Questions of Constitutionalism FREEDOM OF SPEECH Questions of Constitutionalism

Libel and Slander Ordinary citizens Celebrity Prove the statement was false Caused harm to them Made without research into the truthfulness of the statement. Celebrity Prove the 1st three and Intent to do harm or with "reckless disregard" for the truth.

Questions of Constitutionality What content is restricted? Is the audience captive or free to leave? Is the location public or private? Are other avenues of expression available? Are the rules equitably applied?

Historical Limitations on Free Speech

Sedition Act of 1735 Peter Zenger Case Printer of New York Weekly Journal Opposed NY Governor William Cosby Accused of printing libelous statements Argued – not libelous because they are true

World War I Espionage Act of 1917 Sedition Act of 1918 Stiff penalties for uttering or circulating false statements intended to interfere with the war effort. Sedition Act of 1918 Crime to interfere with sale of government securities. Prohibited saying or publishing anything disrespectful of the US government.

Clear and Present Danger Schenck v US (1919) General Secretary of Socialist Part of America. War – caused and benefit of the rich Americans – urged to oppose war Mailings – 1,000 copies urging draftees and soldiers to resist the draft.

Schenck Decision (9-0) Schenck Decision Upheld conviction – Espionage Act reasonable and acceptable in time of war. Free Speech is not absolute – words can be weapons Clear and Present Danger

Fighting Words NY Law Illegal to address any offensive, derisive or annoying word to any other person who is lawfully in the street or public place or call a person by any offensive or derisive name.

Fighting Words Chaplinsky v NY (1942) Jehovah’s Witness Distributed leaflets with crowd calling all religion a “racket” Police attempted to escort him away thinking violence might erupt. Chaplinsky asked for those responsible for the unrest to be arrested. Marshall refused – called him a “God Damned racketeer and a fascist”

Chaplinsky Decision (9-0) Chaplinsky’s type of statement might lead the average person to breach the peace. Lewd & obscene, the profane, the libelous, and the insulting or ‘fighting’ words which inflict injury or tend to incite an immediate breach of the peace.

Cold War Smith Act Federal crime to “advocate, abet, advise or teach” the overthrow or the destruction of the any US government by force or violence or to become a member of a group devoted to that end. Start 2nd period 4/6

Clear and Probable Danger Dennis v US (1951) 11 leaders – Communist Party Charged with violating the Smith Act Conspiracy to teach and advocate such activity to overthrow the government.

Smith Decision (6-2) “Obvious purpose of the statute is to protect the existing government not from change by peaceful, lawful and constitutional change but from violence, revolution and terrorism.” Conspiracy created the danger. Clear and probable danger the government had the right to protect itself. Protection of free speech depends on circumstances.