The 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 peaceably to assemble, and to petition the Government for a redress of grievances. 1791

What Does the First Amendment Protect? Congress may not establish a religion Free exercise of religion Freedom of speech Freedom of the press Right to assemble Right to petition government

Origins of the First Amendment Government attempts to limit free expression 1275 -- De Scandalis Magnatum Star Chamber British Licensing Acts Stamp Act in 1712

Prosecutions for seditious libel promoting ill opinions of the government and advocating change hundreds convicted (seventeenth and eighteenth centuries) fines, imprisonment, whipping, pillory some publications critical of the king punished as treason

Punishment was not pleasant . . . In 1663, William Twyn, for printing a book that endorsed the right of revolution, was held to have encompassed [imagined] the king’s death; Twyn was sentenced to be hanged, cut down while still alive, and then emasculated, disemboweled, quartered, and beheaded--the standard punishment for treason. Leonard Levy

Protests Against Government Licensing John Milton – 1644 Areopagitica

Areopagitica For the Liberty of Unlicensed Printing had marital difficulties wanted to publish unlicensed pamphlets about divorce book had little effect when first published but call for freedom of expression left its mark over time

Give me liberty to know, to utter, and to argue freely according to conscience, above all liberties.

The Power of Truth Let truth and falsehood grapple . . . In a free and open encounter, truth would always win. Regulations of communication injures truth by doubting the strength of truth.

Meanwhile in America . . . Licensing in Massachusetts -- 1662 Pennsylvania and Virginia also had licensing 1639 - 1776 -- lots of prosecutions John Peter Zenger - 1735

John Peter Zenger publisher of New York Weekly Journal first independent political paper published in America opposed New York Governor William Crosby editor of paper, James Alexander, wrote most of critical material Zenger was jailed for seditious libel

One objectionable passage . . . We see men’s deeds destroyed, judges arbitrarily displaced, new courts created without consent of the legislature by which it seems to me trial by jury is taken away when a Governor pleases, and men of known estates denied their votes contrary of the received practice, the best expositor of any law. Who is there then in that Province that can call anything his own, or enjoy any liberty, longer than those in the administration will condescend to let them do it?

Zenger trial . . . Andrew Hamilton defended Zenger. Admitted publication but argued, to jury, that statements about the governor were true. Truth is now a defense to libel cases, but wasn’t a defense then. Clear sign America on own legal path.

If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed. Benjamin Franklin

First Amendment Was third amendment at first, but two that preceded it were not adopted. One of first ten amendments adopted. Written chiefly by James Madison. Consulted speech clauses in various state constitutions. Framers had broad disagreement over what “freedom of speech” meant in various situations.

Original Amendments Proposed Number of Representatives in Congress 27th Amendment (1992) "No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened."

Interpreting the First Amendment . . . Precedent Weigh competing interests Consider public policy Ponder language of amendment Consider history of First Amendment

Why freedom of speech . . . Social reasons Individualistic reasons

Social Reasons Discovery of truth Participation in democracy Check on government Social stability

Individualistic Reasons Natural law Individual self-fulfillment

Nature of First Amendment protection . . . Liberty vs. government power. Few First Amendment cases in first 100 years of existence. Viewed only to prevent federal actions against freedom of expression. Supreme Court agreed with that view in 1833 case.

Extension of First Amendment. 14th Amendment -- 1868 -- post-Civil War 1925 Supreme Court case 14th Amendment page 1 14th Amendment page 2

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. 1868

For present purposes we may and do assume that freedom of speech and of the press--which are protected by the 1st Amendment from abridgment by Congress--are among the fundamental personal rights and "liberties" protected by the due process clause of the 14th Amendment from impairment by the states. Gitlow v. New York 268 U.S. 652, 666 (1925)

Defining the First Amendment protections not absolute not all speech protected not all speech protected in same manner Supreme Court has “fleshed out” meaning of First Amendment over the years by applying it to specific factual situations -- i.e., to cases

How to Analyze a First Amendment Case Is government action involved? Does the law, etc. of the government impede expression? What type of speech is it? unprotected speech plus, commercial, broadcast all other -- or “political speech”

Unprotected Speech Clear and Present Danger (Incitement) Fighting Words False Commercial Speech Defamation Obscenity Child Pornography

Unprotected Speech Minimum Scrutiny (lowest level) A rational basis for the regulation is required. government action must be rationally related to any government interest and not overbroad rational basis required by due process clauses of Fifth and Fourteenth Amendments

Commercial, Broadcast, Symbolic Speech Commercial speech -- advertising speech intended to generate marketplace transactions Broadcast -- free, over the air radio and television Symbolic -- burning the flag, protest marches

Commercial, Broadcast & Symbolic Intermediate Scrutiny Substantial Interest required government action must be narrowly tailored to advance a substantial government interest smooth operation of a government program protecting community order and tranquility safeguarding private economic interests indirectly promoting public health upholding basic notions of morality

Political Speech everything else

Political Speech Strict Scrutiny Compelling Government Interest government action must be narrowly tailored to advance a compelling government interest protecting nation’s very existence safeguarding life or limb shielding children from lasting emotional harm

does case involve a “public forum”?

