The First Amendment Freedom of the mind The First Amendment Judicial theories September 29

The reason for the freedom 1. Search for Truth The Enlightenment edition 2. Political Participation Campaign and vote Check on government 3. Social Stability The safety valve effect 4. Individual Growth The Enlightenment version

The First Amendment an artifact of freedom 1791 “ 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 peaceably to assemble, and to petition the Government for a redress of grievances.”

Parsing the Third Amendment Congress The Civil War’s 14th amendment14th amendment Government action v. private action shall make no law abridging Prior restraint? Punishment after the fact? What about enhancing free speech? the freedom of speech conduct - gathering and distributing? conspiracy? intimidation? threats? symbols? entertainment, art, porn, obscenity? or of the press how is the role of the press related to freedom? First

Supreme Court Theories make no law abridging freedom Bad Tendency Clear and Present Danger Balancing Symbolic conduct Positive Location Categories Better change before seeing pretty Lois, Clark

Bad tendency theory Some have thought, particularly in the 19th century that speech that tends to do harm should not be protected by the First Amendment. This creates a very short range of protection and is a somewhat dated idea today. But you can see it working in cases where the court speculates about potential evils that might happen if the speech is tolerated. evil speech / press

Clear and present danger Freedom of speech and press extends to a point where there is the imminent danger of lawlessness that is likely to succeed and which government has a duty to prevent. Suggested by Justice Holmes in 1919 as a way to expand the limited protection afforded by a bad tendency approach. evil

Balancing theory Free speech rights should be weighed against other values in the interest of justice. Balancing gives rise to interesting problems:  How do you assign weights?  Should the First Amendment be in a preferred position?  How compelling should be the need?  How closely should you scrutinize?scrutinize Speech Beauty

Balancing Minimum scrutiny The content of the speech is of no particular political or social value, such as obscenity,child pornography, “fighting words,” or conspiring to commit a crime. Some government interest. Intermediate scrutiny The government’s concern is primarily about conduct unrelated to the content of the speech and the speech is especially hardy (e.g. advertising) or the speech is diluted by action (e.g. marching in a demonstration). Government’s interest must be “substantial.” Strict scrutiny The content of the speech is central to the First Amendment’s concerns about democracy. See Cohen v. California. Government’s interest then must be “compelling.”

Symbolic speech theory Expressive conduct should be treated differently from expressive speech. Control of the conduct can be allowed, even if it abridges the speech, but only if the regulation controlling the conduct is limited to that which is necessary to further a substantial government interest unrelated to the expression.

Positive theory Free speech is a right that requires government to be energetically active in its efforts to get information to people and to make sure there is always a public forum for the exchange of ideas and controversy. For example: Labeling on food and medicine SEC rules on disclosure to investors Freedom of Information requirements for government Open government meetings and courtrooms

Location and forum theories The First Amendment protects only speech and press, it does not protect the time, manner and place of speech or press from reasonable restrictions. Closely related are theories that make distinctions based on the function of the place, for example, schools, military bases and prisons cannot be absolutely free places. Public, limited, non-public and private forums.

Speech category theory Not all speech is of equal value. Some types of speech are more important than other types of speech. At the core of the First Amendment is “political speech.” It gets the greatest amount of protection. Other forms of speech are protected to a lesser extent depending on their value to society. Can some speech types be completely unprotected? obscene speech imminently dangerous speech speech created by abusing children (child porn, for example) blackmail, extortion, perjury, false advertising, conspiracy fighting words heckler’s veto

A First Amendment model Core Speech “political” Clear & present danger Time Manner Place Advertising Entertainment Broadcasting

The First Amendment Freedom of the mind The First Amendment Disruptive Speech And prior restraint October 1

Getting down to cases The meaning of the First Amendment Near v. Minnesota (1931) - an injunction is a prior restraint Sitting left to right: McReynolds, Holmes, Hughes, Van Devanter, Brandeis. Standing left to right: Stone, Sutherland, Butler, Roberts

Near v. Minnesota (1931) Facts Saturday Press was a newspaper largely devoted to publishing scandal - not all of it true. It was anti- Catholic, anti-Semitic and racist and in violation of a state statute. Issue Is a state statute providing for the permanent injunction of a newspaper consistent with the First Amendment?

