Models of First
Amendment
Analysis
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
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)
Licensing and Censorship in the
American Colonies
 Eighty years past 1695 (different standard in
the colonies)
 Revolution in 1776
 Bill of Rights in 1791
(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)
Subsequent History of Free
Speech
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Alien and Sedition Acts of 1798
Espionage Act of 1917
Shenck v. United States (1919)
Gitlow v. New York (1925)
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
Reasons (continued)
 Democratic self-governance
 Emerson, p. 13
 Stability/safety-valve
 Emerson, p. 14
 [Watch-dog function of the press]
Models of First
Amendment
Analysis
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.”
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)
Categorical Approach
 Certain categories of speech are outside of the
protections of the First Amendment
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

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.
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.”
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
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)
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].”
A Balancing Approach to Hate
Speech: Virginia v. Black (2003)
 At issue was a 50 year old VA statute banning crossburning: 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."
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.
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.
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.