Comm 407:
The First Amendment
The Legacy of Freedom
2500 years quest for freedom of speech
From Athens to the First Amendment
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In Athens, the reforms of Solon in the 590s BC extended
the right of citizens to express opinions
The trend towards a liberal regime peaked in the age of
Pericles in the 430s BC
But even Athenians had certain limits on what they
considered acceptable.
The most famous example of this came when a popular
jury found Socrates guilty of introducing false gods and
corrupting the young and sentenced him to death.
The Trial of Socrates, 399 BC
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Socrates speaks to jury at his trial:
'If you offered to let me off this time on condition
I am not any longer to speak my mind... I should
say to you, "Men of Athens, I shall obey the
Gods rather than you."'
The Romans
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The Roman Republic allowed a reasonable degree of
free speech for its citizens.
One advocate of free speech in the dying days of the
republic was Cato the Younger, the chief political
antagonist of Julius Caesar and the Triumvirate
Cato’s name was to receive renewed reverence as the cause
of freedom gathered support in the eighteenth century.
Once the Roman republic had gone, tolerance of disloyal
speech varied according to the identity of the emperor
Gutenberg and printing press (1450s)
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“He created a whole new
democratic world: he had
invented the art of printing.”
(Thomas Carlyle,1833)
by 1500 there were in Europe
at least nine million books, of
thirty thousand titles, and over
a thousand printers.
1516 Erasmus: 'In a free state,
tongues too should be free.'
English tradition of freedom
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With the invention of printing presses, a system of
licensing and censorship was established.
The first real progress in opposing censorship began in the
seventeenth century, particularly with the Petition of
Right (1627), which meant that, at least in theory, no
person could be arrested solely for disagreeing with the
government.
The first recorded use of the expression “freedom of
speech” can be found in Sir Edward Coke’s Institutes of
the Laws of England (1628–44)
English tradition of freedom
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At the height of the English Civil War in 1644 came the
publication of one John Milton’s Areopagitica: an attack
on an act the Parliamentarians had passed in 1643 sought
to impose a new form of censorship.
'He who destroys a good book, kills reason itself.‘
‘Let Truth and Falsehood grapple freely…’
1689 Bill of Rights grants 'freedom of speech in
Parliament'
Tradition of Freedom of speech
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1770 Voltaire writes in a letter: 'Monsieur l‘Abbé, I detest
what you write, but I would give my life to make it possible
for you to continue to write.'
1789 'The Declaration of the Rights of Man', a
fundamental document of the French Revolution, provides
for freedom of speech .
1791 The First Amendment of the US Bill of Rights
guarantees four freedoms: of religion, speech, the press
and the right to assemble.
Tradition of Freedom of speech
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1859 'On Liberty', an essay by the philosopher John Stuart
Mill, argues for toleration and individuality.
1929 Justice Oliver Wendell Holmes, of the US Supreme
Court, outlines his belief in free speech: 'The principle of
free thought is not free thought for those who agree with
us but freedom for the thought we hate.'
1948 The Universal Declaration of Human Rights is
adopted virtually unanimously by the UN General
Assembly.
Freedom of Speech
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Free speech is a means to an end: discovering
the best idea possible.
(social reasons)
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Free speech is also an end itself: the desire for
free expression, self-fulfillment.
(individualistic reasons)
The Case for Free Speech
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Discovery of Truth: The pursuit of political
truth through competition of ideas.
A means of political participation.
Check on Government: The restraint on
tyranny, corruption, and ineptitude.
Social Stability: The facilitation of majority
rule.
The marketplace theory
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‘Let Truth and Falsehood grapple freely…’
Milton
The best test of truth is the power of the
thought to get itself accepted in the competition
of the market (Oliver Wendell Holmes)
Freedom to think as you will and to speak as
you think are means indispensable to the
discovery and spread of political truth (Justice
Louis Brandeis)
Free expression and human dignity
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The First Amendment serves not only the needs
of the polity but also those of the human
spirit—a spirit that demands self-expression
(Thurgood Marshall)
Self-fulfillment
Pleasure, Gratification
Respect
First Amendment
(Bill of Rights ratified in 1791)
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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
peaceably to assemble, and to petition the
Government for a redress of grievances.
The Bill of Rights originally applied only
to federal government
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Barron v Baltimore (1833 case based on the Fifth
Amendment):
Chief Justice John Marshall: “The first ten
amendments contain no expression indicating an
intention to apply them to the State governments."
Clear and Present Danger?
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The Alien and Sedition Acts of 1798 (expired 1801)
The Espionage Act of 1917 (applied mostly during war
time)
The Sedition Act of 1918 (repealed 1921)
Japanese Internment Executive Order
McCarthyism
The Patriot Act?
