First Amendment
What are examples of fighting words today
"Let's take this outside" / "Put em up!" / Calling someone the N word
What is the language of the First Amendment
"no law" language --"no law can be made by Congress abridging speech or of the press"
What must the government show when being tested by the compelling government interest test
1. An overriding necessity for it 2. That the law actually advances the gvrnmt interest 3. That it is narrowly tailored to accomplish just the limited purpose of the gvrnmt 4. That it is the least restrictive means available to the gvrnmt for accomplishing its ends
What were John Stuart Mill's 4 arguments for free speech
1. If any opinion is silence, that opinion may be true. To deny this is to assume our own infallibility. 2. Though the silenced opinion may be an error, it may or commonly does contain a portion of truth. 3. Even if, this idea is the whole truth (the perfect idea), unless there is some argument about it, it will by most who receive it be held by a prejudice. 4. Our belief in that truth could be weakened, if only one side is presented.
What are the 2 aspects of the idea of free expression
1. Legal: What can the government do to you if it doesn't like what you say 2. Philosophical: What SHOULD the government do to you if it doesn't like what you say --Philosophical underpinnings in the US is freedom of speech
What are the 4 times were prior restraint is okay?
1. Obstructing war efforts --EX: publishing where American soldiers will be tomorrow 2. Obscene material --EX: child porn 3. Inciting violence or overthrowing the government --EX: having a meeting set to organize the group to plan government overthrow 4. Fraud and threats can be censored --Not directly mentioned in Near vs. Minnesota --If you can prove it is a threat by definition, not protected by the 1st Amendment
How did the Constitution attempt to fix what was done in the 1500s and early 1600s
1. Right to not testify 2. Right to a jury 3. First Amendment was used to make sure people did not get punished for speaking badly about the British monarch
What did Milton mean when he said: 1. "So truth be in the feed" 2. "Misdoubt her strength" 3. "Let her and falsehood grapple"
1. everything's out there, including the truth --Doesn't mean everything is true, but it's all there 2. Having licensing and prohibitions against speech lessens truth 3. Let the truth and not truth fight --Truth will win in an free and open encounter
What are the 4 values of free speech
1. helps clarify and strengthen our beliefs 2. allows ideas to be tested in the marketplace 3. provides enlightenment 4. supports self-government
What are the 2 criticisms of the concept "Free marketplace of ideas"
1. marketplace is rigged in favor of major corporations and others who can best afford to flood the marketplace with their ideas on a large scale 2. Religious dogma or philosophic principles determine which ideas are true or not
What are 6 examples of speech that is the LEAST protected
1. obscenity 2. child pornography 3. true threats like extortion or incitement to violence 4. fraud 5. perjury 6. leaking national secrets
When did the first major court decisions involving challenges to laws regulating speech begin
1900s --From 1790 to late 1800s = no significant litigation occurred to define the constitutional limits of the federal government's power to regulate speech
what happened in Abrams v. U.S.
