The First Amendment

1. The First Amendment September 29 Freedom of the mind The First Amendment Judicial theories

2. The reason for the freedom • Search for Truth The Enlightenment edition • Political Participation Campaign and vote Check on government • Social Stability The safety valve effect • Individual Growth The Enlightenment version

3. 1791 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendmentan artifact of freedom

4. Parsing the Third Amendment First • Congress • The Civil War’s14th amendment • Government action v. private action • shall make no law abridging • Prior restraint? Punishment after the fact? • What about enhancing free speech? • the freedom • of speech • conduct - gathering and distributing? • conspiracy? intimidation? threats? • symbols? • entertainment, art, porn, obscenity? • or of the press • how is the role of the press related to freedom?

5. Supreme Court Theoriesmake no law abridgingfreedom • Bad Tendency • Clear and Present Danger • Balancing • Symbolic conduct • Positive • Location • Categories Better change before seeing pretty Lois, Clark

6. Bad tendency theory • Some have thought, particularly in the 19th century that speech that tends to do harm should not be protected by the First Amendment. • This creates a very short range of protection and is a somewhat dated idea today. But you can see it working in cases where the court speculates about potential evils that might happen if the speech is tolerated. evil speech / press

7. Clear and present danger • Freedom of speech and press extends to a point where there is the imminent danger of lawlessness that is likely to succeed and which government has a duty to prevent. • Suggested by Justice Holmes in 1919 as a way to expand the limited protection afforded by a bad tendency approach. evil

8. Balancing theory • Free speech rights should be weighed against other values in the interest of justice. • Balancing gives rise to interesting problems: • How do you assign weights? • Should the First Amendment be in a preferred position? • How compelling should be the need? • How closely should you scrutinize? Beauty Speech

9. Balancing • Minimum scrutiny • The content of the speech is of no particular political or social value, such as obscenity,child pornography, “fighting words,” or conspiring to commit a crime. Some government interest. • Intermediate scrutiny • The government’s concern is primarily about conduct unrelated to the content of the speech and the speech is especially hardy (e.g. advertising) or the speech is diluted by action (e.g. marching in a demonstration). Government’s interest must be “substantial.” • Strict scrutiny • The content of the speech is central to the First Amendment’s concerns about democracy. See Cohen v. California. Government’s interest then must be “compelling.”

10. Symbolic speech theory • Expressiveconduct should be treated differently from expressivespeech. Control of the conduct can be allowed, even if it abridges the speech, but only if the regulation controlling the conduct is limited to that which is necessary to further a substantial government interest unrelated to the expression.

11. Positive theory • Free speech is a right that requires government to be energetically active in its efforts to get information to people and to make sure there is always a public forum for the exchange of ideas and controversy. For example: • Labeling on food and medicine • SEC rules on disclosure to investors • Freedom of Information requirements for government • Open government meetings and courtrooms

12. Location and forum theories • The First Amendment protects only speech and press, it does not protect the time, manner and place of speech or press from reasonable restrictions. • Closely related are theories that make distinctions based on the function of the place, for example, schools, military bases and prisons cannot be absolutely free places. • Public, limited, non-public and private forums.

13. Speech category theory • Not all speech is of equal value. Some types of speech are more important than other types of speech. At the core of the First Amendment is “political speech.” It gets the greatest amount of protection. Other forms of speech are protected to a lesser extent depending on their value to society. • Can some speech types be completely unprotected? • obscene speech • imminently dangerous speech • speech created by abusing children (child porn, for example) • blackmail, extortion, perjury, false advertising, conspiracy • fighting words • heckler’s veto

14. A First Amendment model Clear & present danger Advertising Entertainment Broadcasting Core Speech “political” Time Manner Place

15. The First Amendment October 1 Freedom of the mind The First Amendment Disruptive Speech And prior restraint

16. Getting down to casesThe meaning of the First Amendment • Near v. Minnesota (1931) - an injunction is a prior restraint Sitting left to right: McReynolds, Holmes, Hughes, Van Devanter, Brandeis. Standing left to right: Stone, Sutherland, Butler, Roberts

17. Near v. Minnesota (1931) • Facts • Saturday Press was a newspaper largely devoted to publishing scandal - not all of it true. It was anti-Catholic, anti-Semitic and racist and in violation of a state statute. • Issue • Is a state statute providing for the permanent injunction of a newspaper consistent with the First Amendment?

