The First Amendment
September 29
Freedom of the mind
The First Amendment
Judicial theories
The reason for the freedom
1.
Search for Truth
The Enlightenment edition
2.
Political Participation
Campaign and vote
Check on government
3.
Social Stability
The safety valve effect
4.
Individual Growth
The Enlightenment version
The First Amendment
an artifact of freedom
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.”
Parsing the Third Amendment
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Congress
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shall make no law abridging
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Prior restraint? Punishment after the fact?
What about enhancing free speech?
the freedom
of speech
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The Civil War’s 14th amendment
Government action v. private action
conduct - gathering and distributing?
conspiracy? intimidation? threats?
symbols?
entertainment, art, porn, obscenity?
or of the press
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how is the role of the press related to freedom?
Supreme Court Theories
make no law abridging freedom
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Bad Tendency
Clear and Present
Danger
Balancing
Symbolic conduct
Positive
Location
Categories
Better change before seeing pretty Lois, Clark
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.
speech / press
evil
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
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?
Speech
Beauty
Balancing
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Minimum scrutiny
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Intermediate scrutiny
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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.
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.”
Symbolic speech theory

Expressive conduct should be treated
differently from expressive speech. 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.
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:
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Labeling on food and medicine
SEC rules on disclosure to investors
Freedom of Information requirements for government
Open government meetings and courtrooms
Location and forum theories
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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.
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.
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Can some speech types be completely unprotected?
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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
A First Amendment model
Clear & present
danger
Advertising
Entertainment
Broadcasting
Time
Manner
Place
Core Speech
“political”
The First Amendment
October 1
Freedom of the mind
The First Amendment
Disruptive Speech
And prior restraint
Getting down to cases
The 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
Near v. Minnesota (1931)
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Facts
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
Saturday Press was a
newspaper largely devoted
to publishing scandal - not
all of it true. It was antiCatholic, 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?
Talking points
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The doctrine of prior restraint
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
William Blackstone
Attacking a state law on federal
grounds

Jurisdiction of the Supreme Court
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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.
Jay Near
Minnesota Statutes, 1927, 10123-1 to 10123-3.
On to Miami
Abridging speech

Prior Restraint? What’s the alternative?

Sir William Blackstone and the meaning of freedom of
the press:
“No Prior Restraint”
Alternatives to prior restraint
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Criminal liability for
harms caused by words
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Contempt of court
Criminal speech
 fines, jail, forfeiture
Civil liability for harms
caused by words
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Torts
Breach of contact
A legal doctrine is generally
not developed in a single case
- but over time
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For example: A clear and present danger
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From Schenck to Brandenburg, from 1919 to 1969
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)
Evil
Evil
Evil
Evil
Evil
Evil
Evil
Evil
Clear and present danger
an ongoing conversation
Learned Hand
Louis Brandeis
Oliver Holmes
Hugo Black
Brandenburg v. Ohio (1969)
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Facts
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Armed KKK organized a speech and rally
on a farm
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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
Talking points
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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.
Evil
incitement
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.”
A First Amendment model
Clear & present
danger
Advertising
Entertainment
Broadcasting
Core Speech
Time
Manner
Place
National security
Personal security
October 6
Imminent and likely danger
Foreseeable danger
National Security
clear and present danger

New York Times v. The United Sates (1971)
Daniel Ellsberg
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The United States v. Progressive
New York Times v. U.S.
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Facts
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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.
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Government seeks to enjoin publication
Issue

Does the First Amendment protect the publication of a
secret, embarrassing report leaked from the
Pentagon?
Talking points
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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
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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.
U.S. v. Progressive
U.S. v. Progressive magazine
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Facts
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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?
Talking points
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Your are the judge
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How do you want to be wrong?
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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.
Personal security

Rice v. Paladin Enterprises
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Soldier of Fortune
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Instructions to a killer
Advertising killers for hire
 More than once
Olivia N. v. NBC
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Imitation of a rape scene
 no incitement
 not foreseeable
Personal security
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Hateful speech
Fighting words
True Threats
Compelled Speech
The Weirum case
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Wrongful death case, but the issue is “negligence”
(maybe even edging toward recklessness).
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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
The Real
Don Steele
Van Nuys to Thousand Oaks
KHJ
Boss
Angeles
end