Constitutional Law II
Introduction to 1st Amendment
Galileo on trial - 1633
Prescribed Orthodoxy
Fall 2006
Con Law II
2
Free Speech & the Enlightenment
Maybe the church was right
Fall 2006
Con Law II
3
Challenge to Orthodoxy
Voted the most influential person of the 2d millennium
Fall 2006
Con Law II
4
Reimposing Control
Court of Star Chamber 1487-1641
Fall 2006
Con Law II
John Twyn was
arrested in
1663 for
printing a book
that offended
the king. Twyn
refused to
reveal the name
of the book's
author, so he
was publicly
castrated and
disemboweled,
and his limbs
severed from
his body. Each
piece of his
body was nailed
to a London
gate or bridge.5
Controlling Speech
Printing Monopolies

Stationers Company monopoly (1557)
 enforced by the Court of Star Chamber
Licensing

“Licensing laws” (mid-16th century)
prior
restraints
 Milton (1644): “we do injuriously, by licensing
and prohibiting, to misdoubt [truth’s] strength”
 Blackstone (1765): Freedom of press meant
only no prior restraint
Treason/Sedition

Laws of seditious libel
post
restraints
 criticism of the government
Fall 2006
Con Law II
6
Trial of John Peter Zenger (1735)
English law of seditious libel


Punishing statements derogatory of the crown
Zenger prosecuted for criticizing Gov. of NY
 Actually, just publisher, not author see here
 Hamilton defends: truth is a defense
 Judge rejects; Jury acquits (“jury nullification”)
1st Amendment to the rescue

Was its intent to
 Prohibit licensing (prior restraint) or also
 Post-publication sanctions?

Fall 2006
Can it be expanded by its intent? How?
Con Law II
7
Trial of Thomas Paine (1792)
Britain tried Paine for
seditious libel, in abstentia
Fall 2006
Con Law II
8
Alien and Sedition Acts (1798)
Prohibiting publication of

“false, scandalous, and malicious writings ..
 against the government of the US
 with intent to defame, or stir up sedition or hatred”

Truth was allowed as a defense
 (truth still not an absolute defense in British libel)
Vigorous use to control political debate


by Federalists against Republicans
Jefferson pardoned all convicted
 apparently on federalism grounds, not free speech

Fall 2006
S.Ct. never ruled on constitutionality
Con Law II
9
Masses Pub. v. Patten
(1917)
Tribute
"Emma Goldman and Alexander Berkman
Are in prison to-night,
But they have made themselves elemental forces.
Like the water that climbs down the rocks,
Like the wind in the leaves,
Like the gentle night that holds us,
They are working on our destinies,
They are forging the love of the nations."
Espionage Act of 1917
"Sec. 3. Whoever, when the US is at war shall willfully cause or
attempt to cause insubordination, disloyalty, mutiny, or refusal of
duty, in the military or naval forces of the US, or shall willfully
obstruct the recruiting or enlistment service .. shall be punished by
a fine of not more than $10,000 or imprisonment for not more than
twenty years or both.“
Fall 2006
Con Law II
10
Masses Pub. v. Patten
(1917)
Learned Hand

to cause insubordination, disloyalty,
or mutiny requires more than words
of persuasion
 lest it suppress all criticism of gov’t policy

Distinguish direct encouragement
(advocacy) to violate the law
 Ultimate action by a listener through
intermediation of mind is not the responsibility of the speaker

Statutory construction so as to avoid const’l problems
 unless congress clearly forces the issue
Reversed by 2d Cir

Fall 2006
“Act does not repress legitimate criticism of Congress”
Con Law II
11
Schenck v. US
(1919)
Violation of the Espionage Act

Leaflets sent to draftees during WWI stating
that conscription violated the 13th Amd.
Holmes

If actual obstruction of the draft is illegal
 “liability for words that produced that effect might
[also] be enforced”


Fall 2006
Speech that would be lawful if said during
peacetime may be prohibited during war
Famous “fire in a theatre” analogy
Con Law II
12
Abrams v. US
(1919)
Espionage Act of 1918


whoever, when the US is at war, shall willfully utter, print,
write, or publish any disloyal, profane, scurrilous, or abusive
language about the form of government of the US,
or advocate any curtailment of production in this country of
any thing or things, product or products, necessary or
essential to the prosecution of the war [shall be punished]
Leaflets

President Wilson’s “shameful, cowardly silence about the
intervention in Russia reveals the hypocrisy of the
plutocratic gang in Washington and vicinity."
Holding

Fall 2006
Intent to incite resistance could be punished
Con Law II
13
Abrams v. US
(1919)
Holmes’ Dissent

Hostility toward Wilson was not the same as disloyalty
toward the US or its form of government
Clear & Present Danger Test


US constitutionally may punish speech that produces or
is intended to produce a clear and imminent danger
that it will bring about forthwith certain substantive
evils that the US constitutionally may seek to prevent
This “silly leaflet” presented no immediate danger
Competition in the Marketplace of Ideas

Fall 2006
time has upset many fighting faiths; the ultimate good
desired is better reached by free trade in ideas
Con Law II
14
Subversion
Antecedents in law of seditious libel

Focus on bad effects (listeners’ response)
 Illocutionary (persuasion), not instrumental (impact)
 See
Learned Hand in Masses Publishing v. Patten (1917)
Espionage Act (1917)

Forbad interference with war effort by causing
insubordination or fomenting discontent
 Upheld in Schenck v. US (1919) (convicted for
circulating copies of 13th amend to conscripts,
which had tendency to obstruct recruiting service)
 Holmes:
Fall 2006
question is whether the words are of such a nature
as to “create a clear and present danger that they will bring
about substantive evils that Congress has right to prevent”
Con Law II
15
Dennis v. US
(1951)
Smith Act


