Katz
Speech, Press Outline
Professor Richards – Fall 2006
UNIT I: SUPPRESSION OF DANGEROUS IDEAS AND INFORMATION
When may the gov’t restrict speech because it might harm to the gov’t, private, individuals, or society in general?
FOUR PROBLEMS IN SUPPRESSING SPEECH:
A. Expression that induces unlawful conduct
B. Expression that criticizes the judicial process
C. Expression that provokes a hostile audience response
D. Expression that disseminates confidential information
A. EXPRESSION THAT INDUCES UNLAWFUL CONDUCT
May the gov’t constitutionally restrict expression because it might persuade, incite, or otherwise “cause” readers or listeners to engage in unlawful conduct?
-This reaches to the very core of the F.A. because it is so similar to the problem of restricting seditious libel
BASIC TEST:
-Speech advocating force or breaking of the law is unprotected when:
1. Directed to inciting or producing
2. Imminent lawless action
3. And is likely to produce such an action
Policy Background to Suppressing this Type of Speech
-Perceived harm justifies the suppression of the speech
-And the likely harm is imminent
-This unprotected area is very narrow
-Speech that praises or urges illegal conduct
OVERVIEW
Four Types of Speech that Induces Unlawful Conduct:
1. Speech that criticizes gov’t policy and discusses public issues generally
-Perhaps SCHENCK(might be under #4)
2. Speech that urges that breaking the law is moral or necessary to achieve political goals
-Civil Disobedience: MLK Jr., Ghandi, Dec. of Indep.
3. Speech that advocates law breaking some time in the future
-GITLOW
-“Bad Tendancy Test”
4. Speech that expressly advocates breaking the law now!
-ABRAMS “Let’s strike right now!”
-Let’s seize the Dean’s suite and turn those tyrants out!
ESPIONAGE ACT OF 1917
Crime to willfully obstruct the recruitment or enlistment of the U.S. Military
SHAFFER (20)
-Shaffer mailed a book of seditious utterances against the military
-BAD TENDENCY TEST
If the incited activity has the tendency to lead to substantial evil, the gov’t may regulate the incitement
-Held: Court determined probably bad tendency of decreasing enlistment
MASSES (21)
-Postmaster prevented Masses from sending out revolutionary magazine because it violated the Espionage Act
-J. HAND: distinguishes between mere advocacy of ideas and express incitement
-Held: Masses is granted injunction against postmaster because speech did not rise to level of inciting people to break the law
SCHENCK (24)
-Schenck was convicted for sending mailings to drafted men allegedly calculated to cause insubordination among the troops, breaking Espionage Act of 1917
-J. HOLMES rejects J. BLACKSTONE’S ban on onlyprior restraints(needing gov’t permission to print)in favor of the Clear and Present Danger Test
-The test is just trotted out, not actually explained
-The test is intended to be more protective
-Is it just an extension of Bad Tendency Test or is it something new?
-It’s a question of proximity and degree!
-The test standards change depending on times of war or times of peace, certain things said in peacetime might not fly in wartime…AMBIGUOUS
-Held: Guilty for violating the act
CLEAR AND PRESENT DANGER TEST:
Whether the words used in the particular circumstance will bring about a particular clear and present danger of evils Congress has the right to prevent
*Considering Shaffer, SCHENCK, and Masses
-J. HAND’s mere advocacy of ideas and express incitement theory:
-Under-protective of free speech?
-Over-protective of the clever inciter?
-One who incites without explicit words of incitement
-Over-protective of the dangerous speaker?
-People outside Monsanto yelling, “Drug makers are baby killers!”
***Masses WAS REVERSED ON APPEAL AND J. HAND ABANDONED OPINION!
DISSENTING TRADITION
DEBS (29)
-Debs gave anti-war speech, said he could not openly say what he wanted, but that he was proud of those who dodged the draft (allegedly violating Espionage Act)
-It was clear that his language, though not explicit, was to obstruct the draft
-His intent was to obstruct the draft and would not have given his speech minus this intent
-However, J. HOLMES: SCHENCK disposed of this F.A. claim: not guilty because words, as their natural tendency and reasonably probable effect did not obstruct the recruiting service
-Held: Not Guilty; unanimous court felt praising socialism and express admiration for draft-dodgers is not in violation of the F.A.
