Media Law Chapter 2 EXAM ONE (Lecture Notes)

The case of: U.S. v. Bell (2005)

A federal appellate court upheld a permanent injunction barring Thurston Paul Bell from promoting and selling unlawful tax advice on his website Ruled that the usually heavy presumption against prior restraint here "does not apply to restriction on unprotected speech, including false or unlawful commercial speech"

The Case of: U.S. v. Progressive (1979)

A reporter gathered information from unclassified sources on how to build an H-Bomb to run in the April 1979 issue of Progressive magazine The U.S. government found out about publication before release of magazine, and asked courts for a permanent injunction against publication The U.S. District Court ruled Progressive magazine could be enjoined from publishing the article as specific details were not necessary to carry out an informed debate on nuclear issues Progressive appealed its case, but before an appellate court could hear the case, a Wisconsin newspaper ran the same story, and the government withdrew its case, leaving the case with little precedential value

"No law" means no law; an absolute protection against censorship by Congress of speech or the press Few Supreme Court justices have adopted this position (Black and Douglas). What is this example of?

Absolutist theory

There are Seven First Amendment Theories of Freedom of Expression. What are they?

Absolutist theory Ad hoc balancing theory Preferred position balancing theory Meiklejohnian theory Marketplace of ideas Access theory Self-realization

Free speech and press rights are not meaningful to citizens unless they have access to media outlets If media will not voluntarily allow use of airwaves or print, then government should force this access (1960s view) This is an example of

Access Theory

When free speech and press rights conflict with other important rights, courts must balance these freedoms Determined on a case-by-case basis This is an example of:

Ad hoc balancing theory

Signed into law by President John Adams in 1798, the _________ consisted of four laws passed by the Federalist-controlled Congress as America prepared for war with France. These acts increased the: residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States" and restricted speech critical of the government. These laws were designed to silence and weaken the Democratic-Republican Party.

Alien and Sedition Acts of 1798

Printers often required to deposit large sums of money with government (bonds), that would be forfeited if inappropriate material was printed

Bonds

____________________ was convicted by court-martial in 2013, after he was found guilty of 20 counts relating to the transmission of state secrets to WikiLeaks. Outside the courtroom, the consequences of what amounts to a major escalation in the US government's war on whistleblowers are beginning to sink in.

Bradley Manning

This was active in South prior to this kind of war with restrictions on abolitionist literature. Also This was prominent on both Union and Confederate side during war.

Civil War Censorship

What shall congress do in the First Amendment to the United States Constitution?

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

Negative reaction to the Alien and Sedition Acts helped contribute to the Democratic-Republican victory in the 1800 elections. (from Library of Congress website) With this, what did they do?

Extended the period prior to naturalization, and gave the president power to detain and deport non-citizen residents Forbade false, scandalous or malicious publications against the U.S. government, Congress or the president (BUT NOT the VP-Jefferson) John Adams (a Federalist) was president at time law was passed Law aimed at silencing criticism in Jeffersonian newspapers There were 15 prosecutions under the Sedition Act; 8 of those prosecuted were editors of Jeffersonian newspapers Adams lost his bid for re-election in 1800 in large part due to his attempts at silencing critics with the Sedition Act The Sedition Act expired in 1801. No future PEACETIME sedition law passed until 1940 (1917 was during wartime) Jefferson, now president, pardoned all those who had been convicted under the Act.

True or False: Speech necessary for self-governance is not protected absolutely by First Amendment (private speech is balanced against other rights) (link to Meiklejohn Civil Liberties Inst.)

False (It is always protected by First Amendment)

When Congress has made seven attempts to overrule the U.S. Supreme Court by passing a constitutional amendment making an exception to the First Amendment in order to allow the government to ban flag desecration. In 1990, when the amendment was first brought up, it failed to achieve the necessary two-thirds majority in the House. After the Republican congressional takeover of 1994, it has consistently passed the House but failed in the Senate.

