Mass Media Law CH 2 Textbook

government

it is very important to remember here that the First Amendment protects only against ________________ censorship. (The First Amndement thus does not apply or protect speech when a company like Facebook adopts a policy of censorship.)

Brandenburg test

Courts are frequently asked to rule in wrongful death, negligence and product liability lawsuits whether a media artifact like a film or recording played some part in inciting the actual perpetrator of the crime to commit illegal acts. To determine liability in such cases, courts often use the _______________________ for incitement to violence.

seditious libel; John Peter Zenger sedition *jury nullification* rare

*The most famous case of government censorship in the American colonies was the _________________________ trial of immigrant printer __________________,* who found himself involved in a vicious political battle between leading colonial politicians in New York, Zenger published the New York Weekly Journal, a newspaper sponsored by Lewis Morris and James Alexander, political opponents of the unpopular colonial governor, William Cosby. Zenger was jailed in November 1734 after his newspaper published several stinging attacks on Cosby, who surmised (figured out) that by jailing the printer-one of only two working in New York-he could silence his critics. there is little doubt that Zenger was guilty under the 18th century British ___________ law. But his attorneys, including the renowned criminal lawyer Andrew Hamilton, were able to convince the jury that no man should be imprisoned or fined for publishing criticism of the governemnt that was both truthful and fair. Jurors simply ignored the law and acquitted the German printer. It was an early example of what today is called ____________________________-the power of a jury in a criminal case to ignore (and thereby to "nullify") a law and to return a verdict (typically a not guilty verdict) according to its conscience. While certainly controversial and relatively ______, jury nullification can be seen as an essential part of the legislative process becasue a law that is repeatedly nullified by juries probably should be revised or discarded by the legislative body that created it.

William Caxton

When __________________ set up the first British printing press in 1476, his printing pursuits were restricted only by his imagination and ability as there were no laws restricting what he could not print.

Pentagon Papers

Another important, well-known Supreme Court ruling on prior restraints came in 1791 and addressed the federal government's ability to stop publication of stolen, classified information that it contended jeopardized national security during the war in Vietnam. This is the famous ____________________ decision. The case began in the summer of 1971 when the New York Times, followed by the Wahington Post and a handful of other newspapers, began publishing a series of articles based on pilfered copies of a top secret 47-volume government study offically titled "History of the United States Decision-Making Process on Vietnam Policy." The day after the initial article on the so-called Pentagon Papers appeared, Attorney General John Mitchell asked the New York Times to stop publication of the material. When The Times' publisher refused, the governemnt went to court to force the newspaper to stop the series. A temporary restraining order was granted as the case wound its way to the Supreme Court. The government also sought to impose a similar injunction on the Washington Post after it began to publish reports based on the same material. At first the government argued that the publication of this material violated federal espionage statutes. When that assertion did not satisfy the lower federal courts, the government argued that the president had inherent power under his constitutional mandate to conduct foreign affairs to protect the national security, which includes the right to classify documents secret and top secret. Publication of this material by the newspapers was unauthorized disclosure of such material and should be stopped. This argument did not satisft the courts either, and by the time the case came before the Supreme Court, the government argument was that publcation of these papers might result in irreparable harm to the nation and its ability to conduct foreign affairs. The Times and the Post made two arguments. First, they ssaid that the classification systemis a sham, that people in the government declassify documents almost at will when they want to sway public opinion or influence a reporter's story. Second, the press argued that an injunction against the continued publication of this material violated the First Amendment. Interestingly, the newspapers did not argue that under all circumstances prior restraint is in conflict with the First Amendment. Defense Attorney Alexander Bickel argued that under some circumstances prior restraint is acceptable-for example, when the publication of a document has a direct link with a grave event that is immediate and visible. Apparently, both newspapers decided a victory in that immediate case was far more important than to establish a definitive, long-lasting constitutional principle. They therefore concentrated on winning the case, acknowledging that in future cases prior restraint might be permissible. On June 30 the high court ruled 6-3 in favor of the New York Times and the Washington Post and refused to block the publication of the Pentagon Papers. But the ruling was hardly the kind that strengthened the First Amendemnt. In a very short per curiam opinion, the majority said that in a case involving the prior restraint of a publication, the government bears a heavy burden to justify such a restraint. In this case the governemtn failed to show the court why such a restraint should be imposed on the two newspapers. In other words, the government failed to justify its request for the permanent restrainign order. The decision in the case rested on the preferred position First Amendment theory or doctrine. The ban on publication was "presumed" to be an unconstitutional infringement on the First Amendment. The government had to prove that the ban was needed to protect the nation in some manner. If such evidence could be adduced, the court would strike the balance in favor of the government and uphold the ban on the publication of the articles. But in this case the government simpluy failed to show why its request for an injunction was vital to the national interest. Consequently, the high court denied the governemnt's request for a ban on the publication of the Pentagon Papers on the grounds that such a prohibition was a violation of thr First Amendment. The court did not say that in all similar cases an injunction would violate the First Amendment. It merely said that the government had not shown why the injunction was needed, why it was not a violation of the freedom of the press. *What many people initially called the case of the century ended in a First Amendment fizzle.* The press won the day; the Pentagon Papers were published. But a majority of the court had not ruled that such prior restraint was unconstitutional-only that the government had failed to meet the heavy burden of showing such restraint was necessary in this case.

