [Harlan]

    1. Similar to Dennis, but overturned conviction.

      1. Dennis, court focused on danger, here, focused on the content of the advocacy. Saw that while saying bad acts might be necessary, hadn’t told them to do anything specific.

    2. Interpret Smith Act narrowly so that it seems to only reach express advocacy of imminent unlawful conduct [EAUC], avoid const Q.

      1. Seems to be moving toward Hand in Masses.

    3. Harlan Danger Zone – area where if Cong legislated, would be on thin ice – regulated speech that doesn’t expressly advocate.

      1. Act penalizing anyone who criticized the Vietnam draft – would be unconst, bc punishes speech other than that which EAUC.

  16. Two pre-Brandenburg cases

    1. Kingsley pictures

      1. Statute making it a crime to exhibit sexually oriented material encouraging or approving of pre-marital sex. Movie. Overturned conviction – if advocacy falls short of incitement and won’t be immediately acted upon, not illegal – quotes brandeis in Whitney.

      2. If not EAUC, can’t limit speech.

    2. Bond v. Floyd.

      1. GA legislature refused to swear in Bond bc he’d expressed support for Vietnam draft resisters. Speech wasn’t a call to unlawful action, can’t be punished, so can’t exclude him.

  17. Brandenburg v. Ohio (1969) pg 58 [Per Curiam]

    1. 50 years after Schenck, huge break from past decisions, though purporting to be simply stating current law. Statute almost same as in Whitney.

    2. 1A forbids gov't from forbidding even express advocacy of unlawful conduct unless speaker specifically intends to incite specific unlawful action and such action is likely to result imminently.

      1. Essentially combines Hand’s protective elements in Masses with most speech protective elements of H/B C&P danger.

      2. Doesn’t address gravity of the danger – later, clarifies must be very serious.

      3. Also, doesn’t explicitly say “express” is needed, this was just the speech at issue. Interpreted as such.

      4. “Likely” and “Imminent” – to shed ambiguity of C&P, and all their baggage. Replaces C&P danger.

    3. Today: can't punish unless express advocacy of Clear, serious, imminent danger that is very grave.

      1. Gravity of state’s interest alone is not enough to justify.

    4. Court meant what it said – Brandenburg treated as stated law for last 40 years.

      1. Is this too narrow? Does it miss speech that may actually cause harm? If court enforced narrowly, allowed speech that caused harm, would court lose legitimacy in eyes of public?

      2. Brandenburg meant to build a fortress around 1A, shield us from the temptations to under-protect speech, be influenced by the public – we can look back on WWI/WWII cases now and see that wrong, but seemed right at the time. A type of pre-commitment device to prevent us from making the same mistakes as our predecessors.

      3. Rigid rules also important because the “worst case scenario” that Dennis was trying at almost never happens. Tailoring rule around that scenario is oppressive to everything else

        1. And when worst case happens, can be sure gov’t will ignore rule anyway.

    5. Brandenburg protects in criminal situations. Does it give you a right in others? (say kicked out of school for expressly advocating – does school need to abide by Brandenburg?)

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