Flag Desecration Amendment (1990, 1995, 1997, 1999-2000, 2001, 2003, 2005-2006):

In 1989, the U.S. Congress protested the Johnson decision by passing the Flag Protection Act, a federal version of the already-struck state flag desecration statutes. Thousands burned flags in protest of the new law, and when two protesters were arrested, the Supreme Court affirmed its previous ruling and struck down the federal statute. This is the example of:

Flag Protection Act (1989-1990):

What was the Espinoge Case of Edward Snowden?

In 2013, Snowden revealed thousands of classified NSA documents to journalists. Charged with two counts of violating the Espionage Act of 1917

What was the Espinoge Case of Julian Assange of Wikileaks

In 2019, U.S. indicted Assange for alleged computer intrusion, related to the leaks provided by Chelsea Manning. Later in 2019, the United States government further charged Assange with violating the Espionage Act of 1917.

Under strict scrutiny, the state must prove: The following two things. What are they?

It has a compelling interest of the highest order to regulate the content, and The regulation restricts no more speech than necessary to advance that interest

If someone publishes something that causes another to engage in violence, publisher can be punished. Sedition = incitement of discontent/rebellion vs. gov't. This is the ____________

Legal theory of sedition:

What was the Freedom of the press in Colonial America

Licensing lasted until the 1720s in the colonies Taxation, though part of the colonial system, was often ignored by printers. Colonial governments had difficulty enforcing since American juries were reluctant to convict.

Printers had to obtain prior approval from government or church before printing newspapers or pamphlets.

Licensing or Prior Restraint:

o Public Speech Speech or press that advances self-governance . . . Should always be protected o Private Speech Speech or press that addresses anything other than self-governance . . . Should not be protected absolutely; not essential to self-governance Both are examples of

Meiklejohnian theory

Access theory was struck down in __________ by the U.S. Supreme Court, which held: Choice of content in newspapers must be made by editors, no First Amendment right to force paper to publish citizen views

Miami Herald v. Tornillo (1974)

Media products that have been challenged in court include The following Three things. What are they?

Movies: EX: The Basketball Diaries, Natural Born Killers Video Games: EX: Grand Theft Auto, Mortal Kombat, Resident Evil, [Washington Navy Yard suspect Aaron Alexis obsessed with violent video games like Call of Duty] Books: EX: Hit Man

What was the percentage of the First Amendment of State in 2019?

Nearly 30% OF AMERICANS SAY THE FIRST AMENDMENT "GOES TOO FAR" IN THE FREEDOMS IT GUARANTEES OVER 70% OF AMERICANS REMAIN GENERALLY SUPPORTIVE OF THE FIRST AMENDMENT

In the article of the First Amendment, what did they agree on in the 18th century

No prior restraint of publishers No licensing of publishers No punishment for seditious libel

When balancing conflicting rights, speech and press are preferred - given greater weight - than other rights Today, courts use this theory more often than any other This is an example of:

Preferred position balancing theory

The Court Case of: Near v. Minnesota, 283 U.S. 697 (1931)