*strict scrutiny*

Because video games have stories and plots, they are considered speech products and receive First Amendment protection. Thus, in order to justify regulation of them based upon their content (here, violent content), the ___________________ standard of judicial review must be satisfied. In particular, a state or municipality must prove both that it has a compelling interest (an interest of the highest order) that justifies the games' regulation, and that the regulation restricts no more pseech than absolutely necessary to serve that allegedly compelling interest (the law is narrowly tailored). (This rarely happens) Second, laws targeting video games often are declared unconstitutional because they fail to clearly define "violence." As noted earlier, a statute will be declared unconstitutional under the void for vagueness doctrine if people of reasonable and ordinary intelligence cannot discern, from looking at its terms, what speech is allowed and what speech is prohibited. Some states have used vague terms like "inappropriate violence" and "ultra-violent video games" in their laws.

*Seditious libel* *licensing*; *prior restraint* *bonds*

Between 1476 and 1776 the British used several means to limit or restrict the press in England. _______________ laws were used to punish those who criticized the government or the Crown, and it did not matter whether the criticism was truthful or not. The press also suffered under _____________ or _________________ laws, which required printers to obtain prior approval from the government or the church before pprinting their handbills, pamphlets or newspapers. Printers were often required to deposit with the government large sums of money called ________. This money was forfeited if material appeared that the government felt should not have been published. And the printer was forced to post another bond before printing could be resumed. The British also granted special patents and monopolies to certain primters in exchange for their cooperation in printing only acceptable works and in helping the Crown ferret out other printers who broke the publication laws.

Son of Sam laws

But there are subtler forms of prior restraint as well. For example, many states have laws aimed at discouraging convicted criminals from profiting from their crimes by making money from books or films that detail their exploits. These are called ______________________ because the first state statute enacted was aimed at stopping a notorious New York serial murderer, David Berkowitz, nicknamed the Son of Sam, from earning money by selling an account of his rampage. Such laws are permissible, but broadly worded statutes have been ruled to be a prior restraint because they may stop the convicted felon from expressing his or her views on a variety of subjects. And some courts have considered laws that limit how or how much a political candidate can spend during an election campaign to be prior censorship of prior restraint, direct government restrictions on expression.

"chilling effect"

Citizens could hold any belief they chose and could sepouse that belief, but personal safety depended on the people in a community agreeing with a speaker or writer. If they didn't the speaker then kept quiet-an early example of self-censorship or what scholars today call a "_______________" on speech-or moved to another enclave where the people shared those ideas. (Roche says)

*Smith Act* Bradenburg vs. Ohio

Congress adopted the nations's second peacetime sedition law in 1940when it ratified the __________-, a measure making it a crime to advocate the violent overthrow of the government, to conspire to advocate the violent overthrow of the government, to organize a group that advocated the violent overthrow of the government, or to be a member of a group that advocated the violent overthrow of the government. The law was aimed directly at the Communist Party of the U.S. While a small group of Trotskyites (members of the Socialist Workers Party) were prosecuted and convicted under the Smith Act in 1943, no Communist was indicted under the law until 1948 when many of the nation's top Communist Party leaders were charged with advocating the violent overthrow of the government. All were convicted after a 9-month trial and their appeals were denied. In a 7-2 ruling in 1951, the Supreme Court of the U.S. rejected the defendants' arguments that the Smith Act violated the First Amendment. Government prosecutions persisted during the early 1950s. But then, in a surprising reversal of its earlier position, the Supreme Court in 1957 overturned the convictions of West Coast Communist Party leaders. Justice John Marshall Harlan wrote for the 5-2 majority that government evidence showed that the defendants had advocated the violent overthrow of the government but only as an abstract doctrine, and this was not sufficient to sustain a conviction. Instead there must be evidence that proved the defendants advocated actual "action" aimed at the forcible overthrow of the government. Number of prosecutions then diminished (also a factor could be the Cold War was not as intense; Americans looked at Soviets and Communists with a little less fear). With the practical demise of the Smith Act, sedition has not been a serious threat against dissent for more than 45 years. No sedition cases were filed against Vietnam War protesters, and the last time the Supreme Court heard an appeal in a sedition case was in 1969 when it overturned the conviction of a Ku Klux Klan leader (____________________________).