See also Criminal Syndicalism Act (anarchy)
Forbad advocating economic or political change
through unlawful means
 Including membership in groups advocating same


Communist, socialist, leftist parties
Not necessary to share those views; membership is enough
 Unlawful acts need not actually occur
Under Clear & Present Danger test, can punish


Acts in furtherance of illegal conduct, short of attempt
How far removed or attenuated in space/time?
Fall 2006
Con Law II
16
Dennis v. US
(1951)
Clear & Present Danger test per Learned Hand


“whether the gravity of the `evil,’ discounted by its
improbability, justifies such invasion of free speech
as is necessary to avoid the danger.”
Is this a test or a principle? How do you apply it?
 Abstract advocacy sufficient because of “inflammable
world conditions”

Is it pro-speech or pro-government?
Yates v. US (1957)


Distinction between advocacy of abstract doctrine
and incitement of unlawful action
first significant departure
Fall 2006
Con Law II
17
Brandenburg v. Ohio
(1969)
Incitement

Ku Klux Klan rally
 “Give us our state rights. Freedom for the whites. We’re not a
revengent organization [but] it’s possible that there might have
to be some revengeance taken. We are marching on Congress
July the 4th, 400,000 strong.”

Why was Ohio Criminal Syndicalism Act invalid?
 Failed to distinguish between abstract advocacy and
These
criteria
treat the
speech as
part of
the
action
Fall 2006
incitement to imminent lawlessness, likely to occur
 Incitement:
urging, exhortation, solicitation
 Imminence: proximity in both space & time
 Lawlessness: act must itself be illegal
 Likelihood: need not wait for illegal act; but if unlikely to
occur, then it is abstract speech that is being punished
Con Law II
18
Solicitation
Model Penal Code, § 5.02
(1) Definition of Solicitation. A person is guilty of
solicitation to commit a crime if with the purpose of
Seems to promoting or facilitating its commission he commands,
follow
encourages or requests another person to engage in
Brandenspecific conduct that would constitute such crime or an
burg
attempt to commit such crime or would establish his
complicity in its commission or attempted commission.
(2) Uncommunicated Solicitation. It is immaterial under
Subsection (1) of this Section that the actor fails to
Does
communicate with the person he solicits to commit a
this?
crime if his conduct was designed to effect such
communication.
Fall 2006
Con Law II
19
Special Case: Prior Restraints
Originally – licensing schemes
Currently – any gov’t action designed to
prevent speech from occurring


Licensing (parade permits) [administrative]
Especially if based on
Injunctions [judicial]
the content of speech
What makes prior restraints so bad?



Fall 2006
Predictive: determined before speech occurs
Punishment based on rule violation, not the
speech itself
Any beneficial effect of speech is entirely lost
Con Law II
20
Prior Restraints
Comparing Prior and Post-Restraints

Both have a deterrent effect
 Specific deterrent with prior restraint
 General deterrent with post (punishing bad speech)

Procedural protections differ
 Prior restraint – easier to prove violation

administrative or judicial (w/o jury)
 Post restraint – harder to prove


Fall 2006
jury trial
Blackstone thought freedom of speech lay
solely in protection from prior restraints
Con Law II
21
Near v. Minnesota
(1931)
“There have been too many men
in this city and especially those in
official life, who HAVE been taking
orders and suggestions from JEW
GANGSTERS, therefore we HAVE
Jew Gangters, practically ruling
Minneapolis.”
"Every snake-faced gangster in the
Twin Cities is a JEW. Jew gangsters
practically rule Minneapolis."
Enjoined as a public
nuisance (malicious,
scandalous, defamatory)
Fall 2006
Con Law II
22
Near v. Minnesota
(1931)
Would any remedy, short of restraining the
speech, redress the injury caused by Near?
When can prior restraints be justified?

Near exceptions:
 “actual obstruction to the recruiting service …
 announcing the sailing dates of transports, or
 the numbers and location of troops”

Unprotected speech
 Obscenity
 Incitement of violence
Fall 2006
Con Law II
This speech is
protected, but PR
survives superSS
PR allowed if speech is
unprotected; but how
do you know?23
Court Injunctions
Walker v. City of Birmingham (1967)



Injunctions (even if unlawful) must be obeyed
Collateral bar rule prohibits testing constitutionality of the injunction after it is violated
Court order must be procedurally valid
 E.g., court has jurisdiction
 Notice, hearing, etc.
 Compare other collateral challenges to court orders
Fall 2006
Con Law II
24
Licensing Schemes
Permit requirements for use of public street

Justified by regulation of non-speech activity
Void schemes vs. invalid application

If scheme is void (ex: too much discretion)
 Then speakers need not seek permits

Poulos v. New Hampshire (1953)
 Can collaterally attack law

If scheme is valid
 Speakers must seek permits
 If permit wrongly denied, must seek review
 Cannot collaterally attack the law or its application

Fall 2006
Shuttlesworth v. Birmingham (1969)
Con Law II
25
Watchtower Bible v. Stratton
(2002)
Laws prohibiting solicitation are invalid

Despite purpose of protecting others’ privacy
 More nuanced (less restrictive) balancing is required
Laws requiring solicitation permits


Cantwell v. Conn (1940) (invalidating law that
gave unfettered discretion to admin. official)
Ad hoc balancing required here too
 Commercial speech/financial solicitation

State interest higher, and speech interest lower
 Political speech/non-financial solicitation

Fall 2006
State interest lower, and speech interest higher
Con Law II
26