Procedural History: Complaint filed in state district court that Near's paper constituted a public nuisance under state law (as malicious, scandalous, or defamatory) and should be enjoined. Near denied that the statements met the conditions of the statute and invoked protection under the due process clause of the 14th Amendment.C ase went to trial and court issued permannet injunction as a public nuisance. The judgment perpetually enjoined the defendant from publishing or distributing the publication. Near appealed to Minnesota Supreme Court. Judgment was affirmed. Near then appealed to U.S. Supreme court. Facts: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials (e.g., chief of police, member of grand jury), charging that they were implicated with gangsters, also criticized the mayor and county attorney. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a public nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Issue Does the Minnesota "gag law" violate the liberty of the press guaranteed by the 14th Amendment? Holding: Yes, the Minnesota "gag law" violates liberty of the press guaranteed by the 14th Amendment (which incorporates freedom of the press as one of the "liberties" of U.S. citizens protected against infringement by states.) Opinion/Rationale (J. Hughes): The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment (incorporated through the 14th Amendment due process clause). The Court held that the statutory scheme constituted a prior restraint ("previous restraint" in case) and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. Concurring Opinion (none) Dissenting Opinion: (J. Butler. - Van Devanter, McReynolds, Sutherland): Opinion of the Court makes Minnesota and other states powerless to restrain by injunction publications of malicious, scandalous, and defamatory periodicals that had been determined to be a public nuisance. . . . The Act was passed in the exertion of the State's police power, which the Court is required to assume is justified. The statutes does not authorize prior restraint such as was formerly exercised by licensors and censors, but instead provided a remedy to be enforced by a suit in equity court. Prior Restraint - Pentagon Papers Title: New York Times v. United States, 403 U.S. 713 (1971) Procedural History: U.S. government sought an injunction in U.S. District Court for SDNY against publication by NYT of contents of classified study entitled "History of U.S. Decision-Making Process on Viet Name Policy" and in US District Court for District of Columbia, sought injunction against Washington Post for same purpose. Each District Court denied injunctive relief. The Court of Appeals for DC affirmed the judgment of the DC for DC, but the Court of Appeals for 2nd Circuit remanded the case to DC for SDNY for further hearings. U.S. Supreme Court granted certiorari. Facts: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Issue: Did the Nixon administration's efforts to prevent the publication [impose a prior restraint] of what it termed "classified information" violate the First Amendment? Holding: Yes. The governnment did not meet its heavy burden of showing justification for the imposition of the prior restraint. D.C. Circuit Court affirming denial of injunctive relief was affirmed. Court of Appeals for 2nd Circuit decision remanding case to District Court for SDNY was remanded with directions to enter a judgment affirming the judgment of the DC for SDNY. Opinion/Rationale: In its per curiam opinion (6-3) the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. [VERY SHORT ACTUAL OPINION] Textbook notes that the government did not show why its request for injunction was vital to the national interest. The court did not say that in all similar cases an injunction would violate the First Amendment. It merely said that in this case the government had not shown why the injunction was needed and why it was NOT a violation of freedom of the press. KEY-The Court did not rule that such prior restraint was unconstitutional, only that the government had not met the heavy burden of showing compelling government interest in this case. • Concurring opinion (Black - Douglas): • Concurring opinion (Douglas - Black): • Concurring (Brennan): • Concurring (Stewart - White): • Concurring (White-Stewart): • Concurring (Marshall): • Dissenting Opinion (Burger): • Dissent (Harlan) • Dissent (Blackmun) The Supreme Court ruled the New York Times and Washington Post could publish historical documents that led to U.S. intervention in the Vietnam conflict The Court here did not say the Times and Post had a First Amendment right to print this story, just that the government failed to make a strong enough case for prior restraint

The Court Case of: Whitney v. California, 274 U.S. 357 (1927)