*counterspeech*

Doctrine of ___________________: Another fundamental First Amendment value is that the remedy for speech with which we disagree is not censorship, violence or murder, but rather to add more speech to the marketplace of ideas to counteract the disagreeable speech.

Socrates; plato

Free expression is not an exclusively American idea. It traces back to _______________ and __________.

Articles of Confederation Declaration of Independence freedom of expression; bill of rights 12

In 1781, even before the end of the Revolutionary War, the new nation adopted its first constitution, the ____________________________. The Articles provided for a loose-knit confederation of the 13 colonies, or states, in which the central or federal government had little power. The Articles refelcted the spirit of the _________________________________, adopted 5 years earlier, which ranked the rights of individuals in the society higher than the needs of a government to organize and operate a cohesive community. The Articles of Confederation did not contain a guarantee of __________________________. In fact, it had no _________________ of any kind.the individuals who drafted this constitution did not believe such guarantees were necessary. Guarantees of freedom of expression were already a part of the constitutions of most of the 13 states. But it didn't work very well: in the summer of 1787, ______ of the 13 states sent a total of 55 delegates to Philadelphia to revise or amend the Articles, to make fundamental changes in the structure of the governemtn.

*criminal syndicalism*

In addition the U.S. Post Offic Department censored thousands of newspapers, books and pamphlets. Finally, the states were not content with allowing the federal government to deal with dissenters, and most adopted sedition statutes, laws against ___________________________, laws that prohibited the display of a red flag or a black flag, and so forth.

'clear and present danger'

In rejecting Schenck's appeal, the high court ruled that these 15,000 seemingly innocuous pamphlets posed a real threat to the legitimate right of Congress to successfully conduct the war. To many American liberals this notion seemed farfetched, and Holmes was publicly criticized for the ruling. but the magic words '_______________________' stuck like glue on American sedition law. Holmes changed his mind about his test in less than 6 months and broke with the majority of the high court to outline a somewhat more liberal definition of freedom of expression in a ruling on the Sedition Act in the fall of 1919. But the majority of the court continued to use the Holmes test to reject First Amendment appeals.

community censorship *heckler's veto*

It is important to understand that the First Amendment does not protect against ___________________________. It protects only against censorship by government officials and government entities. Ex of nongovernmental community censorship: 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. this is an example of what attorneys sometimes call a _________________-when a crowd or audience's reaction to a speech or message is allowed to control and silence that speech or message. Courts have made it clear that the existence of a hostile audience, standing alone, has never been sufficient to sustain a denial of or punishment for the exercise of First Amendment rights. In other words, the government must come to the defense of the speaker, not the heckler. When such censorship occurs on public university campuses, of course, it doesraise First Amendment concerns and is no longer just community censorship.

Whitney vs. California

Justice Louis Brandeis attempted to fashion a more useful application of the clear and present danger test in 1927, but his definition of "clear and present danger" was confined to a concurring opinion in the case of _________________________. The state of California prosecuted Anita Whitley, a 64-year-old philanthropist. She was charged with violating the state's Criminal Syndicalism Act after she attended a meeting of the Communist Labor Party. She was not an active member in the party and during the convention had worked against proposals made by others that the party dedicate itself to gaining power through revolution and general strikes in whch workers would seize power by violent means. But the state contended that the Communist Labor Party was formed to teach criminal syndicalism, and as a member to the party she participated in the crime. After her conviction she appealed to the Supreme Court. Justice Edward Sanford wrote the court's opinion and ruled that California had not violated Whitney's First Amendment rights. The jurist said it was inappropriate to even apply the clear and present danger test. He noted that in Schenck and other cases, the statutes under which prosecution ocurred forbade specific actions, such as interference with the draft. The clear and present danger test was then used to judge whether the words used by the defendant presented a clear and present danger that the forbidden action might occur. In this case, the California law forbade specific words-the advocacy of violence to bring about political change. The Holmes test was therefore inapplicable. In addition, the law was neither unreasonable nor unwarranted. Brandeis concluded that if there is time to expose through discussion the falsehoods and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Put differently, Brandeis believed that counterspeech is the ideal, self-help remedy (i.e. adding more speech to the marketplace of ideas in order to counterargue), not censorship.

*dicta*

On emaxim in the law holds that when a single judge writes an opinon for a court, he or she should stick to the problem at hand and not wander off and talk about matters that do not really concern the specific issue before the court. Such remarks are considered ______________, or words that do not really apply to the case. Chief Justice Hughes' opinion in Near vs. Minnesota contains a good deal of dicta.