1917: Abrams and several other communists published flyers opposing the U.S. war effort by encouraging PRODUCTION factories workers to strike (not make guns for the war) --they were worried the bullets made to fight Germans might instead by used to kill Russian communists engaged in the Russian Civil War going on in that period
Schenck v. United States
1919: Schenck and his small group of socialists published disapproval of war efforts and mailed it out in a flier that urged young men selected for the draft to REFUSE to report for induction
What happened in Gitlow v. New York
1925 Socialist Party Leader Gitlow printed the Socialist Manifesto (materials urging labor unrest) in NY --Gitlow said lower workers should overthrow the higher power and start society over Convicted of criminal anarchy bc advocated for the overthrow of the government and upheld in highest NY court --In this time, communist and socialist parties were linked as bad Petitioned Supreme Court --Supreme Court agreed with the New York court and upheld conviction
What happened in Chaplinsky vs. New Hampshire
1942 Chaplinsky was a member of the Jehovah's Witnesses and didn't like the mayor or chief of police. --preached on a street corner criticizing government --anger crowd gathered Police tried to remove him because he was distributing the peace, and Chaplinsky referred to the officer as a "damn racketeer." (very offensive at the time) --was arrested but he should have the right to say that Outcome: lost in SC --SC said you don't have a right to say "fighting words"
What happened in Dennis v. United States
1951: The general secretary of the Communist Party was jailed for being a communist --Because communism advocates for the overthrow of the government Outcome: Supreme Court upholds conviction solely on membership of a political party --By being a communist, Dennis was advocating treasonous activity --Historic low point for the First Amendment protection
How did Yates v. United States reverse Dennis v. United States
1957 Court decided can't assume someone is advocating treasonous activity based on ONLY political party membership --teaching an abstract idea was not the same as inciting people to take immediate action... not okay to storm the Capital, but protected if teaching beliefs about socialism or communism Need to show actual advocacy action (illegal activity) before the government could punish speech
What happened in Brandenburg v. Ohio
1969 KKK leader (Brandenburg) led a rally that called for violence against Jews and blacks, saying white people need to take back the country --Ohio convicted him of inciting violence Outcome: Supreme Court overturned conviction using Yates logic (having abstract ideas and saying them is protected) --ruled it was unconstitutional for an Ohio statute to rule almost identically like Gitlow's case --state couldn't prove "imminent, lawless action" was likely to occur bc he wasn't talking about taking back the country right now... he was talking about an abstract idea
What happened NY Times v. United States
1971 Nixon administrated tried to stop the NY Times and Washington Post from publishing the Pentagon Papers Outcome: SCOTUS overturned lower court's injection and allowed the Papers to be posted --reaffirmed its position that prior restraint is the MOST SERIOUS VIOLATION of the First Amendment --determined none of the government's concerns were reasons to justify prior restraint
Every year the Freedom Forum Institute conducts a "State of the First Amendment" survey. What is the trend in how many could be named.
29% couldn't name any. 32% could name 1. 22% could name 2.... 1% could name all 5. --most recalled: Freedom of the Press... Next one: Freedom of Religion... then Speech
What is the Ad-hov-balancing approach
BALANCED APPROACH to speech cases Court balances the interests of both parties and arriving at a decision based on which has greater weight on its side --Each side gets the same weight and the scale tips one way or the other in the bar interrogation Resolution of cases comes from balancing competing private and public interests at stake in that particular circumstance
Why was making political speech protected so important to those who wrote the Constitution
Because the drafters of the Constitution envisioned a country where people would govern themselves through a process of achieving consensus through deliberation and debate
What is the rational basis test
Begins with the assumption that what the gvrnmt has done is constitutional Burden is placed on those challenging the gvrnmt to demonstrate a lack of rational basis for the law --burden is hard to meet
What is expressive conduct
Behavior that is meant to express your views EX: flag burning to show not support for government --Gets a little protection, not as much if they had written a sign
What test came out of Brandenburg v. Ohio
Brandenburg test
History of law in the 1500s and early 1600s
British monarchs used the Star Chamber to oppress dissenters and outlaw certain expressions --Set up a court and do whatever they want --Today, they mean an unfair court proceeding Star Chamber was abolished by Parliament in 1641 --1643: Parliament issued An Ordinance for the Regulating of Printing which introduced censorship ----EX: Before you print a book, you have to get a license from Parliament
What did both Abrams and Schenck argue in court
Congress could not constitutionally pass a law that punished political speech --both lost and convictions were upheld (convicted for violating the Espionage Act)
How was the 14th Amendment adapted based on the Supreme Court's decision in Gitlow v. New York
Court also found that the Due Process Clause of the 14th Amendment gave jurisdiction to federal courts to review state court decisions that arguably infringe upon free speech --extended the First Amendment speech protections where state and federal gvrnmts could review decisions about free speech
What is a trend in court's attitude toward attempts to regulate speech that is not under political protection
Courts are less motivated to strike down attempts to regulate speech that is not "political speech" --consistently holds commercial speech does not receive the same level of protection as speech about public issues
Beginning history of the Constitution
Drafted in 1787 --ratified by the 13 states and went into effect in 1789 --Bill of Rights (first 10 Amendments) was ratified in 1791 and added to the Constitution
Why was the 1920s-1940s significant for free speech court decisions
Era of industrial warfare: growth of labor unions --Goal: improve working conditions, hours & benefits --Began industrial warfare with industry capitals fearing these unions would strike
What did Professor Alexander Meiklejohn argue the purpose of free speech was
Free speech is essential to self-government because voters need it to make intelligent choices about their self-governing democracy --HUGE for defining the primary purpose of the 1st Amendment to be protecting political speech from government regulation Speech can be regulated, if it does not contribute to democracy
Trend of freedom of expression during war time
Freedom of expression tends to shrink when people feel unsafe (during war)
What did John Stuart Mill do 200 years later that has affects on Free Speech
Gave 4 arguments for free speech in On Liberty (in 1869) --first to argue the best path to truth is through uncensored exchange of ideas
What was the first criminal anarchy statute where 1st Amendment was concerned
Gitlow v. New York
What is a preferred position
IMBALANCED APPROACH to speech cases Court should first give extra weight to speech's side of the scale --the government must pull enough weight on its side to overcome the handicap created in favor of speech interests... Requires the government to meet an extra heavy burden
What did Milton mean when he said: "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties."