Talking points The doctrine of prior restraintprior restraint William Blackstone Attacking a state law on federal grounds Jurisdiction of the Supreme Court Any person who shall be engaged in the business of regularly publishing a malicious, scandalous and defamatory newspaper is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined. Minnesota Statutes, 1927, to Jay Near   On to Miami

Abridging speech Prior Restraint? What’s the alternative? Sir William Blackstone and the meaning of freedom of the press: “No Prior Restraint”

Alternatives to prior restraint Criminal liability for harms caused by words Contempt of court Criminal speech fines, jail, forfeiture Civil liability for harms caused by words Torts Breach of contact

A legal doctrine is generally not developed in a single case - but over time Schneck v. United States (1919) Abrams v. United States (1919) Gitlow v. New York (1925) Whitney v. California (1927) Dennis v. United States (1951) Yates v. United States (1957) Brandenburg v. Ohio (1969) Evil For example: A clear and present danger From Schenck to Brandenburg, from 1919 to 1969

Clear and present danger an ongoing conversation Louis Brandeis Oliver Holmes Hugo Black Learned Hand

Brandenburg v. Ohio (1969) Facts Armed KKK organized a speech and rally on a farm Burning cross, white hoods, calls for “revengence ” The episode was televised by local TV news KKK leader, Clarence Brandenburg, was arrested for violating an Ohio statute forbidding the advocacy of terrorism Issue Does a statute forbidding or punishing as a crime the advocacy of terrorism conflict with the First Amendment guarantee of free speech? Hamilton County, Ohio, 1964

Talking points Court reverses Brandenberg’s conviction and finds unconstitutional the Ohio Criminal Syndicalism Act. Court adopts in this non-war context the Holmes/Brandeis view: Political/social speech - however hateful and offensive - is protected from punishment unless there is imminent danger of lawless action. This is the Incitement Standard - where to draw the line. When the danger is clear and present. Evil Imminent incitement

Brandenberg v. Ohio (1969) “... constitutional guarantees to not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”

A First Amendment model Core Speech Clear & present danger Time Manner Place Advertising Entertainment Broadcasting

National security Personal security Imminent and likely danger Foreseeable danger October 6

National Security clear and present danger New York Times v. The United Sates (1971) The United States v. Progressive Daniel Ellsberg

New York Times v. U.S. Facts Both the Times and the Washington Post publish parts of an official (but secret) history of U.S. involvement in Vietnam. Not a pretty picture for the U.S. Government seeks to enjoin publication Issue Does the First Amendment protect the publication of a secret, embarrassing report leaked from the Pentagon?

Talking points The presumption is that a prior restraint is unconstitutional, see Near v. Minnesota, but Some exceptions No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not “protect a man from an injunction against uttering words that may have all the effect of force. These limitations are not applicable here.” - Charles Evans Hughes None of these apply here. So the issue is how clear and present is the danger? Is the danger sufficient to overpower a presumption against prior restraint? No. The state has not proven imminent danger to the USA.

U.S. v. Progressive

U.S. v. Progressive magazine Facts Progressive plans to publish about how easy it is to find information in the USA for building a hydrogen bomb. Atomic Energy Commission objects, saying there are too many details in the article. Federal statute prohibits publication. AEC wants the courts to enjoin publication. Issue Is the risk so great that the speech should be prohibited?

Talking points Your are the judge How do you want to be wrong? Your mistake was to give too much protection to free speech and the world blows up Your mistake was to give to little protection to free speech and the world is saved What if you really get it wrong? Your mistake was to overestimate the danger and sabotage the First Amendment when, as it turns out, nothing much would have happened anyway.

Personal security Rice v. Paladin Enterprises Instructions to a killer Soldier of Fortune Advertising killers for hire More than once Olivia N. v. NBC Imitation of a rape scene no incitement not foreseeable

Personal security Hateful speech Fighting words True Threats Compelled Speech

The Weirum case Wrongful death case, but the issue is “negligence” (maybe even edging toward recklessness). Duty Arising from history, custom and practice, morals and justice To act as a reasonably prudent person in avoiding foreseeable harm to others Breach Causation Damage Attributable to the breach

The Real Don Steele

Van Nuys to Thousand Oaks KHJ Boss Angeles

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