1. Absolutist Theory 2. Ad hoc balancing theory 3. Preferred position balancing theory 4. Meiklejohnian theory 5. Marketplace of ideas theory 6. Access theory 7. Self-realization theory

Seven First Amendment Theories:

"Commentaries on the Law of England"; no prior censorship

Sir William Blackstone, a British legal scholar, published a major summary of common law between 1765 and 1769. In "_____________________________," Blackstone defined freedom of expression as "laying no previous restraints upon publication." Today we call this ____________________________. However, it is likely that it also protected it after publication, or stuff like seditious libel.

World War I *Espionage Act* *Sedition Act*

Suppression of freedom of expression reached a higher level during ______________ than at any other time in our history. 2 federal laws were passed to deal with persons who opposed the war and U.S. participation in it. In 1917, the _________________ was approved by Congress and signed by President Woodrow Wilson. The measure dealt primarily with espionage problems, but some parts were aimed expressly at dissent and opposition to the war. The law provided that it was a crime to willfully convey a false report with the intent to interfere with the war effort. It was a crime to cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces. It also was a crime to willfully obstruct the recruiting or enlistment service of the U.S. Punishment was a fine of not more than $10,000 or a jial term of not more than 20 years. The law also provided that material violating the law could not be mailed. In 1918 the __________________, an amendment to the Espionage Act, was passed, making it a crime to attempt to obstruct the recruiting service. It was criminal to utter or print or write or publish disloyal or profane language that was intended to cause contempt of, or scorn for, the federal government, the Constitution, the flag or the uniform of the armed forces. Penalties for violation of the law were imprisonment for as long as 20 years or a fine of $10,000 or both. Approximately 2,000 people were prosecuted under these espionage and sedition laws, and nearly 900 were convicted.

1791; Bill of Rights

The First Amendemnt; adopted in _______ as part of the _________________, is only 45 words, but court decisions during the past two-plus centuies added substantial meaning to this basic outline.

Gitlow vs. New York "The Left Wing Manifesto" 14th incorporation doctrine

The First Amendment provides that "Congress" shall make no law abridging the freedoms of speech and press. Read literally, this language ("Congress") indicates the amendment prohibits actions only by the U.S. Congress; the First Amendment's terms say nothing about actions by state or local governments. Thus it would seem the First Amendment does not prevent or prohibit state or local government officials or entities from abridging or restricting people's speech and press rights. That indeed was the case until a 1925 U.S. Supreme Court opinion called _____________________ in which, for the first time, the nation's high court held that the term "Congress" in the First Amendmentwas not so narrowly limited in scope to the U.S. Congress or actions by the federal government. The case involved the proesecution, under a New York state criminal anarchy law, of a socialist named Benjamin Gitlow for printing a document called "_________________________." 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. But the U.S. Supreme COurt concluded differently, writing that "we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the _____ Amendment from impairment by the States." What the high court did in Gitlow, in brief, was to link the First Amendment with the 14th Amendment and, in particular, with the due process clause of the 14th Amendment, which provides that "NO STATE" shall "deprive any person of life, LIBERTY, or property, without due process of law." Notice that the 14th Amendment dictates what states cannot do; it restricts the power of states. The Gitlow court then, essentially, read into (incorporated into) the 14th Amendment's term "liberty" the freedoms of speech and press explicitly found in the First Amendment. The importance of the ruling in Gitlow 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 governemnt. Gitlow states that freedom of speech is protected by the 14th Amendment. This is known as the ________________________: The free speech and free press clauses of the First Amendment have been "incorporated" through the 14th Amendment due process clause as fundamental liberties to apply to state and local government entities and officials, not just to "Congress." Today, most rights in the Bill of Rights are protected via the 14th Amendment from interference by states and cities as well as the federal governemtn. The importance of the Gitlow case cannot be underestimated. It marked the beginning of attainment of a full measure of civil liberties for the citizens of the nations.

