• Bill of Rights = first ten Amendments to the Constitution
– Remember the circumstances in which a Bill of Rights was promised and the promise was then fulfilled.
1 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 .
2 A well regulated militia, being necessary to the security of a free state , the right of the people to keep and bear arms , shall not be infringed.
3 No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
5 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself , nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation .

6 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial , by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense .
7 In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law .
8 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted .
9 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

• Study Guide Questions:
– What important “democratic” right is not mentioned anywhere in the Bill of Rights? Why do you think this important right is not included in the Bill of Rights?
– What two different kinds of rights are protected by different Amendments constituting the Bill of Rights?
Which of the two kinds of rights probably presupposes a
“democratic” or “popular” form of government, and which might be protected even under a non-democratic or non-popular form of government?

• Subject/procedural rights :
– Rights to have the law fairly and properly applied to you as a subject of the law.
– Such rights could well be protected in a non-democratic system, e.g.,
Britain in ~1790.
– Primarily Amendments 4-8
• Citizen/Political rights:
– Rights to participate in determining what the law shall be.
• The right to vote
• The right to try to influence representatives and (other) voters
– Freedoms of speech, press, assembly, and petition
– Amendment 1 [+ Religion]

• Citizen rights are often characterized in this way:
– present political minorities have the right to try to convert themselves into future political majorities by exercising the freedoms of speech, press, assembly, and petition.
• Justifications for such freedoms:
– These freedoms are natural rights (?).
– Allowing the exercise of these freedoms defuses tendencies toward violent protest, rebellion, or revolution.
– The general exercise of these freedoms informs both other citizens and elected representatives and improves democratic self-government.
• Freedom of speech is not everyone shouting at once.
• A town meeting needs a presiding officer and rules of procedure.

On Liberty
• The last justification for political freedom was classically set out by the British philosopher John Stuart Mill in On Liberty (1859).
– Mill viewed political (and many other) beliefs or opinions as being, in considerable degree, either true or false.
– So Mill definitely was not relativist (“everything is relative,”
“everyone’s opinions are as good as anyone else’s”).
– But Mill was a skeptic (we can never know for sure whether our or others’ beliefs are true or false),
– He was also a utilitarian (institutions and practices should be evaluated on the basis of their utility ), i.e.,
• the extent to which they promote human well-being.

On Liberty
• Suppose an attempt is made by government (or by social pressure or threats) to suppress the expression of dissenting (minority) opinions.
• Think of a jury in a criminal trial:
– The initial opinions of the jurors (regarding the guilt of the defendant) can properly be thought of as either true or false (but we [and they] don’t know for sure which is which).
– Suppose an initial straw vote shows the jurors are initially divided 10-2.
• There are three logical possibilities: established/majority opinion is
(1) false
(2)
(3) true mixed dissenting/minority opinion is true false mixed

On Liberty
• In (1), society [or the criminal justice system] clearly benefits from the expression of dissenting opinions,
– which may convert the dominant opinion from being false to be true,
– or convert the jury from a incorrect to a correct verdict ( Twelve
Angry Men ).
• In (2), established opinion, even if true, tends to become mere dogma and its rational basis forgotten if is not occasionally challenged by (false) dissenting opinions.
– The valuable role of “the devil’s advocate” (avoid “premature closure” / “group think,” including in juries).
• In (3), free deliberation and the give and take of debate helps sort what opinions are true and what are false.

• Justice Oliver Wendell Holmes, Jr., spoke of “the free market of ideas.”
– While he opposed reading “laissez-faire” economics into the
Constitution, he favored “laissez-faire” political speech.
• Having said all this, it remains difficult for courts, even if they endorse the Mill/Holmes theory, to apply it in particular cases.
– POLI 433 First Amendment Freedoms [constitutional law]
• Four problems (among others):
– the boundary between speech (protected from government regulation by the First Amendment) and action (not so protected);
– “rights in conflict”;
– “symbolic speech”; and
– freedom of speech implications of campaign finance laws.

• I engage in a general abstract discussion or seminar concerning anarchism, communism, etc. implying the desirability of overthrowing the government
– This is clearly speech protected by the First Amendment.
• I use words to incite a mob to attack government property or officials.
– This is clearly incitement to riot, not protected by the First
Amendment.
• Somewhere in between there is a boundary between protected speech and action that may be prohibited or punished by law.
– The same words, uttered in different circumstances, may have different consequences and thus different degrees of constitutional protection.

• The Clear and Present Danger doctrine was a famous, but unsuccessful, attempt by the SC to cope with this problem.
– Important: note difference between
• a constitutional clause (text from the Constitution) and
• a constitutional doctrine (devised by the SC to help it interpret a clause in the Constitution).
• The doctrine was introduced by Justice Holmes in his opinion for the court in the case of Schenck v. U.S.
(1919)
– World War I anti-draft activity.
– Schenck was prosecuted for interfering with the draft.
• Note many precedents cited in the opinion (vs. McCulloch v. Maryland , etc.)

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used 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.
It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.
• The doctrine is not very operational; it does little more than restate the problem.
– It was adopted by SC majorities in subsequent cases in which Holmes dissented.
– In Dennis v. U.S.
(1951), it was invoked in both the Court and dissenting opinions.
– Dennis v. U.S. was effectively reversed a few years later in Yates v.
U.S.
(1957) and the clear and present danger doctrine was dropped.

• Rights in Conflict:
• First Amendment: Congress shall make no law abridging the freedom of the press .
• Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury .
– U.S. courts are generally suspicious of prior restraint on the press. Hence
• elaborate jury selection procedures;
• sequestered juries, etc.
– Contrary practice in Canada and U.K.
• Symbolic Speech
– Burning draft cards, U.S. flag, etc.; Texas v. Johnson (1989)
• Does “Money Talk”?
– Freedom of speech implications of campaign finance laws.