Procedural History: Anita Whitney was convicted, Superior Court of Alameda County, California; affirmed, 207 P. 698 (Cal. Ct.App, 1922); review denied, Supreme Court of California, 6-24-22; dismissed for want of jurisdiction, 269 U.S. 530 (1925); rehearing granted, 269 U.S. 538 (1925). Facts: Whitney was member of Oakland Branch of Socialist Party. Went to national convention, organization split, Oakland group left to form the Communist Labor Party of America. Later Whitney attended a convention in Oakland called to establish a California branch of the CLP. She was part of creating resolutions in support of Communist Party of Moscow and America, advocating use of political power, testified that she did not advocate for CLP of CA to be instrument of terrorism or violence or to violate laws. She was convicted of violating the California Criminal Syndicalism Act and convicted on one of five counts. Criminal Syndicalism is defined as any doctrine "advocating, teaching, aiding and abetting committing crime, sabotage, or unlawful acts of force and violence or terrorism to accomplish change of industrial ownership or control, or effecting any political change" (i.e., REVOLUTION!!). Whitney was convicted on one court that charged her in November 1919 in Alameda County of organizing and assisting in organizing and was a member of an organization assembled to advocate criminal syndicalism. Issues: Did this California Statute violate Whitney's constitutional right to freedom of speech -- part of the liberty guaranteed to her by the due process clause of the 14th Amendment restricting states from limiting U.S. citizens' "life, liberty, and pursuit of happiness." (See 14th Amendment below) Holding: Lower court ruling upholding conviction affirmed, no violation of First Amendment freedom of speech or assembly and association. Opinion (Justice Sanford): [I do not see any language in Sanford's ruling about Schenck, in contrast to textbook claim on pg. 59). Sanford did not directly examine whether the California law violated the First Amendment. WHY? First Amendment only specifies laws that CONGRESS may not make. AMENDMENT XIV SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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 the laws. (we will discuss Gitlow v. New York (1925) in a few slides on the Incorporation Doctrine). Concurring Opinion (Brandeis): Brandeis states that the novelty in the California prohibition is that the statute aims not at the practice of criminal syndicalism, nor the preaching of it, but at association with those who propose to preach it. He also notes that the due process clause of the 14th Amendment protects all fundamental rights comprised within the term "liberty" from invasion by the states (e.g., free speech, right to teach, right of assembly). These are fundamental rights, but they are not absolute. He set forth a standard for clear and present danger test: • Argued that the founding fathers valued liberty as means and end, and freedom of speech and thought was essential to discovery of political truth. . . . Fear of serious injury alone is not sufficient to justify suppression of free speech and assembly. • Goal of speech is to free men from bondage of irrational fears. (Thus, fear of witches was not justifiable as reason to burn women). • "To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. . . • In order to support a finding of C&PD it must be shown either that o (1) immediate, serious violence was to be expected or advocated, or o (2) that the past conduct furnished reason to believe that such advocacy was then contemplated. KEY: The evil apprehended must be so imminent that it may befall before an opportunity for full discussion. If there is time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression!! . . . It is therefore always open to Americans to challenge a law abriding free speech and assembly by showing there is NO EMERGENCY justifying it!! PDH: Brandeis seems to be incorporating a "marketplace of ideas" view along with a preferred position balancing theory of the First Amendment.

The Course Case of: Schenck v. United States, U.S. Supreme Court 249 U.S. 47 (1919)

Procedural History: Appeal from U.S. District Court for ED of PA. Schenck was charged with three counts in indictment (1) conspiracy to violate Espionage Act by causing insubordination in miltary and to obstruct the recruiting and enlistment service of the U.S. by circulating pamphlet designed to cause such insubordination and obstruction, also (2) conspiracy to use mails in support of the crime (Crime under Espionage Act), and (3) unlawful use of the mails for this purpose (Crime under Espionage Act). Facts: Schenck was General Secretary of Socialist Party. The Philadelphia Socialist Party authorized him in August 1917 to publish 15,000 copies of a pamphlet protesting U.S. involvement in World War I. Pamphlet said "do not submit to intimidation" and "Assert your rights" and "oppose the draft." Issues: Does Espionage Act violate Schenck's First Amendment rights under Freedom of Press and Speech? Holding: Supreme Court AFFIRMED judgments that upheld defendant's convictions under the Espionage Act, held not to be in violation of the First Amendment. Opinion/Reasoning (Justice Holmes): Court found that the key is to determine whether the circumstances in which the words were used, and the nature of the words, create a clear and present danger that they will bring about the substantive evils that CONGRESS has a right to prevent. It is a question of Proximity and Degree. When nation is at war many things that might be said in peacetime are such a hindrance to its war effort that "their utterance will not be endured" and "no court could regard them as protected by any constitutional right." • NOTE: Court commented on the fact that the Espionage Act of 1917 only punishes conspiracies to obstruct as well as actual obstruction of recruiting service. Sedition Act amended the Espionage Act to capture language that might not have been directed at obstructing recruitment or enlistment, but at other matters government wanted to restrict. Concurring Opinion: None Dissenting Opinion: None Significance: Slate.com states that President Obama in June 2013 had prosecuted 8 people under Espionage Act, more than all other Presidents combined. It adds that the Act was never intended to be used to prosecute leakers of government information. Edward Snowden did not sell or give secrets to foreign governments; her merely blew whistle on what he saw. This is NOT espionage. (link: http://www.slate.com/blogs/the_slatest/2013/06/22/edward_snowden_is_eighth_person_obama_has_pursued_under_espionage_act.html • This was the introduction of an ad hoc balancing test for First Amendment vs. other rights.