Near vs. Minnesota

The Supreme Court did not directly consider the constitutionality of prior restraint until more than a decade after it had decided its first major sedition case. In 1931, in ____________________, the high court struck an important blow for freedom of expression. City and county officals in Minneapolis, Minnesota, brought a legal action against Jay M. Near and howard Guilford, publishers of the Saturday Press, a small weekly newspaper. Near and Guilford were self-proclaimed reformers whose ostensible purpose was to clean up city and county government in Minneapolis. in their attakcs on corruption in city governemtn, they used language that was far from temperate and defamed some of the town's leading government officials. Near and Guilford charged that Jewish gangsters were in control of gambling, bootlegging and racketeering in the city and that city government and its law enforcement agencies did not perform their duties energetically. They repeated these charges over and over in a highly inflammatory manner. Minnesota had a statute that empowered a court to declare any obscene, lewd, lascivious, malicious, scandalous or defamatory publication a public nuisance. When such a publication was deemed a public nuissance, the court issued an injunction ahgainst future publication or distribution. Violation of the injunction resulted in punishment for contempt of court. In 1927 county attorney Floyd Olson initiated an action against the Saturday Press. A district court declared the newspaper a public nuissance and "perpetually enjoined" publication of the Ssturday Press." The only way either Near or Guilford would be able to publish the nespaper again was to convince the court that their newspaper would remain free of objectionable material. In 1928 the Minnesota Supreme Court upheld the constitutionality of the law, declaring that under its broad police power the state can regulate public nuissances, including defamatory and scandalous newspapers. The case then went on to the U.S. Supreme Court, which reversed the ruling by the state Supreme Court. The nuissance statute was declared unconstitutional. Chief Justice Charles Evans Hughes wrote the opinion for the court in the 5-4 ruling, saying that the statute in question was not designed to redress wrongs to individuals attacked by the newspaper. Instead, the statute was directed at supressing the Saturday Press once and for all. *The object of the law, Hughes wrote, was not punishment but censorship-not only of a single issue, but also of al future issues-which is not consistent with the traditional concept of freedom of the press.* That is, the statute considered prior restraint, and prior restraint is clearly a violation of the First Amendment.

*Alien and Sedition Acts of 1798* 1801

The U.S. wasn't even 10 years old when its resolve in protecting free expression was first tested. Intense rivalry between President John Adams' Federalist Party and Thomas Jefferson's Republican or Jeffersonian Party, coupled with the fear that the growing violence in the French Revolution might spread to this country, led to the adoption by the Federalist-dominated Congress of a series of highly repressive measures known as the ______________________________. The sedition law forbade false, scandalous and malicious publications against the U.S. government, Congress and the president. The new law also punished persons who sought to stir up sedition or urged resistance to federal laws. Punishment was a fine of as much as $2,000 and a jail term of up to 2 years. This latter statute was aimed at the Jeffersonian political newspapers, many of which were relentless in attacks on President Adams and his government. There were 15 prosecutions under this law. Among those prosecuted were Jeffersonian newspapers, including some of the leading papers in the nation. Also prosecuted was a Republican member of Congress. The so-called seditious libel that was the basis for the criminal charges was usually petty and hardly threatened our admittently youthful government. But Federalist judges heard most of the cases and convictions were common. Far from inhibiting dissent, the laws succeeded only in provoking dissension among many of President Adams' supporters. Many argue Adams lost his bid for re-election in 1800 largely because of public dissatisfaction with his attempt to muzzle his critics. The constitutionality of the laws was never tested before the full Supreme Court, but 3 members of the court heard Sedition Act cases while they were on the circuit.The constitutionality of the provisions was sustained by these justices. The Sedition Act expired in _________, and newly elected President Thomas Jefferson pardoned all people convicted under it, while Congress eventually repaid most of the fines. This was the nation's first peacetime sedition law, and it left such a bad taste that another peacetime sedition law was not passed until 1940. Most historians of freedom of expression in the U.S. focus on 2 eras in the 19th centuryy during which censorship was not uncommon: the abolitionist period and the Civil War. A wide range of government actions, especially in the South, were aimed at shutting down the abolitionist press in the years between 1830 and 1860. And both the U.S. government and the Confederate States government censored the press during the Civil War. The issue of political dissent did not enter the national debate again until the end of the 1800s, when hundreds of thousands of Americans began to understand that democracy and capitalism were not going to bring them the prosperity promised as an American birthright. Americans now thought of radical political change such as socialism or anarchism; revolutions arose; hundreds of laws were passed by states and cities to try to limit this kind of political dissent; War broke out in Europe in 1914; U.S. joined the conflict 3 years later; and now anything that remained of our national tolerance toward political dissent and criticism of the governent and economic system vanished.

First Amendment; speech; press

The ________________________ is the wellspring for nearly all U.S. laws on freedom of ___________ and ___________.

England; 16th; 17th; printing 18th

The concept developed more fully during the past 400 years. The modern history of freedom of the press began in ________________ during the __th and _____th centuries as ___________ developed. Today the most permanent embodiment of the concept is the First Amendment to the U.S. Constitution, forged in the last half of the _____th century.

amendment; "original intent"

The definition of the First Amendment of freedom of the press is what is guaranteed today as was the same when it was approved by the nation when the First Amendment was ratified in 1791. To enlarge or narrow that definition requires another vote of the people, a constitutional _______________________. This notion is referred to today as "________________" of the Constitution; that is, if we knew the meaning intended by the framers of the First Amendment, then we would know what it means today. (But as technology has changed, we have adapted the meaning)

William Blackstone

The great compiler of the British law, _________________, defined freedom of the press in the 1760s as freedom from "previous restraint," or prior restraint. Regardless of the difference of opinion on whether the First Amendment is intended to protect political criticism or to protect the press from unfair taxation, most agree the guarantees of free speech and press were intended to bar the governemtn from exercising prior restraint. Despite the weight of such authority, the media in the U.S. in the 2000s still face instances of prepublication censorship.

