Ch. 2 The First Amendment. The Meaning of Freedom

Seven First Amendment Theories

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

seditious libel

1476-1776. 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.

Gitlow v. New York

1925. socialist printed document "the left wing manifesto". Importance: 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 government. Called the incorporation doctrine: the free speech and free press clauses of the 1 A have been "incorporated" through the 14th A due process clause as fundamental liberties to apply to state and local government entities and officials, not just to "congress". 1 a applies to all states

Near v. Minnesota

1931. Saturday Press newspaper a public nuisance. paper talked about Jewish gangsters were in control of gambling, bootlegging, and racketeering in the city and that city government and its law enforcement agencies weren't doing anything about it. Importance: prior restraint was unconstitutional (but added in some cases it was permissible). government could not prohibit publication

Pentagon Papers Case

1971. government wanted to stop publication of stolen, classified information that it contended jeopardized national security during the war in Vietnam. The court ruled in favor of the Times and the Post, however, it was a 1 A fizzle. 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.

Miami Herald v. Tornillo

1974. ruling that the choice of material to go into a newspaper and the decisions made as to content and treatment of public issues and public officials are decisions that must be made by the editors. the First Amendment does not give the right to force a newspaper to publish the views or ideas of a citizen.

United States v. Progressive

1979. a federal judge issued a preliminary injunction stopping publication of a magazine article that specified "three key concepts necessary to construct a hydrogen bomb". the judge ruled determined that the article included information "not found in the public realm" and that the possibility of a direct effect of violence was likely. Little precedential value because it never reached the appellate court because a newspaper in wisconsin published the same information

United States v. Bell

2005. a federal appellate court upheld a permanent injunction barring Bell from promoting and selling unlawful tax advice. court stated that this could be a classic prior restraint on speech, it also cited Near v. Minnesota in that some prior restraints are permissible. Bell's speech was not protected by 1 A

Access theory

Access to the metaphorical marketplace of ideas is not equal for all, but is skewed in favor of those with the most economic resources. 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. Socialist theory.

Ad hoc balancing

When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values. The meaning of the freedom of expression is determined solely on a case-by-case basis. Not a theory but a strategy.

prior restraint

comes in many different forms. It is a prepublication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment of a perpetrator after the material has been published or broadcast.

symbolic speech doctrine

courts treat conduct as speech if two elements 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-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.

"speech" in the first amendment

encompasses and includes conduct, not just pure speech, such as the written, printed or spoken word or image.

Meiklejohnian Theory

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

prior restraint (licensing)

laws which required printers to obtain prior approval from the government or the church before printing their handbills, pamphlets or newspapers.

Preferred position balancing theory

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. Gives freedom of expression a preferred position.

Self-Realization/Self-Fulfillment theory

speech can be inherently valuable to a person regardless of its effect on others-it can be an end in itself.

Absolutist theory

the First Amendment presents an absolute or complete barrier to government censorship. The government cannot censor the press for any reason. No exceptions, no caveats, no qualifications.

jury nullification

the power of a jury in a criminal case to ignore (nullify) a law and to return a verdict (typically a not guilty verdict) according to its conscience.

Marketplace of Ideas

the truth will be discovered or, at the very least, conceptions of the truth will be tested and challenged