The First Amendment

Marketplace-of-Ideas Theory

"the truth-seeking rationale for free expression" Holmes famously wrote "that the best test of truth is the power of the thought to get itself accepted in the competition of the market" Today, this economics-based metaphor consistently dominates the Supreme Court's discussion of freedom of speech The theory is often criticized, however, because of shoddy speech (such as hate speech) which circulates in the marketplace of ideas despite its lack of value, and also b/c access to the marketplace is not equal for everyone. Those who have the most economic resources and who are able to own/control the mass media tend to dominate the marketplace of ideas

What are the First Amendment Theories? (7)

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

Smith Act of 1940

A federal law adopted in 1940 that makes it illegal to advocate the violent overthrow of the government, to conspire to advocate the violent overthrow of the government, or to be a member of a group that advocated the violent overthrow of the government This law was aimed directly at the Communist Party of the US

Dicta

A judge's incidental expression of opinion, not essential to the decision and not establishing precedent

Espionage Act of 1917

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

"Fighting Words" Doctrine

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

Sedition Act of 1918

An amendment to the Espionage Act adopted in the midst of World War I that severely limited criticism of the government and criticism of US participation in the European War This amendment made 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 gov, the Constitution, the flag, or the uniform of the armed forces Additionally, the US Post Office Department censored thousands of newspapers, books, and pamphlets. Entire issues of magazines were held up and never delivered, on the grounds that they violated the law

Incorporation Doctrine

As a result of the Gitlow v. New York (1925) decision, the Supreme Court concluded that states and local governments, as well as the federal government, must adhere to the Bill of Rights, including the First Amendment.

Sedition

Conduct or speech inciting people to rebel against the authority of a state or monarch

Designated Public Forum

Created by the gov. to encourage expression, this type of forum includes publicly owned concert halls and auditoriums, community meeting halls, and fairgrounds. The gov. may set the conditions for the use of these forums - via fees, schedules, occupancy limits, and the like - so long as those rules are applied fairly

Meiklejohnian Theory

Expression that relates to the self-governing process must be protected absolutely by the First Amendment This is a hierarchical approach to the First Amendment theory, with political speech placed at the top of the hierarchy

Private Forums

Forums that take place on private property

Preferred-Position Balancing Theory

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 gov. to bear the burden of proof, and must prove to the court that its censorship is, in fact, justified and is not a violation of the First Amendment

Access Theory

Idea that "freedom of the press belongs to the man who owns one" A constitutional guarantee of freedom of expression had little meaning if a citizen did not have the economic means to exercise this right. Owners of magazines, newspapers, and broadcasting stations could take advantage of the promises of the First Amendment, whereas the average person lacked this ability In other words, access to the metaphorical marketplace of ideas is NOT equal for all, but is skewed in favor of those with the most economic resources (although the evolution of the Internet has given many more Americans the opportunity to share their ideas)

Alien & Sedition Acts of 1798

Laws adopted by the Federalist Congress aimed at stopping criticism of the national government The sedition laws forbade false, scandalous, and malicious publications against the US government, congress, and the president The new law also punished people who sought to stir up sedition or urged resistance to federal laws

"Son of Sam" Laws

Named after a New York serial murderer, these laws permit a state to seize all or part of the profits a criminal might earn from selling the story of his/her crime. • But in 1991 the US Supreme Court ruled this NY statute was unconstitutional bc it was a content-based regulation that went beyond the state's objective of ensuring that criminals do not profit from their crimes. The SC determined it was too broad as written; other "son of sam" laws, however, may be constitutional if they are narrowly tailored

Traditional Public Forums

Places where people historically have met to speak and debate. These include city parks and street corners. The highest level of First Amendment protection is given to expression in these places

Prior Restraint

Prepublication censorship that forbids publication or broadcast of certain objectionable material. Can arise in situations involving national security, public safety, and school discipline and pedagogy Prior restraints shut off communication before it takes place. It doesn't allow opinions to be heard, refuting the free marketplace-of-ideas concept Supreme Court ruled in 1931 that prior restraint should be "recognized only in exceptional circumstances"

Self-Realization/Self-Fulfillment Theory

States that speech is important to an individual regardless of its impact on politics or its benefit to society at large Speech can be inherently valuable to a person regardless of its effect on others (ex. a person who wears a shirt with the name of their 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 their own identity through speech)

Absolutist Theory

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

"Time, Place, and Manner" Restrictions

These rules allow the gov. to restrict speech as long as the restriction is not based on the content of the speech. Instead, the rules must be limited to the time, place, and manner in which speech is communicated, or the publishing and distribution of printed material

Seditious Libel Laws

These were passed by the English monarchy soon after the first printing in the English language in 1476, to punish those who criticized the government, regardless of whether the criticism was truthful and justified

Forum Analysis

To determine whether time, place, and manner restrictions are appropriate in a particular case, courts will first examine the kind of forum in which the speech occurred. All locations - public and private property - can be classified under what is called a forum analysis

Ad Hoc Balancing Theory

When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values (ex. if the press seeks to publish info about a secret weapons system, the right to freedom of expression must be balanced with the need for secrecy in our military) The meaning of the freedom of expression is determined solely on a case-by-case basis. This is really not a theory so much as a strategy Ad hoc balancing theory is rarely used as a strategy these days

Hate Speech

Words that attack individuals or groups because of their race, ethnic background, religion, gender, or sexual orientation