The Court Case of: Gitlow v. New York, 268 U.S. 652 (1925)

Procedural History: Defendant Benjamin Gitlow was convicted, Supreme Court of New York for statutory crime of criminal anarchy. Judgment was affirmed by Appellate Division and the Court of Appeals. Case appealed to U.S. Supreme Court on writ of error. (A writ emanating from an appellate court, demanding that a lower court convey the record of a case to the appellate court so that the record may be reviewed for alleged errors of law committed during a juridical proceeding. Although § 2255 does not expressly abolish the writ of error, the writ no longer plays a significant role in criminal proceedings. According to the Supreme Court, "it has become difficult to conceive of a situation in which the writ would be necessary or appropriate.") (Cornell LLI) Facts of the Case Benjamin Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" (created for faction of Socialist Party opposed to opposed to "moderate socialism") that called for the establishment of socialism through strikes and class action of any form [including "revolutionary mass action" and mass industrial revolts"]. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Issue 1: Did the New York law punishing advocacy to overthrow the government by force deprive the defendant of his liberty of expression in violation of the due process clause of the 14th Amendment? Underlying Issue: Do First Amendment protections apply to state laws? Holding: No, the NY statute did not violate the due process clause of the 14th Amendment. Opinion/Rationale (Sanford): The New York Statute did not penalize speech or publication or publication of abstract doctrine without incitement to concrete action to overthrow the government. The statute prohibited language advocating the overthrow of the government by unlawful means. These words imply "urging to action." The Court found that the language in Defendant's manifesto was direct language of incitement and that the statute is not an arbitrary or unreasonable exercise of the police power of the State unjustifiably infringing on freedom of speech or press. Why is this case relevant? The defendant's conviction was affirmed!! The court made clear that "we may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgement by Congress - are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. Dissenting Opinion (J. Holmes, Brandeis joined): Agree that the principle of free speech must be included in the 14th Amendment as part of the word "liberty" used there. However, in this case, the publication of the left wing Manifesto was NOT an attempt to induce an immediate uprising against the government; instead, it was at best at some indefinite time in the future. This was no clear and present danger in this case of government overthrow - Court should have applied test as articulated in Schenck v. U.S. Prior Restraint: • Prior restraints by government are presumptively unconstitutional • Require compelling government interest • Must be narrowly tailored

The Court Case of: : Brandenburg v. Ohio, 395 U.S. 444 (1969)