Megahuge Company allows employees to use the company’s e-mail system to announce opportunities for volunteer service projects, except for political parties or causes. If you work for Megahuge, are your First Amendment rights being violated?

Erie (PA) statute makes it a misdemeanor to appear in public place “in a state of nudity” dancing is “ protectable expression ” under the First Amendment what about nude dancing?

The FCC restricts the maximum time that broadcasters may allocate to commercials during programming directed primarily to children on both commercial and cable television.

First Amendment Issue Is government action involved? Does the law impede expression? What type of speech is it? Unprotected - minimum scrutiny, rational basis Commercial, Broadcast, Symbolic - intermediate scrutiny substantial interest Political - strict scrutiny, compelling interest Narrowly tailored to advance interest?

Time, Place, Manner Regulations restrictions on marches, picketing, etc.

Time, Place, Manner Regulations Intermediate Scrutiny Substantial Government Interest Content neutral -- only time, place, manner no room for administrative discretion applied consistently across board ample alternatives for communication of message Tests known as “standard of judicial review”

Public Forum speech in places owned by the government--in public places public forum : where free exchange of ideas is traditionally a principal purpose or a specifically designated purpose

Challenges vague overbroad “ chilling effect” on free flow of information negative impact on “marketplace of ideas”

Gathering the News generally no First Amendment right to get or receive information

Prior Restraints Prohibited Near v. Minnesota

What About “Dangerous Speech”?

The First Amendment does not protect speech that creates a “clear and present danger.” What is a “clear and present danger”?

The Facts World War I distributed flyer urging men to “assert [their] opposition to the draft” proposed peaceful resistance charged with conspiracy to violate the Espionage Act of 1917 attempting to cause insubordination in the military obstructing recruitment

Holding conviction was constitutional nation was at war during wartime, more restrictions of speech are permissible created the “clear and present danger standard”

"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.” shouting “fire” in a crowded theater

Another Espionage Act case . . . Abrams v. United States (1919) conviction upheld Justice Holmes dissent “ . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

The First Amendment does not protect “fighting words.” What are “fighting words”?

Chaplinsky v. New Hampshire The complaint charged that appellant, "with force and arms, in a certain public place in said city of Rochester, to wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat, the words following, addressed to the complainant, that is to say, 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,' the same being offensive, derisive and annoying words and names."

Fighting Words doctrine still recognized But only “use” has been Chaplinsky those which by their very utterance inflict injury or tend to incite an immediate breach of the peace

More recently . . . personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions Cohen v. California (1971) words must be directed to an individual, not a group reasonably incite the average person to retaliate City of Garfield Heights v. Yaro (Ohio App. 1999)

Village of Skokie v. National Socialist Party tested concept of fighting words symbolic speech or expressive conduct

Quiz 1 Stars! Christopher Bayes Regina Luz Geoff Meisner Dragan Petrovic Gregg Rosenblum Daniel Velarde

The Current Standard Brandenburg v. Ohio does the expression advocate the use of illegal force or violence? is it directed toward actually inciting such illegal conduct? would the advised conduct be imminent, or immediate? is the expression actually likely to produce that illegal conduct?

Speech that Threatens National Security New York Times v. United States United States v. The Progressive, Inc. Wartime Access Restrictions JB Pictures, Inc. v. DOD

New York Times v. United States

United States v. The Progressive

Speech & Personal Injury In general: may be liable for injury if conduct negligent Negligence -- failure to exercise reasonable care or due care legal duty is owed (always exists where is a reasonably foreseeable risk of direct harm) legal duty is breached (the negligent conduct) breach was proximate cause of resulting injury

Copycat Zamora v. Columbia Broadcasting System Radio/TV Weirum v. RKO General, Inc. Recordings McCollum v. CBS, Inc. Books Winter v. G.P. Putnam’s Sons Advertising Soldier of Fortune

As a general rule, publishers and broadcasters are not considered liable for harm caused to individuals by advertised products and services.

Are we certain we know what speech is? Cohen v. California

What about burning draft cards?

The First Amendment

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