3rd

The new constitution was made by non-politicians; they were members of the economic, social and intellectual aristocracy of their states. the charter was far different from the Articles of Confederation in that it gave vast powers to a central government. the states remained supreme in some matters, but in other matters they relinquished their sovereignty to the new federal government. No official record of the convention was kept. Some personal records remain.the inclusion of a bill of rights was not discussed until the last days of the convention. The Constitution was drafted in such a way as not to infringe on state bills of rights. When the meeting was in its final week, George Mason of Virginia indicated his desire that "the plan be prefaced with a Bill of Rights...It would give great quiet to the people" he said, "and with the aid of the state declarations, a bill might be prepared in a few hours." Few joined Mason's call. Only one delegate, Roger Sherman of Connecticut, spoke against the suggestion. The states, voting as units, unanimously opposed Mason's plan. While the Virginian later attempted to add a bill of rights in a piecemeal fashion, the Constittuion emerged from the Convention and was placed before the people for ratification without a bill of rights. Thomas Jefferson, who was in France, lamented, in a letter to his friend James Madison, the lack of a guarantee of political rights in the charter. When the states finally voted ont he new Constitution, it was approved, but only after supporters in several states had promised to petition the First Congress to add a bill of rights. James Madison was elected from Virginia defeating James Monroe only after promising his constitutents to work in the First Congresstoward adoption of a declaration of human rights. He proposed adding a bill of rights into the body of the Constittuoin, but the idea was later dropped. There was much opposition, but after several months, 12 amendments were finally approved by both houses and sent to the statesfor ratification. *Historical myth tells us that because the amendment occurs first in the Bill of Rights it was considered the most important right.* In fact, in the Bill of Rights presented to the states for ratification, the amendment was listed _____. Amendments 1 and 2 were defeated and did not become part of the Constitution. Connecticut, Georgia and Massachusetts did not ratify the Bill of Rights until 1941, a kind of token gestureon the 150th anniversary of its constitutional adoption. In 1791 approval by these three states was not needed since only 3/4 of the former colonies needed to agree to the measures.

Dennis vs. U.S. Bradenburg vs. Ohio directed imminent lawless action likely; probability

The next major ruling in which the high court attempted to reconcile sedition law and the First Amendment came in 1951 in the case of _________________. Eleven Communist Party members had been convvicted of advocating the violent overthrow of the government, a violation of the Smith Act. Justice vinson, who wrote the opinion for the court, used a variation of the clear and present danger test encunciated by Holmes in the Schenck case. He called it a clear and probable danger test. The test went only slightly beyond the original Holmes test, and the court ruled that the defendants' First Amendment rights had not been violated. It has been 45 years since the Supreme Court heard the case of _________________________ and made its last and probably best attempt to resolve the apparent contradiction between sedition law and freedom of expression. A leader of the Ku Klux Klan was prosecuted and convicted of violating an Ohio sedition law for stating: "We're not a revengent [revengeful] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white Caucasion race, it's possible there might have to be some revengeance [revenge] taken." In reversing the conviction, the high court said the law must distinguish between the abstract advocacy of ideas and the incitement to unlawful conduct. *"The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except 'where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.'"* This test, which represents the current version of justice Holmes' old clear and present danger standard, can be broken down into 4 components. 1. The word "__________" represents an intent requirement on the part of the speaker: Did the speaker actually intend for his or her words to incite lawless action? 2. The word "_____________" indicates that the time between the speech in question and the lawless action must be very close or proximate. 3. The conduct itself must be "__________________," requiring thatthere be a criminal statute forbidding or punishing the underlying action that is allegdly adovcated. 4. The word "_________" represents a _______________requirement-that the lawless action must be substantially likely to occur and not merely a speculative result of the speech. All 4 of these elements must be proven before the speech can be considered outside the scope of the First Amendement protection.

precedent censorship

The verdict in the Zenger case was a great political triumph but did nothing to change the law of seditious libel. In other words, the case did not set an important legal ___________________. But the revolt of the American jurors did force colonial authorities to reconsider the use of sedition law as a means of controlling the press. Although a few sedition prosecutions were initiated after 1735, there is no record of a successful prosecution in the colonial courts after the Zenger case. The outcome of the trial played an important role in galvanizing (making stronger) public sentiment against this kind of government __________________.