-J. HOLMES makes no reference to the Clear and Present Danger Test
-WTF?!?!?!
ABRAMS (30)
-Group of Russian immigrants, self-proclaimed anarchists/socialists believing U.S. was trying to crush Russian proletariat revolution,publishedmaterials for the purpose of obstructing the war
-Held: Conviction upheld, relying on SCHENCK
-Majority: the judiciary constructed an intent for Abrams
-Where intent is absent the judiciary can construct the reasonable intentions present
-DISSENT: J. HOLMES: Abrams is a silly man, had no intent to disrupt anything
-***Clear and Present Danger Test should be used!!! (The test emerges here!!!)
C.P.D. TEST:
1. Must be imminent danger present
2. Specific intent for this danger must be present
-Rationale:
-Relies on the MARKETPLACE OF IDEAS rationale that in the marketplace various ideas purport to be the truth and fight it out, then truth ends up being something different than what we thought it was..flat earth?
-Speech should protected unless there is a “clear and present emergency”
-Broad protection of speech marked off easing J.HAND’s worry that the gov’t would be able to restrict any agitated speech that can be shown to create seditious tempers
-Test designed to reduce gov’t’s ability to suppress expression because it disapproves of its content
-C.P.D. TEST CONSIDERED HIGHLY SPEECH PROTECTIVE!!!
GITLOW (35)
-Gitlow was convicted of Criminal Anarchy crimes. Published extreme left-wing Marxist revolutionary materialencouraging overthrow of the gov’t(violated a criminal anarchy law)
-Held: Conviction upheld
-It is right to restrict speech in order to prevent the harm that could be caused by this overthrow
-This manifesto is a direct incitement
-Extinguish the sparks before they start a blaze!
-DISSENT: J. HOLMES: applied Clear and Present Danger Test to show that subversive advocacy is not present- not going to happen immediately!
-Majority was overbroad!
-Only difference betw a theory and incitement is the speaker’s enthusiasm for the result
-Every idea is an incitement offers itself for belief and if believed is acted upon
-Futile and too remote to regulate this
***Four categories of speech measuring: “Present”
1. Criticizing Gov’t
2. Law breaking may be necessary
3. Law breaking may be necessary in the future
4. Law breaking is necessary NOW
Gitlow is #3, only #4 should be barred!!!
WHITNEY (41)
-Moderate socialist convicted of criminal syndicalism statute for extreme left wing’s call for uprising
-Held: Was a proper exercise of police power, gov’t has the power to prevent criminal syndicates which are inherently evil and dangerous
-J. BRANDEIS (HOLMES) CONCURRING: Applies Clear and Present Danger Testto hold that she should be convicted
a. CLEAR: incitement cannot be punished unless the resulting harm is serious
b. PRESENT: express advocacy cannot be punished unless it rises to the level of incitement (category #4 – call to arms now!)
c. RATIONALE FOR FREE SPEECH: self-governance
-J.HOLMES: Marketplace/Search for Truth
-Search for the truth necessary to our fundamental rights, must not suppress this search
-Best reason to allow speech in the market place of ideas is to allow people to discover what is FALSE
d. DEFERENCE: courts shouldn’t defer to economic rights and not defer to fundamental rights (anti- J.LOCHNER)
-With Criminal Syndicates there is a substantial threat to the gov’t, these Criminal Syndicates may be punished when they threaten the gov’t
-States are allowed broad powers to fight violence, although the threat of violence alone is not enough to suppress speech
-There must be reasonable ground for the suppression
-Use Clear and Present Danger Test
***J. HOLMES v. J. BRANDEIS
-J.HOLMES: Pro Free trade in ideas
J. BRANDEIS: Pro Development of faculties and the deliberative process, and suggests that public discussion is a political duty, and that the greatest menace to personal liberty is an inert people
-J. MIECKELJOHN owes much to J. BRANDEIS
-Post WHITNEY, court reversed several cases involving convictions of subversive advocacy
-Employed Clear and Present Danger test for 25 yearsfrom WHITNEY until DENNIS
-Still had a problem with subversive advocacy issues however
-Communist Cases
COURTS GIVE MORE WEIGHT TO THE FIRST AMENDMENT (POST WHITNEY)
-Capitalism is generally on the decline though it still remains important…as 20th century goes on, capitalism becomes viewed as less important
-Modernism and democratic theory focus more on speech, expression and human fulfillment, less on finance
-POLITICAL RIGHTS BECOME VIEWED AS MORE IMPORTANT!