If you believe in truth, it should be able to eventually WIN --wants both sides to make his own decisions
What did John Stuart Mill mean when he said and what does censorship mean here: If any opinion is compelled to silence, that opinion may be true. To deny this is to assume our own infallibility.
If you only allow the opinions you like, then you may not get the full truth Censorship: means you think you are infallible
What did John Stuart Mill mean when he said and what does censorship mean here: Even if, this idea is the whole truth (the perfect idea), unless there is some argument about it, it will by most who receive it be held by a prejudice
If you only let one side of ideas come through, people will accept it without understanding it --Gets to prejudices about race, group membership Censorship: leads to people believing things without really understanding them
What did John Stuart Mill mean when he said and what does censorship mean here: Our belief in that truth could be weakened, if only one side is presented.
If you want to understand and hold strongly to something the matter, the best way to do that is argue them against other ideas Censorship: leads to people not being fully committed to what they believe
The clear and present danger test become a basis for what
Judging the constitutionality of the federal government's attempts to regulate normally protected speech --First Amendment was designed to prohibit "previous restraints"
Importance of Yates v. United States
Just having an opinion that we don't like isn't enough to get your speech banned
Due Process requires that laws may not be what 4 rules for speech restrictions --Government restrictions must always be what?
Law may NOT be: 1. vague 2. overbroad 3. applied arbitrarily Restrictions must always be viewpoint neutral
Why were there no cases of free speech that resulted from WW2 in the 1940s
Little widespread public speech favored fascism or advocated organized resistance to fighting Nazi Germany and Japan --Hiatus stopped at end of war with Cold War heating up
If the government wants to regulate everyday activities and is challenged as unconstitutional, what must it demonstrate to win the case --what is this called?
MUST demonstrate a well-drafted law designed to accomplish a reasonable gvrnmt purpose Called a rational basis test
What did the Smith Act do in 1940
Made it a crime to advocate the overthrow of the U.S. government
What did the Alien and Sedition Acts do
Made it a crime to write, print, publish any false, scandalous and malicious writing against the government of the US --said you can go to jail for saying something bad about the government... actually did send people to jail EX: having a sign in your yard saying "no more stamp acts" could send you to jail
What happened in Near v. Minnesota
Newspaper was denied the right to continue to publish any newspaper in Minneapolis/St. Paul areas by authorities because him doing that would constitute a public nuisance --published a lot of weird stuff like saying the mayor was in the mob Outcome: SCOTUS struck down the state regulation as unconstitutional censorship --case of prior restraint of speech
How does the "no law" language in the Constitution apply to prior restraint
No law language applies ONLY to government censorship
What did John Stuart Mill mean when he said and what does censorship mean here: Though the silenced opinion may be an error, it may or commonly does contain a portion of truth.
