Congress shall make no lawrespecting an establishment of religion,or prohibiting the free exercise thereof;or abridging the freedom of speech, or ofthe press; or the right of the peoplepeaceably to assemble, and to petitionthe Government for a redress ofgrievances. 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 bookthat endorsed the right of revolution, washeld to have encompassed [imagined]the king’s death; Twyn was sentenced tobe hanged, cut down while still alive, andthen emasculated, disemboweled,quartered, and beheaded--the standardpunishment 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 toknow, to utter, and toargue freely according toconscience, above allliberties.
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, judgesarbitrarily displaced, new courts created withoutconsent of the legislature by which it seems tome trial by jury is taken away when a Governorpleases, and men of known estates deniedtheir votes contrary of the received practice, thebest expositor of any law. Who is there then inthat Province that can call anything his own, orenjoy any liberty, longer than those in theadministration will condescend to let them doit?
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 notto print anything till they weresure it would offend nobody, therewould 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
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 orenforce any law which shallabridge the privileges orimmunities of citizens of theUnited States; nor shall anyState deprive any person of life,liberty, or property, without dueprocess of law. 1868
For present purposes we may and doassume that freedom of speech and of thepress--which are protected by the 1stAmendment from abridgment byCongress--are among the fundamentalpersonal rights and "liberties" protected bythe due process clause of the 14thAmendment from impairment by thestates. 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 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 All other speech
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
Megahuge Company allowsemployees to use the company’s e-mail system to announceopportunities for volunteer serviceprojects, except for political parties or causes. If you work for Megahuge, are your FirstAmendment 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 thatbroadcasters may allocate to commercials during programming directedprimarily 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”
Challenges vague overbroad “chilling effect” on free flow of information negative impact on “marketplace of ideas”
Freedom of the Press
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”?
Schenck v. United States
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."
1942 conviction upheld
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)
The Current StandardBrandenburg 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 SecurityNew York Times v. United StatesUnited States v. The Progressive, Inc.Wartime Access Restrictions JB Pictures, Inc. v. DOD
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
As a general rule, publishers andbroadcasters are not consideredliable for harm caused toindividuals by advertised productsand services.
Are we certain we know what speech is? Cohen v. California