COM 384
Ron Bishop, Ph.D.

The Five Freedoms…
• “Congress shall make no law respecting the establishment of religion , or prohibiting the free exercise thereof, or abridging the freedom of speech , or the press , or the right of the people peaceably to assemble , and to petition the government for redress of grievances .”

The First Amendment
• It’s a free country, damnit!
• Must consider the context in which debate occurs.
• We embrace with great passion our freedom to say what we want, where we want, when we want…
• But there’s a gap, a discrepancy in our commitment.
• Don’t tell me what to say – tell him …or her …or them …
• Who has the ear of our officials and the media?

The First Amendment
• The First Amendment is evolving, if that’s what you want to call it…
• The courts are a catalyst for this evolution.
• We like to think public officials and the courts respect free expression.
• There are more limits these days, more attacks on free expression.
So I leave it to you…

Should We Protect This?

Or This?

Or This?

Or This?

Or This?

Or This?

Or This?

Or This?

Or This?

To Sum Up – What’s Protected?
• Obscenity – most of the time.
• Indecency – I know it when I see it; wait, that’s porn.
• Hateful, nasty speech – still, yes.
• Flag burning – yes.
• Yelling “Fire!” in a crowded theater – no.
BOTTOM LINE: You generally can’t punish a speaker, but it’s the “generally” that gets us in trouble.

Or Can You?
• So it’s not absolute after all – not everything is protected.
• Government can – and does and will – restrict speech.
• It’s an evolving concept, with evolution shaped by politics,
Congress, the Courts.
• Freedom is only won through hard fought battles, kept through vigilance.
• Otherwise, it’s back to licensing the press and a ban on criticizing the government (didn’t completely end this until late 20 th Century).

Or Can You?
• Not much that might, under wide definitions, threaten national security.
• Punishing advocacy of illegal or even unpopular ideas isn’t new.
• Alien and Sedition Act of 1798
• Espionage Act of 1917
• Smith Act of 1940
• State sedition, criminal syndicalism laws

Or Can You?
• Supreme Court doesn’t rule on how far government can go to thwart folks who want to overthrow the government.
• Then: Dennis v. U.S. (1951): The evil the government wanted to prevent was bad enough to justify restricting speech.
• If the government detects indoctrination and commitment to a course of action, it must act, even if the group isn’t successful, as here.
• This was “a highly organized conspiracy.”
• But does advocacy automatically translate into action?

Or Can You?
• Yates v. U.S. (1957): A change of heart; convictions of
Party leaders set aside, some acquitted, others remanded for retrial.
• Smith Act barred “advocacy of action,” not “advocacy in the realm of ideas.”
• You have to be urged to do something, not just to believe in something, Justice John Marshall Harlan II wrote.
• Smith Act hasn’t been invoked to punish in 40+ years.
• Key words: “inciting imminent lawless action.”

It Boils Down To This…
• What can I say?
• When and where can I say it?
• Under what circumstances will officials tell me I can’t say it?

And Finally…This?

Benjamin Harris

They Call Me Mr. Zenger…

The First Amendment
• Framers didn’t define “freedom.”
• No instruction manual – not that we’d read it.
• Just got a “sweeping command” – and then the Alien and
Sedition Acts in 1798.
• And how could the Framers have guessed we’d invent
TMZ.com?
• Do we get that there must be “freedom for the thought we hate,” as Justice Holmes said.
• Judges say they don’t pay attention to public opinion, but…
• Courts’ commitment to FOS, FOE grew as ours did.

The First Amendment
• Commit this one to memory: there’s always room for mischief on the part of officials.
• FOE has to be vigorously defended.
• Calls now and then to license journalists, to revive sedition laws.
• So we’re not all 1A cheerleaders after all.
• Congress left things alone until passing the Espionage Act in 1918. Made it a crime to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about Constitution, the military, the flag.

The First Amendment
• But then, Scalia joined the majority in striking down a flag burning law.
• But then , even a 1A absolutist like Hugo Black was OK with some restrictions.
• So you just never know, do you?