speech; conduct; pure *symbolic speech doctrine* actor; audience

The word "_______" in the First Amendment sometimes (but not always) encompasses and includes ___________, not simply what we might think of as _______ speech, such as the written, printed or spoken word or image. Under the ______________________, courts treat conduct, such as burning a flag in political protest at a rally, as speech if two elements-one focusing on the ________, the other on the _______________-are satisfied: 1. Actor: The person engaging in the conduct must intend to convey a particular or specific message with his or her conduct. 2. Audience: There must be a great likelihood, under the surrounding circumstances in which the conduct takes place, that some people who witness it will reasonably understand the particular message that was intended by the actor. Under the two-part symbolic speech doctrine, burning an American flag in one's own backyard, when no one else is around and in an effort to stay warm during a snowstorm, does not constitute speech. On the other hand, the U.S. Supreme Court has recognized that burning the flag outside of a political convenion in the midst of a protest or rally may be speech. The court has held that nude dancing in a strip club is a form of symbolic speech; there's an intent to convey an erotic, sexual message, and there is a clear likelihood (judging by the tips, if nothing else) that the message will be understood as intended.

newspaper Benjamin Harris; Publick Occurences

There were leaws in the U.S. restricting freedom of press for almost 30 years beofre the first ___________________ was published. As early as 1662, statutues in Massachusetts made it a crime to publish anything without first getting prior approval from the government, 28 years before _________________ published the first-and last- edition of ______________________. (The second and all subsequent issues were banned because Harris had failed to get permission to publish the first edition, which contained material construed to be criticism of British policy in the colonies, as well as a report that scandalized the Massachusetts clergy because it said the French king took immoral liberties with a married woman (not his wife).)

historicism

Thus the judicial philosophy of ________________, despite what profesor Rodney Smolla correctly calls "the obstitnate illusiveness of original intent in the free speech area," reamins an important consideration for some judges and justices.

censorship

To understand the meaning of freedom of the press and speech, it is necessary to understand the meaning of ____________, for viewed from a negative position freedom of expression can be simply defined as the absence of censorship or a freedom from government control.

*Absolutist Theory*; *absolutist theory* fighting words

______________________: Some argue that the First Amendment presents an absolute or complete barrier to government censorship. When the First Amendment declares that "no law" shall abridge freedom of expression, the framers of the Constitution meant no law. This is the essence of the _____________________. The government cannot censor the press for any reason. There are no exceptions, no caveats, no qualifications. *A majority of the Supreme Court never has adopted an absolutist position.* In fact, the Supreme Court has held that several types of speech fall outside the scope of First Amendment protection and thus can be abridged without violating the freedoms of speech or press. As justice Anthony Kennedy wrote in 2002, "[t]he freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children." Other categories of speech also fall outside of the ambit of First Amendment protection, including ______________________ and true threats of violence.

*Preferred Position Balancing Theory.* fourth

______________________: The Supreme Court has held in numerous rulings thats some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental to a free society and consequently are entitled to more judicial protection than other constitutional values are. Freedom of expression is essential to permit the operation of the political process and to permit citizens to protest when government infringes on their constituionally protected prerogatives. The _________ Amendment guarantee of freedom from illegal search and seizure surely has diminshed value if citizens who suffer from such unconstitutional searches cannot protest such actions. Freedom of expression does not trump all other rights. Courts, for example, have attempted to balance the rights of free speech and press with the constitutionally guaranteed right of a fair trial. On the other hand, courts have consistently ruled that freedom of expression takes precedence over the right to personal privacy and the right to reputation, neither of which is explicitly guaranteed by the Bill of Rights. Giving freedom of expression a preferred position "presumes" that government action that limits free speech and free press to protect other interests is usually unconstitutional. This presumption forces the government to bear the burden of proof in any legal action challenging the censorship. The city, county, state or federal government must prove to the court that its censorship is, in fact, justified and is not a violation of the First Amendment. Were it not for this presumption, the persons whose expression was limited would be forced to convince a court that they had a constitutional right to speak or publish. This difference sounds minor, but in a lawsuit this presumption means a great deal. While this theory retains some of the negative features of ad hoc balancing, by tilting the scales in favor of freedom of expression, it adds somewhat more certainty to our definition of freedom of expression. By basing this balancing theory on a philosophical foundation (the maintenance of all rights is dependent on free exercise of speech and press), it becomes easier to build a case in favor of the broad interpretation of freedom of exxpression under the First Amendment.