No one's idea is perfect --Hearing another idea might have something to add --Doesn't mean you'll agree, but can strengthen ideals Censorship: prevents you from hearing even small bits of truth in ideas that are mostly wrong
What does the 14th Amendment say
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US 1. All the rights people have under the Constitution... States can't take those away either ----City and county governments and schools... can't take away basic rights --Can challenge any government agencies for violating the First Amendment 2. Requires all types of government to follow the First Amendment
Based on cases, what is the trend for when prior restraint is allowed
Prior restraint is almost never allowed
What did the criminal syndicalism or criminal anarchy statutes do
Punished those who spoke out in labor union groups in favor of overturning industrials laws in place --showed disagreement through sabotage or violence Means: you get punished if you protest violently against company
What is prior restraint and what does that mean for the government
Punishing speech before it is spoken based on an assumption it will be said Government action can't prevent speech from entering the marketplace of ideas
What is the compelling government interest test --where is the burden placed
Requires court to look with strict scrutiny at gvrnmt attempts to regulate a fundamental liberty --defense of individual liberty Places burden on gvrnmt who is wishing to regulate
Overall, what has SCOTUS done for speech protections
SCOTUS has gradually increased speech protections
What was the first two cases that came from the Espionage Act of 1917
Schenck v. United States Abrams v. United States
What is the Espionage Act of 1917
Statute made it a federal crime to aid and fort the enemy AND illegal to advocate for overthrowing the government or their acts in war --came from the divided public support for an American war effort
What are historical issues associated with the First Amendment
The actual discussions were conducted behind closed doors --didn't leave a clear record of what they actually meant by the words in the no law language
What is the general conclusion about the First Amendment from this research of the historical time period and writings written by the framers of the 1st Amendment
The framers did not intend to protect all speech equally --Now there are different levels of constitutional speech that receive different protections
When is a Ad-hov-balancing approach used
Used if both the government and speech interests are substantial
When does using the rational basis test shift --What is this alternative approach called
When challenges is based on protecting speech called the compelling government interest test
When is a preferred position given
When government wants to regulate fully protected speech (political or social speech)
What is the Brandenburg test --what 2 things does it require
a modern day definition of "clear and present danger" Requires a state wishing to punish political speech to prove: 1. the speech was intended to produce lawless actions that would happen now by followers in the speaker's cause AND 2. that the illegal acts were likely to occur
What do Thomas Jefferson do when he was elected in relation to the Alien and Sedition Acts
acts were appealed or expired --pardoned those in jail
Why is Gitlow v. New York important
bc it is the first case where a state law was charged for violating the First Amendment --BEFORE: First amendment was thought it only apply to Congress, not states
Why was the Bill of Rights needed
because they didn't specifically protect those rights, the government will infringe on them like they did in Great Britain
By 1969, what did SCOTUS do
evolved its thinking about the extent of protection for public-interest speech
What happened in the beginning of the 20th century that sparked 1st Amendment court decisions
fewer land for outcasted groups to build own communities to America --Also immigrants began coming and brought their customs, traditions and ideologies WW1 brought scrutiny about which side America should take in the war
Five rights guaranteed by the First Amendment
freedom of religion, speech, press, petition, and assembly
What did Justice Brandeis say in connection with Nimmer's argument that free speech serves an enlightenment function
freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth
What did the late 1950s - 1960s bring for speech protection
greater protection of civil rights and fundamental personal liberties
What is the essence of the enlightenment function
it is only through testing the speech by hearing more speech from others that a reliable judgement
When tested by the compelling government interest test, what must the government meet
must meet the equivalent of a compelling government interest when trying to punish protected speech --Even if gvrnmt does show this, they don't automatically win --It is still debated by a court to balance the gvrnmt's interest and the other side's speech interests
What was state lawmakers response to the era of industrial warfare
passing the criminal syndicalism or criminal anarchy statutes
What is a Free marketplace of ideas
people should be able to openly discuss and debate virtually any and all ideas and opinions in an open forum without fear of gvrnmt suppression or punishment --the best test of truth is the power of the thought to be tested in the market... ideas that last are probably true Solution to Abrams "bad speech" is not restricting it... it is encouraging more "good" speech by those countervailing messages
