Chapter 2 Free Speech

First Amendment

" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Citizens United vs. federal Election Commission (political speech)

- 2010 supreme court decision, provision to BCRA prohibiting unions/corporations/non-profit organizations from broadcasting electioneering communications within 60 days of general election or 30 days of primary election violates the free speech clause of the 1st amendment -corporations have a 1st Amendment right to expressly support political candidates for Congress and the White House

Texas vs. Johnson (political speech)

- Greg Johnson burned an American flag in protest of the Reagan administration's policy. Though many were angered at the time, no one was injured or threatened with injury.- - In order for TX to win, it must prove that it has a compelling state interest in passing that law. - ISSUE:What constitutes freedom of Speech? Specifically with this case, what constitutes the communicative nature of conduct when related to flags? Issue May a state prohibit a political protester from burning the American Flag? - NO, Liberal - -"expressive Conduct" --His burning of the flag is expressing a political idea. -...."if there is a bedrock principal underlying...govt may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." - Hes arguing what the American flag stands for. -government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. - It is also important to note that it was Jonson's USE of this particular symbol(the flag), and not the idea that he sought to convey by it or by his many other expressions, for which he was punished....CAN'T DO THAT HAHA

Buckley vs. Valeo (political speech)

- ISSUE: Is limiting contributions to political campaigns constitutional? Is limiting expenditures in political campaigns constitutional? -A case in which the Supreme Court of the United States upheld federal limits on campaign contributions and ruled that spending money to influence elections is a form of constitutionally protected free speech. -The government may not restrict expenditures in political campaigns because such expenditures are forms of political expression protected by the First Amendment to the United States Constitution. However, the government may impose restrictions on the amount of a person's contributions to political campaigns.

Dennis vs. United States (political speech)

- In 1948, the Attorney General indicted two key Communist leaders for violation of the Smith Act of 1940 which prohibited conspiring to teach violent overthrow of the government. They were convicted in a 6-2 decision and their appeal was rejected. - no free speech, publication and assembly, if that exercise was in furtherance of a conspiracy to overthrow the government. - Clear and present danger for revolution Dissent: black- no clear and present danger -The "clear and present" danger test did not pass in his opinion because there was no plot to overthrow the Government just a group assembling to speak ideas and express their First Amendment rights.

John Stuart Mill

- Progress- person has to have freedom and their ability to discuss - we need the freedom to think and discuss-- social activities - social interaction is not always good/ useful- some forms that cause us to not think certain thoughts and not act in certain ways- why? -no novelty without discussion- without discussion there is no prospect of seeing things differently - it is bad for society to limit our political discussions- if we cant say certain things- we cant think a certain way -Congress shall make NO LAWS if you're a Textualists its easy to see an absolute coalition atleast against political speech --Any society who limits political discussion is bad. -Political speech has the highest level of protection

Abrams vs. United States (political speech)

- espionage act -The court upheld the Sedition Act of four Russian immigrants who had printed pamphlets denouncing American military intervention in the Russian Revolution. The nation's highest court thus endorsed the severe wartime restriction on free speech. -supreme court decision that made it a criminal offense to urge curtailment of production of the materials necessary to the war -ISSUE: Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment? -- NO and NO! does not violate first amendment -hey saw sufficient evidence to see that this was deliberate and with mal intent against the U.S. government and therefore a violation of the Espionage Act.

Schenck v. United States (political speech)

- espionage act- aimed at stopping certain kinds of speech during war -Schenck appealed his conviction alleging that the Espionage Act was an unconstitutional violation of the First Amendment guarantee of free speech. He was found guilty of sending leaflets that urged draft age men not to submit to the intimidation of the draft and that the draft was a violation of the 13th Amendment (involuntary servitude) - concluded that a defendant did not have a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft. - Founding of CLEAR AND PRESENT DANGER [free speech] the question is: is this speech creating a clear and present danger? -the war time context is important because the speech was causing unrest and if Schenck was successful the draft would not work

Brandenburg vs. ohio (political speech)

-A leader of the KKK was convicted of terrorism as a means of accomplishing industrial or political reform and for assembling people to follow this practice under Ohio law. He challenged the Ohio statute under the 1st and 14th Amendments. - ISSUE: May a state prohibit advocacy of violence without distinguishing between mere advocacy from incitement to imminent lawless action likely to produce violence? - Supreme court overturns this. the Supreme Court held that the First and Fourteenth Amendments protected speech advocating violence at a Ku Klux Klan rally because the speech did not call for "imminent lawless action" GOT TID OF "clear and present danger test"- simply because saying it would be great if cops were shot on the way means nothing. if he said cops will be shot on a specific time/date- that would be different -- He said unless that speech is going to lead to imminent lawless action and violence, that language cannot be prohibited. - such a statue falls within the condemnation of the First and Fourteenth Amendments. -Court set up a two rule system for determining when the states can overrule free speech. 1. Expressly advocate violence 2. Advocate immediate violence 3. Relate to violence likely to occur

Whitney vs. California (political speech)

-Charlotte Anita Whitney, a socialist, helped found the Communist Labor Party, which was a group dedicated to causing social, political, and economic changes to the United States by any means necessary. She was arrested for violating the Californian Criminal Syndicalism Act of 1919. She was tried and convicted by this law based on her association with the Communist Labor Party. Whitney appealed the conviction claiming that her 1st amendment right to the freedom of speech should be protected by the due process clause and the equal protection clause of the 14th amendment. - ISSUE: Does the Californian Criminal Syndicalism Act abridge Whitney's rights due to the first and fourteenth amendment? - In a unanimous decision, the Court sustained Whitney's conviction and held that the Act did not violate the Constitution. -The decision is most notable for the concurring opinion written by Justice Brandeis, in which he argued that only clear, present, and imminent threats of "serious evils" could justify suppression of speech.

New York Times Co. vs. Sullivan (political speech)

-Claim of libel by public official -Sullivan of Montgomery, AL sued NYT for defamation of character (libel) -NYT published advertisement that Montgomery was racist -In trail showed some of statements were false. - Sullivan awarded 500k in demanded NYT appeals. - Established the "actual malice" standard. In cases of libel or slander, public figures must prove that the author had "knowledge of falsity and reckless disregard for the truth." -ISSUE: may a public official recover damages for a defamatory falsehood relating to his official conduct without proving that the statements were made with actual malice?--> No, Sullivan cant collect damages unless he can show malice intent. -The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed and the decision was reversed .

New York times Co. vs. United States (political speech)

-Government can almost never use prior restraint (crossing out sections of an article before publication)-protections for the press were established here. Defense Department employee Daniel Ellsburg leaked some confidential files indicating that the war in Vietnam was going poorly, the government sought to prevent the publication of these "Pentagon Papers" by the New York Times. Court held that executive efforts to prevent the publication violated the 1st Amendment were forbidden -ISSUE: whether the constitutional freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. - The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment.

4 categories of unprotected speech

-libel, obscenity, fighting words, and commercial speech

2 parts of 14th amendment

1) due process clause- no person shall be deprived by a state of liberty, life, or property without due process of the law (applies to state in this amendment) 2)equal protection clause

Clear and Present Danger test

The test is when the court takes into consideration the actual danger to security posed by the speech at question. - if it presents clear and present danger, the court can limit it.

Prior Restraint

censorship imposed before a speech is made or a newspaper is published; usually presumed to be unconst.

due process

the following of proper legal procedures. Due process is essential to guaranteeing fairness before the government may deprive a person of life, liberty, or property. The Fourteenth Amendment to the U.S. Constitution requires states to respect these procedures and has been interpreted to command the states to abide by most of the U.S. Bill of Rights.