Models of First Amendment Analysis

1. Models of First Amendment Analysis

2. First Amendment History • Dangerous utterances (1295): “any false news or tales whereby discord or occasion of discord or slander may grow between the King and his people” • Henry VIII [imprimatur] • Elizabeth I • Stationer’s Company • Court of High Commission • Court of the Star Chamber

3. The Common Law of Libel--Parliament (1695) • Criminal libel (prison, torture, death) • Blasphemy • Obscenity • Sedition: “the crime consisted on defaming or condemning or ridiculing the government . . . to the jeopardy of the public peace . . . any malicious criticism about the government that could be construed to have the bad tendency of lowering it in the public’s esteem . . . or of disturbing the peace.” • Civil libel (liable for a money payment)

4. Licensing and Censorship in the American Colonies • Eighty years past 1695 (different standard in the colonies) • Revolution in 1776 • Bill of Rights in 1791

5. Bill of Rights--First Amendment(1791) • “Congress shall make no law . . . abridging freedom of speech, or of the press. . . .” • “This Amendment . . . was adopted, as was the Fourth [prohibiting unreasonable search and seizure]. . . With the actions of the star chamber im mind. . . . The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Marcus v. Search Warrants (1961)

6. Subsequent History of Free Speech • Alien and Sedition Acts of 1798 • Espionage Act of 1917 • Shenck v. United States (1919) • Gitlow v. New York (1925)

7. Reasons for Protecting Expression • Self-fulfillment • Brandeis, pp. 7-8 • Emerson, p. 13 • Marketplace of ideas • Milton and Mill, p. 10 • Learned Hand, p. 11 • Emerson, p. 13

8. Reasons (continued) • Democratic self-governance • Emerson, p. 13 • Stability/safety-valve • Emerson, p. 14 • [Watch-dog function of the press]

9. Models of First Amendment Analysis

10. Absolutist or Literal Approach • Justice Black and Justice Douglas (Pentagon Papers Case): • “I believe when our founding fathers, with their wisdom and patriotism, wrote this Amendment, they knew what they were talking about. . . . They wanted to ordain in this country that Congress, elected by the people, should not tell the people what religion they should have or what they should believe or say or publish, and that is about it. It says ‘no law,’ and that is what I believe it means.”

11. Balancing • Courts must balance--- • The government’s concern about protecting a particular interest, with • The speaker’s, writer’s, society’s interest in free expression • Landmark Communications v. Virginia (1978) • Smith v. Daily Mail Publishing Company (1979)

12. Categorical Approach • Certain categories of speech are outside of the protections of the First Amendment • Obscene speech • Child pornography • Libelous speech • Fighting words • But failure of a category of speech to warrant First Amendment protection must not depend on the ‘point of view’ of the speaker.

13. Categorical Approach--Case • Miller v. California (1973) puts obscene speech outside of the protection of the 1 Amendment and defines it: • “a) whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest, • b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and • c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

14. Categorical Approach • RAV v. City of Saint Paul (1992) • The 1A does not protect fighting words • “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know, arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender. . . Shall be guilty of a misdeameanor.” • Found unconstitutional by the Supreme Court

15. Clear and Present Danger/Incitement • Seditious speech has no 1A protection • Seditious speech presents a clear and present danger: Expression can be punished when “the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.” Schenck v. United States (1919) • Seditious speech ‘incites’: “A state may not forbid or proscribe advocacy of the use of force or of any violation of law unless “such advocacy is directed to inciting or producing imminent lawless action and I likely to incite or produce such action.” Brandenburg v. Ohio (1969)

16. Britain’s Antiterrorism Act of 2006 • Criminalizes actions which: • “foment other serious criminal activity or seek to provoke others to serious criminal acts” • “foster hatred which might led to intercommunity violence in the U.K.” • The regulations cover “writing, producing, publishing or distributing material; public speaking, including preaching; running a Web site; or using a position of responsibility [teacher, community or youth leader].”

17. A Balancing Approach to Hate Speech: Virginia v. Black (2003) • At issue was a 50 year old VA statute banning cross-burning: sec. 18.2-423: • "It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate an provision of this section shall be guilty of a Class 6 felony." • "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

18. Facts • Barry Black, (a KKK member) had been convicted under the statute when he supervised a cross-burning in an open field. Two other defendants (not KKK members) had been convicted burned a cross on the lawn of a neighbor. Black's conviction was overturned because the jury was instructed that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent." The state may retry the defendant with the proper instructions. The other defendants, the Elliott brothers and Jonathan O'Mara, had convictions overturned by the VA Supreme Court. The state may also retry them.

19. Opinion of the Court  Cross burning originated in the 14th century as a means for Scottish tribes to signal each other. See M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia 145 (1991). Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a summons and a call to arms. See W. Scott, The Lady of The Lake, canto third. Cross burning in this country, however, long ago became unmoored from its Scottish ancestry. Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan.

20. Opinion of the Court • Cross burning as mere advocacy is protected. • Cross burning as a “true threat” (“those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”) is not protected by the First Amendment.