The document discusses the origins and evolution of freedom of speech protections in the United States as outlined in the First Amendment. It describes how early restrictions on speech and press in England and the American colonies influenced calls for protections. Key developments included John Peter Zenger's trial, the writings of John Milton, and Benjamin Franklin's view that little would be printed if everything had to avoid offense. The First Amendment was ultimately ratified in 1791, but its meaning has been shaped over centuries through Supreme Court interpretations of various types of speech and expression.

1. THE FIRST
AMENDMENT
2013

3. 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

4. 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

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

6. 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

7. The Pillory

8. 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

9. Protests Against Government
Licensing
 John Milton – 1644 Areopagitica

10. 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

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

12. 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.

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

14. Zenger trial

15. 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

17. 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?

18. 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.

20. 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

21. 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.

22. 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."

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

24. Why freedom of speech . . .
 Social reasons
 Individualistic reasons

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

26. Individualistic Reasons
 Natural law
 Individual self-fulfillment

27. 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.

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

29. 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

30. 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)

31. 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

32. 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”

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

34. 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

35. 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

36. 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

37. Political Speech
 All other speech

38. 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

39. Applications

40. 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?

41. 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?

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

43. 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?

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

45. 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”

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

47. Freedom of the Press

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

49. Prior Restraints Prohibited
 Near v. Minnesota

50. What About “Dangerous
Speech”?

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

52. Schenck v. United States

53. 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

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

55.  "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

56. 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.”

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

58. 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."

59.  1942
 conviction upheld

60.  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

61. 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)

62. 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?

63. 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

64. 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

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

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