First Amendment Development Freedom of Press in England – William Caxton – first Printing Press 1476 Had no restrictions Seditious libel Licenses Publish Bonds (upfront) Freedom of Press in the Colonies – Laws existed 30 years before the first paper was published – Prior Restraint but a reluctance to convict – Licensing was prohibited in England in 1695 but not until 1720 in the U.S. John Peter Zinger – seditious libel – Published the New York Weekly Journal – Jailed in Nov – Aquited, even though it was illegal – Fair and True Criticism – key – Censorship of Unpopular Ideas

First Amendment 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 to peaceably assemble, and to petition the Government for a redress of grievances.

The First Amendment Freedom of expression in the 18 th century – Original intent – they didn’t leave much record – No Prior Restraint – No Seditious libel PERHAPS the original intent was to let anyone say anything, in order to protect the public’s right to know Freedom of expression today – 1 st amendment is based on Supreme Court interpretations, not just founders

Five First Amendment Theories Absolutist theory – “no law” – Black and Douglas Ad hoc balancing theory – Balance against social values Preferred Balancing – Some rights of free expression are more valuable than others, free expression does not trump other rights, like fair trial, free speech is the ‘preferred’ value though Meiklejohnian theory – Free speech is a means to the end of self government public speech v. private speech - Brennan Access theory – What good is free speech if you don’t have access to the press?

Struggle for Freedom Alien and Sedition Acts – of Fear of French revolution spreading to America – $2000 and 2 years in Jail – Prohibited false, scandalous and malicious publication against the gov’t – Used by Adams to try to squelch opposition voices – Expired in 1801, another peacetime sedition law would not be passed until 1940 – Various laws also passed during the prohibition era

Sedition in WWI Very unpopular war – not our struggle 1917 Espionage act, crime to willfully convey false information with the intent to cause insubordination, disloyalty, mutiny, or refusal of duty 1918 Sedition Act, amended Espionage act – crime to obstruct draft recruitment 900 convictions – 20 years, $10K Criminal syndicalism (passed by states) – no opposing symbols, flags etc.

Smith Act 1940 Communism on the rise Crime to advocate the violent overthrow of the gov’t or be a member of a group that does so Overturned in 1957, saying in Yates that although it was advocated, abstract doctrine v. action