Chapter Two

Objectives To understand the historical development of free expression in America. To define the limits of free expression. To understand theories that affect freedom of expression rulings.

We often take freedom for granted… Our freedoms are unique in the world; no other country has a First Amendment But it was not always the case in the U.S.—earlier generations worked for our freedom of speech

Censorship in England Very common as the Church of England wanted to silence Puritans and other dissenters Licensing system for printers as early as 1530; gov’t could review and pre-censor materials

John Milton Areopagitica: 1644, eloquent defense of free expression –Censorship unnecessary because true ideas would prevail over false ones Genesis of “marketplace of ideas”

John Locke Social contract: society enters into a contract to be governed, and can cancel the contract if the government does not fulfill its part of safeguarding natural rights Natural rights: right to life, liberty, property ownership…AND freedom of expression

John Stuart Mill Expanded on Milton’s marketplace of ideas theory On Liberty (1859) defined limits of freedom and authority Free speech is important because: –Opinion may contain truth, and we must hear –Particle of truth in a wrong opinion –Public needs to defend truth as truth, not as prejudice –Even commonly held opinions need defending to stay vital

Seditious Libel: criticism of the government Very common in England to deter criticism Common law rule: “For it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government, than to endeavor to procure animosities, as to the management of it; this has always been looked upon as a crime, and no government can be safe without it be punished.”

Freedom in the colonies: the Zenger trial 1735: John Peter Zenger, printer in NY, printed sedition against NY royal governor William Cosby (just PRINTED it) –Zenger’s attorney, Andrew Hamilton of Philadelphia, appealed to jury: it should ignore maxim “the greater the truth, the greater the libel” and instead decide for itself if the statements were true —and if so, acquit Zenger Zenger won! Hamilton’s plea worked!

What does the First Amendment mean? Millions of words have been written trying to figure that out! We KNOW that Congress DOES make laws…which laws are OK? –Which restrictions are constitutionally acceptable, and which are not? This is what we are going to spend the semester trying to determine!

Early First Amendment questions: Alien and Sedition Acts (1798) Passed hurriedly to silence political dissent in preparation for an undeclared war on France –Truth WAS recognized as a defense, per Zenger Fine of up to $2000 or two years in jail for “writing, printing, uttering or publishing any false, scandalous and malicious writing… against the government of the U.S.” –25 arrests, 15 indictments, all at opponents of John Adams and the Federalists

Do we still have these acts? No…Thomas Jefferson hated them, so when he ran for office and won in 1800, he made them an issue; people hated them too –When he was inaugurated, he pardoned all those convicted under the acts Acts expired in 1801

Scholarly views Leonard Levy: the founders intended for there to be open, robust debate on all topics of public interest (1985 reversal of 1960 narrow interpretation) Zechariah Chafee: there is balance point where freedom of speech ends, and that is when it is clear that expression imperils nation (where words incite unlawful acts) Alexander Meiklejohn: only expression that incites unlawful acts should be punished, and only after act happens and speech can be connected to act

19 th -century press freedom Marbury v. Madison (1803): established that courts have power to say what law is, and to declare law unconstitutional if it does not agree with Constitution Why do we care? This precedent set the importance of the Supreme Court and gave it power to declare laws of Congress unconstitutional!

19th century: Civil War amendments Most important for us: Fourteenth Amendment: –“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” Incorporation Doctrine: 1st Amendment applies to states (and all levels of government) through 14th

20th century: Sedition’s back Espionage Act of 1917, expanded by Sedition Act of 1918: prohibited expression that might hurt the WWI effort –2,000 arrested, 1,000 convicted Why do we care? Earliest interpretations of the First Amendment arose from these cases!

Espionage/Sedition Act Schenck v. U.S. (1919): Charles Schenck, gen. sec. of Socialist Party, convicted of leafletting to military draftees –Oliver Wendell Holmes upheld conviction, wrote famous words –“The question in every case is whether the words used 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”

Significance of clear and present danger test Supreme Court said the First Amendment is not absolute Holmes wrote, there must be some test that determines when government may abridge –“Falsely shouting fire in a crowded theatre” example Replaced bad tendency test—forbid any speech that put public officials/laws/institutions in bad light

First Amendment fears Gitlow v. New York (1925): Benjamin Gitlow wrote “Left Wing Manifesto” and was convicted of violating NY state sedition law –Court upheld conviction BUT, more importantly, established that because of 14th Amendment, states cannot abridge free speech rights –14th Amendment applies almost all the rights in Bill of Rights to states Not incorporated: 2nd, 3rd, part of 5th, and 7th

“More fear” Whitney v. California (1927): Anita Whitney (granny in tennies) convicted of violating CA criminal syndicalism act by membership in Communist Labor party –Court affirmed her conviction, but Brandeis wrote: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence” –Free speech should be suppressed ONLY in emergencies!

Post-war sedition: Smith Act (1940) Made it a crime to advocate violent overthrow of government or belong to a group advocating that position Dennis v. U.S. (1951): Eugene Dennis convicted of being Communist and conspiring to overthrow U.S. govt. by force –Court upheld the conviction and adopted revised CPD test: “courts must ask if the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger”

So what about CPD now? Yates v. U.S. (1957): yet another conviction of Communists and a new version of CPD; but Court threw out convictions this time –Smith Act could only be used if there was evidence that advocacy and teaching was of concrete action meant to overthrow government, not mere philosophy or abstract doctrine –Importance of action versus mere thoughts or discussion vs.

The 1960s Brandenburg v. Ohio (1969): man convicted of violating OH criminal syndicalism act by speaking at a KKK rally (send niggers back to Africa and Jews back to Israel) –New CPD test: Imminent lawless action—the action produced by the speech has to be IMMINENT, not just a mere call for action –Brandenburg’s conviction reversed, but some activists still angry

Interpreting the Constitution: which right is more important? Absolutist theory: No law means, no law. Balancing test: balance conflicting rights –E.g., Clear-and-Present-Danger Test “Preferred position” test: some rights are more important than others Meiklejohnian: First Amendment protection so that democracy can function. Access theory: right to speak and publish freely.

Conclusion Freedom is decided by the changing mood of the times. First Amendment freedoms can be curtailed under specific circumstances.

Objectives To understand the historical development of free expression in America. To define the limits of free expression. To understand theories that affect freedom of expression rulings.

Chapter Two