18. Talking points • The doctrine of prior restraint • William Blackstone • Attacking a state law on federal grounds • Jurisdiction of the Supreme Court • Any person who shall be engaged in the business of regularly publishing a malicious, scandalous and defamatory newspaper is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined. Minnesota Statutes, 1927, 10123-1 to 10123-3. Jay Near On to Miami

19. Prior Restraint? What’s the alternative? Sir William Blackstone and the meaning of freedom of the press: “No Prior Restraint” Abridging speech

20. Criminal liability for harms caused by words Contempt of court Criminal speech fines, jail, forfeiture Civil liability for harms caused by words Torts Breach of contact Alternatives to prior restraint

21. A legal doctrine is generally not developed in a single case - but over time • Schneck v. United States (1919) • Abrams v. United States (1919) • Gitlow v. New York (1925) • Whitney v. California (1927) • Dennis v. United States (1951) • Yates v. United States (1957) • Brandenburg v. Ohio (1969) • For example: A clear and present danger • From Schenck to Brandenburg, from 1919 to 1969 Evil Evil Evil Evil Evil Evil Evil Evil

22. Clear and present dangeran ongoing conversation Learned Hand Louis Brandeis Oliver Holmes Hugo Black

23. Brandenburg v. Ohio (1969) • Facts • Armed KKK organized a speech and rally on a farm • Burning cross, white hoods, calls for “revengence” • The episode was televised by local TV news • KKK leader, Clarence Brandenburg, was arrested for violating an Ohio statute forbidding the advocacy of terrorism • Issue • Does a statute forbidding or punishing as a crime the advocacy of terrorism conflict with the First Amendment guarantee of free speech? Hamilton County, Ohio, 1964

24. Talking points • Court reverses Brandenberg’s conviction and finds unconstitutional the Ohio Criminal Syndicalism Act. • Court adopts in this non-war context the Holmes/Brandeis view: Political/social speech - however hateful and offensive -is protected from punishment unless there is imminent danger of lawless action. • This is the Incitement Standard - where to draw the line. When the danger is clear and present. Imminent Evil incitement

25. Brandenberg v. Ohio (1969) • “... constitutional guarantees to 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.”

26. A First Amendment model Clear & present danger Advertising Entertainment Broadcasting Core Speech Time Manner Place

27. National securityPersonal security October 6 Imminent and likely danger Foreseeable danger

28. National Security clear and present danger • New York Times v. The United Sates (1971) • The United States v. Progressive Daniel Ellsberg

29. New York Times v. U.S. • Facts • Both the Times and the Washington Post publish parts of an official (but secret) history of U.S. involvement in Vietnam. Not a pretty picture for the U.S. • Government seeks to enjoin publication • Issue • Does the First Amendment protect the publication of a secret, embarrassing report leaked from the Pentagon?

30. Talking points • The presumption is that a prior restraint is unconstitutional, see Near v. Minnesota, but • Some exceptions No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not “protect a man from an injunction against uttering words that may have all the effect of force. These limitations are not applicable here.” - Charles Evans Hughes • None of these apply here. So the issue is how clear and present is the danger? Is the danger sufficient to overpower a presumption against prior restraint? • No. The state has not proven imminent danger to the USA.

31. U.S. v. Progressive

32. U.S. v. Progressive magazine • Facts • Progressive plans to publish about how easy it is to find information in the USA for building a hydrogen bomb. • Atomic Energy Commission objects, saying there are too many details in the article. Federal statute prohibits publication. AEC wants the courts to enjoin publication. • Issue • Is the risk so great that the speech should be prohibited?

33. Talking points • Your are the judge • How do you want to be wrong? • Your mistake was to give too much protection to free speech and the world blows up • Your mistake was to give to little protection to free speech and the world is saved • What if you really get it wrong? • Your mistake was to overestimate the danger and sabotage the First Amendment when, as it turns out, nothing much would have happened anyway.

34. Personal security • Rice v. Paladin Enterprises • Instructions to a killer • Soldier of Fortune • Advertising killers for hire • More than once • Olivia N. v. NBC • Imitation of a rape scene • no incitement • not foreseeable

35. Personal security • Hateful speech • Fighting words • True Threats • Compelled Speech

36. The Weirum case • Wrongful death case, but the issue is “negligence” (maybe even edging toward recklessness). • Duty • Arising from history, custom and practice, morals and justice • To act as a reasonably prudent person in avoiding foreseeable harm to others • Breach • Causation • Damage • Attributable to the breach

37. The Real Don Steele

38. Van Nuys to Thousand Oaks KHJ Boss Angeles

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