*marketplace of Ideas Theory.*

_______________________: This theory embodies what First Amendment scholar Daniel Farber calls "the truth-seeking rationale for free expression." Although the theory can be traced back to the work of John Milton and John Stuart Mill, it was U.S. Supreme Court Justice Oliver Wendell Holmes Jr. who introduced the marketplace rationale for protecting speech to First Amendment case law more than 90 years ago. Today, the economics-based marketplace metaphor "consistently dominates the Supreme Court's decision of freedom of speech." The marketplace theory is often criticized by scholars. Common condemnations are that much shoddy speech, such as hate speech, circulates in the marketplace of ideas despite its lack of value and that access to the marketplace is not equal for everyone. In particular, those having the most economic resources (today, large conglomerates such as Viacom, News Corp. and Clear Channel) are able to own and to control the mass media and, in turn, to dominate the marketplace of ideas. Nonetheless, professor Martin Redish observes that "over the years, it has not been uncommon for scholars or jurists to analogize the right of free expression to a marketplace in which contrasting ideas compete for acceptance among a consuming public." *The premise of this idealistically free and fair competition of ideas is that truth will be discovered or, at the very least, conceptions of the truth will be tested and challenged.*

*Access Theory.*

________________________: A constitutional guarantee of freedom of expression has little meaning if a citizen did not have the economic means to exercise this right (as proposed by A.J. Liebling). Owners of magazines, newspapers and broadcasting stations could take advantage of the promises of the First Amendment, whereas the average person lacked this ability. Put differently, access to the metaphorical marketplace of ideas is not equal for all, but is skewed in favor of those with the most economic resources. The evolution of the Internet has at least given millions more Americans the opportunity to share their ideas as "bloggers" with a wider audience than was accessible in the past. Still, the audience for the vast majority of Web sites is small in comparison with the number of people reached by a television network, national magazine or even a metropolitan newspaper. In the mid-1960s some legal scholars, most notably professor Jerome Barron, former dean of the National Law Center at George Washington University, argued that the promise of the First Amendment was unfulfilled for most Americans because they lacked the means to exercise their right to freedom of the press. 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. If the press will not do this voluntarily, the obligation falls upon the government to force such access to the press. *The access theory thus can be seen as a remedy to correct some of the flaws of the marketplace of ideas theory described earlier.*

*Ad Hoc Balancing Theory.* strategy "chilling effect" rarely

_________________________: Freedom of speech and press are two of a number of important human rights we value in this nation. These rights often conflict. When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values. This theory is called "ad hoc" balancing because the scales are erected anew in every case; the meaning of the freedom of expression is determined solely on a case-by-case basis. Ad hoc balancing is really not a theory; it is a ___________. Developing a definition of freedom of expression on a case-by-case basis leads to uncertainty. Under ad hoc balancing we will never know what the First Amendment means except as it relates to a specific, narrow problem. 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. This is known as a "______________________" on speech. This will limit the rights of expression of all persons. Also, ad hoc balancing relies too heavily in its final determination on the personal biases of the judge or justices who decide a case. Ad hoc balancing is _________ invoked as a strategy these days except by judges unfamiliar with First Amendment law.

*Meiklejohnian Theory.* hierarchical

____________________________: Philosopher and educator Alexander Meiklejohn presented a rather complex set of ideas about freedom of expression in the late 1940s. Meiklejohn argued that freedom of expression is a means to an end. That end is successful self-government or, as Meiklejohn put it, "the voting of wise decisions." Freedom of speech and press are protected in the Constitution so that our system of democracy can function, and that is the only reason they are protected. *Expression that relates to the self-governing process must be protected absoultely by the First Amendment.* There can be no government interference with such expression. Expression that does not relate to the self-governing process is not protected absolutly by the First Amendment. The value or worth of such speech must be balanced by the courts against other rights and values. Meiklejohnian theory thus represents a ___________________ approach to First Amendment theory, with political speech placed at the top of this hierarchy. Critics of this theory argue that it is not always clear whether expression pertains to self-government (public speech) or to other interests (private speech). Although not providing the specific definition sought by critics, Meiklejohn argued that a broad range of speech is essential to successful self-governemtn. He included speech-related education (history, political science, geography, etc.) science, literature and many other topics. This theory has been embraced by some members of the Supreme Court of the U.S., most notably former justice William Brennan. American libel was radically changed when Brennan led the Supreme Court to give First Amendment protection to people who have defamed government officals or others who attempt to lead public policy, a purely Meiklejohnian approach to the problem.

*Self-Realization/Self-Fulfillment Theory.*

________________________________: While the primarty goal of Meiklejohnian theory is succesful self-government and the main objective of the marketplace theory is discovery of the truth, it may be that *speech is important to an individual regardless of its impact on politics or its benefits to society at large.* Speech can be inherently valuable to a person regardless of its effect on other-it can be an end in itself. An individual who wears a shirt with the name of his or her favorite political candidate on it may not change anyone else's vote or influence discovery of the truth, yet the shirt-wearer is realizing and expressing his or her own identity through speech.