What is the MOST protected speech
political speech, religious expression --purely news reporting falls here too when there is NO commercial advantage to saying the story
What is the most serious violation of the First Amendment
prior restraint
Why did cases of free speech start up again in the late 1940s-1950s
public feared Russia's communist ideas would come into all parts of American life --left federal prosecution and legislation to pursue espionage-related speech cases
What did John Milton do in response to the Ordinance for the Regulating of Printing
published his Areopagitica in 1644 --argued society should be like the Areopagitica where people argue both sides of the debate and came to a conclusion
What did Justice Oliver Wendell Holmes, Jr. say the true meaning of the 1st Amendment was
requires citizens to protect speech from interference by gvrnmt, even if it is speech judges loath and believe fraught with death UNLESS: the speech poses a serious and immediate threat --Here, Government must act to save the country
What does Incitement mean
seeking to get others to do unlawful things the speaker wants them to do
Why was Justice Oliver Wendell Holmes, Jr. dissent importance
showed judges they can't just call it unconstitutional if they doesn't like it... it must effect the United States or present a real threat --Highly doubtful that Abrams would've impeded war efforts that much Here, Holmes adopts the term "free marketplace of ideas"
Why was there a scarcity of 1st Amendment court decisions during the 1800s
society was filled with rugged individualism with a fear of centralized big gvrnmt that helped shape out national character --Talk about public issues happened A LOT --Rare to have a law passed that tried to limit debate about political issues because differences were NOT fueled by ideologies identified with foreign governments Those who disagreed with political views of neighbors or were subjected to attempts to regulate their speech (Mormons), just picked up there things and left to settle somewhere else
What is the least protected speech
speech related to criminal activity --EX: obscenity, child pornography, true threats like extortion, fraud, perjury or leaking national secrets
What is the middle ground of speech that receives some protection but not all
speech that is commercial, over-the-air broadcast or expressive conduct
What did President John Adams signed into law in 1798 and why
the Alien and Sedition Acts WHY: because he wanted to protect the young government they had established --Thought to be compatible with the no law language BECAUSE they did not act as previous or prior restraints of speech... punished speakers AFTER they spoke
What set the first series of court cases that involved the question of how much protection does the First Amendment provide in motion
the Espionage Act of 1917
What did Justice Oliver Wendell Holmes, Jr. adopt when ruling on Schenck
the alternative position that the speech in question was UNDOUBTEDLY protected from gvrnmt interferences in "normal" and "ordinary" circumstances BUT, this was war time... so no court could regard them as protected by the constitution --Schenck sent young men about to be drafted anti-war pamphlets, so there was sufficient evidence that they intended their act to hinder the war effort Words were used to create a clear and present danger... so Congress has the right to prevent
What did the Abrams and Schenck cases begin
the development of speech tests to be applied in such cases
What did Justice Oliver Wendell Holmes, Jr. argue in Abrams case
the government could not convict Abrams of espionage BECAUSE his purpose was to support his comrades in Russia, not hinder the war effort against Germany --Lacked specific intent to aid the enemy required by the wording of the Espionage Act Not the majority opinion though
What is the criticism of the enlightenment function
the system for arriving at the outcome should be equally unrestricted --Nimmer believed being absolutely certain about any issue is not possible for humans If information that could lead to contradictory trust is limited/prohibited, the system becomes stagnant
How is broadcast speech regulated
through licence for the FCC --Need to use your license for good
According to Professor Alexander Meiklejohn, what is the main purpose of the 1st Amendment
to give every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal
What did Melville Nimmer argue the purpose of free speech was
to serve as an "enlightenment function"
What is the solution judges use when confronting the historical issues associated with the First Amendment
turn to the historical context of writing it Relying on: 1. general knowledge about the events during the 1700s (Revolutionary War) AND 2. their interpretations of historical evidence (found in personal diaries, letters, essays and state constitutional provisions written by the people who wrote the 1st Amendment)
What was Mill's main idea he urged
urged the idea that even speech that is false is important and needs protection because it forces us to reexamine old ideas rather than just assume them to be true
What is inciting violence
when imminent lawless action is likely to occur --Imminent means right away --Lawless means illegal --Incitement means you're encouraging someone else to do bad things you want them to do
What are fighting words
words that seek to provoke a negative, violent reaction from the listener against the speaker