The First Amendment
• First Amendment claim not endorsed by the Supreme
Court until 1919 – and that was in a dissent.
• Until then, Supreme Court treated First Amendment as unimportant.
• If speech offended anyone , could ban it.
• Patterson v. Colorado (1907):
• Upheld ban on speech “contrary to public welfare.”

An Open Culture?
• Have to ask ourselves:
•
•
•
•
How unregulated a country do we really want?
Where’s the line between liberty and order?
Is the demand for “no law” absolute?
Do we really want everyone saying anything they want – at any time?

An Open Culture?
• After all, speech can be:
• Uplifting and degrading
• Enlightening and redundant
• Profound but trivial
• Rational and emotional
• Contemplative and raucous
• Orderly and chaotic
• Organized and messy
• Soft and loud
IN SHORT: People say and write some dumb-ass things.

An Open Culture?
• Censorship is a social instinct.
• Openness ain’t easy.
• If we’re really into openness, rules have to be created to protect, encourage, nurture it.
• We decide what we say; government has to justify any encroachment on free expression.
• Miami Herald Publishing v. Tornillo (1974)
• Speech gets a “preferred position.”

An Open Culture - Rationales
• The “Marketplace of Ideas” ( Aeropagitica , 1745).
• Who gets to shop? Who gets to sell?
• Human dignity
• The human spirit demands self-expression (Thurgood Marshall).
• Self-governance
• Free speech “indispensable to the discovery and spread of truth”
(Louis Brandeis).

At The Marketplace
• Truth, if it exists, is persistent.
• We’ll eventually get there.
• But it’s vulnerable – needs a little nudge.
• Holmes: claims truth is an illusion, provisional.
• The market will provide “the best test of truth.”
• Can’t test the idea that “truth will triumph” though,
• Would have to measure what’s true and not true.
• The “search” is the strength.
• “Frequently and fearlessly discuss,” says John Stuart Mill.

What of Human Dignity?
• Our spirit demands self-expression.
• Not always about finding truth – sometimes you just have to get something off your chest.
• But…this seems a little hedonistic, self-indulgent.
• What about “nourishment?’”
• Should we just protect important ideas?
• Manufactured outrage isn’t enough to limit speech.
• Should thought be protected?
• Should the government be able to regulate harmful thought?

Finally, Self-Governance
• FOS a tool to keep the ship sailing, the motor running
• “Indispensable,” said Brandeis, “to the discovery and spread of political truth.”
• Feels great to use info to participate, to pursue truth, to make sure the majority does in fact rule, to restrain despotic tendencies, to maintain stability.
• Openness is best – can’t punish just to restore order.

First Amendment Approaches
• Absolutist
• Ad Hoc Balancing
• Preferred Position Balancing
• Meiklejohnian
• Access

And What About You?
• The First Amendment goes too far in the rights it guarantees.
• Musicians should be allowed to write and to sing songs with offensive lyrics.
• It’s important for our democracy that the news media act as a watchdog on government.
• The First Amendment requires a clear separation of church and state.

And What About You?
• Public HS students should be allowed to report on controversial issues without official pre-approval.
• Public schools should be allowed to discipline students who use their own computers at home to post material school officials say is offensive.
• Journalists should be allowed to keep a source confidential.
• The proceedings of the U.S. Supreme Court should be televised.

And What About You?
• Freedom to worship applies to all religious groups, no matter how extreme their views.
• The U.S. Constitution should be amended to ban flag burning.

When the Court Dives In…
• Schenck v. U.S. (1919)
• Clear and present danger test is born.
• Frohwerk v. U.S. (1919)
• 1A doesn’t give immunity “for every possible use of language,” says
Holmes.
• Debs v. U.S. (1919)
• Conviction based on one speech advocating socialism, draft resistance, and opposition to war is upheld.
•
• Abrams v. U.S. (1919)
• “Poor and puny anonymities”
Gitlow v. New York (1925)
• 14 th Amendment applies 1 st to the states.
• Whitney v. California (1927)
• Justice Brandeis’ brilliant dissent.

When the Court Dives In…
• Schneider v. N.J. (1939)
• Can’t bar handbills by arguing you want to keep the streets clean…
• Chaplinsky v. N.H. (1942)
• Punishing “fighting words” is OK.

Schenck v. U.S.