NSA
Clear and Present Danger Test
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The question is whether the words used are of
such nature as to create a clear and present
danger that they will bring about the
substantive evils that Congress has a right to
prevent (Justice Holmes)
Schenck v. United States 1919
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Facts: During World War I, Schenck mailed
circulars to draftees arguing that the draft was a
monstrous wrong (but advised only peaceful
action).
Schenck was charged with conspiracy to violate
the Espionage Act by attempting to cause
insubordination in the military and to obstruct
recruitment.
Schenck v. United States 1919
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Question: Are Schenck's words and actions
protected by the First Amendment?
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Conclusion: Schenck is not protected in this
situation. During wartime, utterances tolerable in
peacetime can be punished.
Abrams v. United States 1919
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Facts of the Case
The defendants printed and distributed leaflets
denouncing the war and US efforts to impede the
Russian Revolution.
The defendants were convicted for inciting
resistance to the war effort. They were sentenced
to 20 years in prison.
Abrams v. United States 1919
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Question Presented
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Do the amendments to the Espionage Act or the
application of those amendments in this case
violate the free speech clause of the First
Amendment?
Abrams v. United States 1919
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Conclusion: No and no. The act's amendments
are constitutional and the defendants' convictions
are affirmed. The leaflets are an appeal to violent
revolution and an attempt to curtail production of
munitions.
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Dissent: Holmes and Brandeis dissented on
narrow ground: the necessary intent had not been
shown.
The First Amendment and the States
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States’ ‘espionage/sedition’ acts
They were challenged based on the First
Amendment. However, according to Barron v
Baltimore (1833): “The first ten amendments
contain no expression indicating an intention to
apply them to the State governments."
Gitlow v. New York (1925)
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Facts of the Case
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Gitlow, a socialist, was arrested for distributing copies of a
"left-wing manifesto" that called for the establishment of
socialism through strikes and class action of any form.
Gitlow was convicted under a state criminal anarchy law,
which punished advocating the overthrow of the
government by force.
Gitlow v. New York (1925)
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Question
1. Is the New York law punishing advocacy to
overthrow the government by force an
unconstitutional violation of the free speech clause
of the First Amendment?
Gitlow v. New York (1925)
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Conclusion
Legal issue: Does the First Amendment apply to the
states? Yes, by virtue of the liberty protected by due
process that no state shall deny (14th Amendment).
On the merits (facts): A state may forbid both speech and
publication if they have a tendency to result in action
dangerous to public security, even though such utterances
create no clear and present danger. The rationale of the
majority has sometimes been called the "dangerous
tendency" test.
Incorporation doctrine
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Gitlow’s decision was based on the Equal
Protection Clause of the 14th Amendment
(Incorporation Doctrine): No state shall… deny to
any person within its jurisdiction the equal
protection of the laws.
All jurisdictions in the United States are required
to respect freedom of speech
The Smith Act of 1940
(The Alien Registration Act)
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The Act made it illegal for anyone in the United
States to advocate, abet, or teach the desirability
of overthrowing the government.
The law also required all alien residents in the
United States to file a comprehensive statement of
their personal and occupational status and a
record of their political beliefs.
The Smith Act of 1940
(The Alien Registration Act)
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This statute was made the basis of a series of prosecutions
against leaders of the Communist Party and the Socialist
Workers Party.
The constitutionality of the “advocacy” provision was
upheld in Dennis v. United States (1951)
The Court modified this position in Yates v. United
States, (1957) construing “advocacy” to mean only
urging that includes incitement to unlawful action.
Brandenburg v. Ohio (1969)
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Clarence Brandenburg was convicted of violating
Ohio statute for advocating racial strife during a
televised Ku Klux Klan rally.
Did Ohio's criminal syndicalism law, prohibiting
public speech that advocates various illegal
activities, violate Brandenburg's right to free
speech?
Does a person have the right to advocate an illegal
action?
Brandenburg v. Ohio (1969)
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The constitutional guarantees of free speech…
do not permit a State to forbid 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 produce such action
“Dangerous speech” test
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Previously “Bad tendency test”:
“dangerous speech” exists if there is tendency to
encourage or cause lawlessness
After Brandenburg (incitement test):
“dangerous speech” only if inciting or producing
imminent lawless action
Deciding what’s protected
and what’s not
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Standard of judicial review:
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Minimum Scrutiny (Rational Standard)
Strict Scrutiny (Compelling governmental
interest)
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Strict Scrutiny
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The highest standard of judicial review. To pass
strict scrutiny, the law or policy:
1. must be justified by a compelling
governmental interest
2. must be narrowly tailored to achieve that goal
or interest
3. must be the least restrictive means for
achieving that interest