Procedural History: Defendant convicted, Court of Common Pleas, Hamilton County, Ohio, (Dec. 5, 1966); affirmed without opinion, Court of Appeals of the First Appellate District of Ohio, (Feb. 16, 1968); appeal dismissed without opinion, Supreme Court of Ohio(June 12, 1968), appeal to U.S. Supreme Court. [Petitioner appealed judgment from Supreme Court of Ohio, which, after finding that petitioner had not presented a constitutional issue for appeal, upheld petitioners conviction under the state's criminal syndicalism statute. Facts: Clarence Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally. Held at a farm in Hamilton County near Cincinnati. Reporter and cameraman attended the rally and filmed the events which were later broadcast on local station and national network. Guns were at the rally and a wooden cross was burned. Brandenburg was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Issue: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? [Remember, in Whitney v. California (1927), Anita Whitney's conviction was upheld for violating California's criminal syndicalism statute. She did not support violence or terrorism, but her help in organizing CLP, which had members and was part of an organization that DID support violence to overthrow capitalism, led her conviction to be upheld by majority. Brandeis' concurrence was not the rationale in the Opinion of the Court.] Holding: Reversed. Yes, Ohio statute violated Brandenburg's First Amendment right protected under 14th Amendment. [NEXT PAGE FOR RATIONALE AND CONCURRING OPINIONS] Opinion/Rationale (8-0, per curiam opinion, Warren, Black, Douglas, Harlan, Brenna n, Stewart, White, Marshall) The Court's unanimous Per Curiam opinion overruled Whitney v. California, and held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The Ohio criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. • Restating: The constitutional guarantees of free speech and free press do not permit a state to forbid advocacy of the use of force or of law violation, except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action, and that since the Ohio criminal syndicalism statute, by its own words and as applied, purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, the statute violated the First and Fourteenth Amendments. Concurring Opinion (J. Black):C&PD doctrine should have no place in the interpretation of the First Amendment. Agrees with J. Douglas. Concurring Opinion (J. Douglas): Lists all cases that applied C&PD test to limit First Amendment rights, stating with Schenck. Doubts that the C&PD test is "congenial" to the First Amendment even in time of declared war, but is certain it is not reconcilable with First Amendment in days of peace. He sees no place in First Amendment regime for a C&PD test. Most of the prosecutions are merely for speech or actions that have symbolic speech characteristics. Even the classic case of "shouting fire in a crowded theater" is speech that is inseparable from the action that it of concern. A prosecution can be launched for the overt acts actually caused. Apart from such rare instances, speech is, to Douglas, immune from prosecution. [First Amendment ABSOLUTIST!!] Dissenting Opinion: None Significance: Some have argued that since September 11, 2013, the threat of "imminent lawless action" is heightened and that greater restrictions on speech are required. A law student article in the George Washington Law Review contends that the conviction of a Muslim ministers for advocating that others wage war on the United States was inconsistent with the test laid down in Brandenburg. (http://www.gwlr.org/wp-content/uploads/2012/08/76-3-Kantor.pdf)

The Court Case of: Dennis v. United States, 341 U.S. 494

Procedural History: Defendants convicted, S.D.N.Y., October 29, 1949; affirmed, 183 F.2d 201 (2d Cir. 1950). U.S. Supreme Court granted certiorari. Facts of the Case • Note: Court cannot review facts of case. This is just for context! For example, Court said it cannot determine whether petitioners actually did advocate overthrow of the Government by force. The jury found that Dennis and colleagues did advocate violent overthrow of the Government, although Dennis and others contended that Marxism-Leninism they advocated only taught that force and violence would be necessary because ruling classes would not permit transformation to Communism to occur peacefully. In 1948, the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Party leaders were found guilty [in Southern District Court of NY] and 2nd Circuit Court of Appeals upheld the conviction. Defendants appealed, arguing, in part, that there was no clear and present danger of overthrow. Question: Did the Smith Act's restrictions on speech violate the First Amendment? Holding: Smith Act did not violate the First Amendment. Affirmed lower court decision. Opinion/Rationale (6-2 decision, written by Justice Vinson, 2 concurring opinions, 2 dissenting opinions) In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas in planning to overthrow the government "as fast as circumstances would permit). Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences of an attempted overthrow, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech. KEY: Success or probability of success is not required to create a clear and present danger of overthrow of the government justifying restrictions on the right of free speech. KEY: In applying the clear and present danger rule which limits the statutory infringement of free speech, courts must ask if the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. Concurring opinion: (Frankfurter: the validity under the First Amendment depended on a balancing of competing interests that was within the province of the legislature and court should not disturb its judgment. Concurring opinion: (Jackson): a conviction for conspiring to advocate overthrow of the government does not violate right of free speech, even if there is NO C&PD of overthrow. Dissenting Opinions: (Black, Douglas)-separate opinions, focusing mostly on argument that there is no clear and present danger that would justify the statutory restriction on speech. NOTE: Black and Douglas are the two justices who subscribe to the First Amendment "absolutist" theory. Significance/Relevance: NONE

Between 1476 and 1776, the British used several means to limit or restrict the press in England (and its colonies). What were they?

