CH 2: The First Amendment

plurality opinion

A Supreme Court opinion in which five justices cannot agree on a single majority opinion- there is no opinion of the court- but that is joined by more justices than any other opinion in the case.

Smith Act

A federal law adopted in 1940 that makes it illegal to advocate the violent overthrow of the government.

bonds

A large sum of money given by a publisher to a government to be held to ensure good behavior. Should the publisher violate a government rule, the bond is forfeited to the government , and the newspaper or magazine cannot be published against until a new bond is posted.

Espionage Act

A law adopted by Congress in 1917 that outlawed criticism of the U.S. government and its participation in World War I in Europe.

fighting words doctrine

A legal doctrine that permits prior censorship of words that create a clear and present danger or inciting an audience to disorder or violence.

heckler's veto

A situation that occurs when the audience's negative, adverse and sometimes violent reaction to the message conveyed by a peaceful speaker is allowed to control and silence the speaker. The duty, instead, should be on the government to protect the speaker rather than to allow a "veto" of the speech by the audience.

overbreadth doctrine

A statute or regulation will be declared unconstitutional if it sweeps up and bans a substantial amount of protected speech in the process of targeting unprotected speech; in other words, the doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the same process.

Sedition Act of 1918

An amendment to the Espionage Act adopted in the midst of World War I that severely limited criticism of the government and criticism of U.S. participation in the European War. Crime to attempt to obstruct the recruiting service. It was also criminal to utter or print or write or public disloyal or profane language that was intended to cause contempt of the government, the constitution, the flag or the uniform the armed forces.

Meiklejohnian Theory

Free speech is protected not as an end in itself but as a means to self-government, to the functioning of our democracy. Hierarchical approach with political speech placed at the top. However, he says that a broad range of speech is essential to successful self-government.

The First Amendment Barrier

Governments have traditionally used taxation as a means of controlling press. The First Amend has posed a substantial barrier to such efforts. Taxes levied only against the press that tend to inhibit circulation or impose other kinds of restraints are unconstitutional. Taxes levied against mass media based solely on the content of the particular medium are generally regarded as unconstitutional.

First Amendment

Guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual's religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the right of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government.

Gitlow v. New York- importance

Importance of ruling is that the high court acknowledged that the Bill of Rights places limitations on the actions of states and local governments as well as on the federal government. This is known as the incorporation doctrine.

Gitlow v. New York

Initially it appeared the First Amendment was irrelevant because it was a New York state law under which Gitlow was prosecuted, not an act of congress. Court ruled that the Fourteenth Amendment to the U.S Constitution had acted the reach of certain provisions of the First Amendment.

Preferred Position Balancing Theory

Instead of a case-by-case approach, the scales are weighted in favor of free expression becomes easier to build a case in favor of the broad interpretation of freedom of expression under the First Amendment.

Near v. Minnesota

Justice ruled any law that targeted publishers or "malicious" or "scandalous" newspapers violated the First Amendment.

Alien and Sedition Acts of 1798

Laws adopted by the Federalist Congress aimed at stopping criticism of the national government by Republican or Jeffersonian editors and politicians. Forbade false, scandalous and malicious publications against the U.S. government, Congress and the president.

Criminal syndicalism

Laws that outlaw advocacy, planning or processes aimed at establishing the control over industry by workers or trade unions. Prohibited the display of a red flag or a black flag.

Seditious libel

Libeling the government; criticizing the government or government officers. It is sometimes called sedition.

prior restraint

Prepublication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment of a perpetrator after the material has been published or broadcast.

Prior restraint

Prepublication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment of a perpetrator after the material has been published or broadcast. Is unacceptable in most instances, there are times when it must be tolerated if the republic is to survive. The press has stopped publish material the courts believed to be too sensitive. (Pentagon papers/ History of Vietnam/ Thermonuclear weapons)

John Peter Zenger

Published the New York Weekly Journal. Newspaper was sponsored by politicians. Jailed for publishing attacks on his sponsors political opponent to silence him. Jurors ignored British sedition law and acquitted Zenger- an early example of Jury Nullification.

dicta

Remarks in a court opinion the do not speak directly to the legal point in question.

Brandenburg v. Ohio

Ruled that advocacy of unlawful conduct is protected by the Constitution unless it is directed toward inciting or producing imminent lawless action and is likely to incite or produce such action. We use the Brandenburg test to determine liability in blaming.

Marketplace of Ideas Theory

Society's ultimate good is better reached by free trade in ideas Today the economics-based marketplace metaphor "consistently dominates the Supreme Court's discussion of freedom of speech" primary goal is discovery or truth

jury nullification

The controversial power of a jury, despite its sworn duty under oath to apply a law as interpreted and instructed by a judge, to instead ignore ( and thereby to "nullify") a law and decide a case according to its own conscience and sensibilities or, as the U.S. Supreme Court once put it, the ability of a jury to acquit "in the teeth of both law and facts."

Supreme court rejects accès theory in Miami Herald v. Tornillo 1974

The first amendment does not give the government the right to force a newspaper to publish the views or ideas of a citizen. The Tornillo case sounded the legal death knell for this access theory for print media.

counterspeech

The preferred remedy for speech that we disagree with is not censorship, but to add more speech to the marketplace of ideas in order to counter it or to rebut it.

licensing

The process by which a government gives a publisher or a broadcaster prior permission to print a newspaper or operate a broadcasting station. Revocation of a license can be used as punishment for failing to comply with the law or the wishes of the government. Licensing of the printed press in the United States ended in the 1720s.

absolutist theory

The proposition that the First Amendment is an absolute, and that government may adopt no laws whatsoever that abridge freedom of expression. No law means no law.

strict scrutiny

The standard of judicial review for content based statutes, requiring the government to prove that it has a compelling interest (an interest of the highest order) in regulating the speech at issue and that the means of serving that interest are narrowly tailored such that no more speech is restricted than is necessary to serve the allegedly compelling interest.

symbolic speech doctrine

The two-part judicial test yes to determine when conduct rises to the level of "speech" withing the meaning of the First Amendment. The Person engaging in the conduct must intend to convey a particularized message with his or her conduct and there must be a substantial likelihood, under the circumstances in which the conduct takes place, that some members of the audience will understand the meaning that was intended.

Abrams v. United States

U.S. Supreme Court Justice Oliver Wendel Holmes Jr. wrote " But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas- that 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 their wishes safely can be carried out."

Example of Heckler's veto

When The New York Times' Chris Hedges, "a war correspondent who sharply criticized the war in Iraq, had to cut his speech short after he was repeatedly interrupted by boos and his microphone was unplugged twice" during a commencement address at Rockford College In Illinois.

Seven first amendment theories

absolutist theory, ad hoc balancing theory, preferred position balancing theory, meiklejohnian theory, marketplace of ideas, access theory, self-realization

Access Theory

argues that people have right of access to mass media skewed in favor of those with the most economic resources. To make the guarantees of the First Amendment meaningful, newspapers, magazines and broadcasting stations should open their pages and studios to the ideas and opinions of their readers and listeners and viewers.

Ad Hoc Balancing Theory

case-by-case approach more of a strategy than a theory also known as the chilling effect because if citizens cannot reasonably predict whether a particular kind of expression might be protected or prohibited, they will have the tendency to play it safe and keep silent. Example- Freedom of the press might outweigh the need for the government to keep secret the design of its new rifle, but the need for secrecy about a new fighter plane might take precedence over freedom of expression.

Self-Realization/ Self-Fulfillment Theory

speech can be inherently valuable to a person regardless of its effect on others it can be an end in itself