Seditious Libel Laws Licensing or Prior Restraint Bonds

The rights to discuss, criticize and oppose the government is at the center of our political philosophy today. This is what we call _______

Seditious Libel and the Right to Criticize the Government

used to punish those who criticized the government or the Crown. It did not mater whether the criticism was true or not.

Seditious libel laws

Speech can be inherently valuable to a person regardless of its effects on others - it is an end in itself Expressing one's identity through speech This is an example of

Self-Realization/Self-Fulfillment theory

Sedition Act of 1918 made it a crime to do what?

State or print or write or publish disloyal or profane language intended to cause contempt of or scorn for the federal government, the Constitution, the flag or the uniform of the armed services

Outside the 1984 Republican National Convention in Dallas, Gregory Lee Johnson burned a flag in protest against President Ronald Reagan's policies. He was arrested under Texas' flag desecration statute. In its 5-4 ruling in Texas v. Johnson, the Supreme Court struck down flag desecration laws in 48 states by ruling that flag desecration is a constitutionally protected form of free speech. What example is this?

Supreme Court Strikes Down All Laws Banning Flag Desecration (1989)

Who introduced and advocated the Bill of Rights in the new constitution

The Bill of Rights was introduced and advocated by James Madison of Virginia during the First Congress, not incorporated into original Constitution (1787). Bill of Rights ratified by ¾ of states in 1791.

This Focused on stopping Communist Party of U.S. They Made it a crime to: i. Conspire to advocate the violent overthrow of the government i. Organize a group that advocated the violent overthrow of the government i. Be a member of a group that advocated the violent overthrow of government

The Smith Act (1940)

True or False: To justify regulations based on content, the strict scrutiny standard of judicial review must be satisfied.

True

True or False: Gutenberg invented the printing press by around 1440 in Germany. William Caxton considered to be person who set up first British printing press in 1476. No government restriction on printing yet.

True

True or False: In the new constitution, A Bill of Rights was not discussed until very late in the Constitutional Convention

True

True or False: Most recent immigrants favored the Democratic-Republican Party (Jeffersonians). Federalists were in power after George Washington's term ended. They did not want criticism of the government or the President.

True

True or False: Soon after, however, the British Crown and government realized that unrestricted publication and printing could dilute its power over information and thus, society.

True

Espionage Act of 1917 made it a crime, among other things, to:

Willfully convey a false report with the intent to interfere with the war effort Cause insubordination, disloyalty, mutiny or refusal of duty Willfully obstruct recruiting or enlistment (PENALTY= $10,000 fine or up to 20 years in jail)

What was the trial of John Peter Zenger? NOTE: This case DID NOT change seditious libel law at the time - no important legal precedent was set, but there were no successful prosecutions in colonies after this case.

Zenger was the publisher of the New York Weekly Journal His paper was supported by Lewis Morris and James Alexander, opponents of the unpopular colonial governor, William Cosby Zenger was jailed in November 1734 after publishing several articles critical of Cosby Although Zenger was clearly guilty under the seditious libel laws in place at the time, a jury acquitted him (today called jury nullification)

What was the Espinoge Case of Chelsea Manning

convicted of violations of the Espionage Act, after disclosing to WikiLeaks in 2010 nearly 750,000 classified, or unclassified but sensitive, military and diplomatic documents

What did the Freedom of Expression Protect in the 18th Century?

protected the rights of the speaker