J. LOCHNER (1905): Old fashioned view of how courts should approach rights claims
-Policy of Laissez Faire Jurisprudence
-Legislature must be neutral;
-It cannot discriminate against one class of citizens for the benefit of another like a minimum wage law
-Taking profit from one group extending it to another
Between Whitney and 1937, INVALIDATION of Three Cases
FISKE (Supp. 2)
-Court invalidates conviction for incitement to overthrow gov’t on lack of evidence that organization actually wants to overthrow
HERNDON
-Court invalidates conviction of soliciting members for communist party on grounds that there wasn’t sufficient evidence to convict him of incitement for insurrection
DEJONGE
-Court invalidates conviction of assisting in conduct of meeting called by communist party
-Court distinguishes meeting where there is incitement to revolt (and being a member) and assisting in a meeting where there is no evidence about what it was about
-The question is the purpose of the meeting!
-Are these cases consistent with SCHENCK, WHITNEY, etc…
-These cases are the mere application of established principle
-There just wasn’t enough evidence in FISKE and HERNDON
-In DEJONGE, the court didn’t know what the meeting was about
-The court is facially DEFERRING to WHITNEY, but it is really just taking a closer look a the cases and the record
-Shift in the court’s attitude! (1927-1937)
-MALLEABILITY OF OLD DOCTRINE
-There is some indeterminacy in the old doctrine
-You can manipulate it to reach different results!!!
-CPD TestBased on the CONTEXT and GUESSES about future harm
STROMBERG (Supp. 2)
-State statues forbidding exhibition of red flag as symbol of opposition to the gov’t. Red flag was waived at communist children’s camp.
-Where a statute reaches to punish mere opposition to the gov’t w/o any wish to overthrow it, it is overbroad and must be invalidated
-FIRST SUP. CT. CASE STRIKING DOWN SOMETHING AS VIOLATING THE F.A.
CAROLENE PRODUCTS(Supp. 2)
-Economic Regulation gets more deference, less J. LOCHNER laissez faire attitude
-Rational basis review
-Court upholds Filled Milk Act
-Prohibits shipment of skim milk compounded w/ something other than milk fat
-J. STONE it talking about F.A. and citing F.A. cases
-Is going to treat F.A. rights more seriously!
1. There is a textual commitment in the Bill of Rights
2. Free speech rights are naturally tied to democratic political rights
3. Tied to racial groups
MODERN SUBVERSIVE ADVOCACY – BLACK LETTER LAW
THE COMMUNIST CASES (1958- )
DENNIS (48) [Category 3 Speech]
-P’s are leaders of Communist party engaged in assembling and teaching members principles of communism
-P’s are advocating to overthrow gov’t by force
-Violated Smith Act (subversive advocacy)
-Was a highly organized with rigidly disciplined members ready to heed their leaders’ calls
-Held: Conviction upheld because they WATERED DOWN CLEAR AND PRESENT DANGER TEST(could also be a MODIFIEDBAD TENDANCY TEST)
-J. HAND’s formulation adopted:
-The gravity of the evil less it improbability must be greater than the harm caused by invasion of free speech
-No need to wait until overthrow occurs to censor activity, still “imminent”
-No need to fight fair!
-Highly deferential to Congress
-CONCURRENCE: J. JACKSON: Severity of harm warrants deference to Congress; there is a national conspiracy to overthrow gov’t present
-DISSENT: J. BLACK: We must repudiate the CPD Test because it changes with time and is impossible to determine what is truly a clear and present danger
-DISSENT: J. DOUGLAS:Should have considered the case on evidentiary grounds because overthrow of the gov’t was NOT imminent!
-Commies are “miserable merchants of unwanted ideas”
-In the market place of ideas, their ideas will get dominated by democracy
-Free speech is what defeats Communism
-Similar to J. BRANDEIS CONCURRENCE in WHITNEY
-Different from HOLMES-BRANDEIS Clear & Present Danger Test
-More deferential to Congress
-CONCURRENCE: J. FRANKFURTER: Defer to Congressional findings on dangers of Communism
-No imminence
Subversives go to jail, but LAW BECOMES MORE LIBERAL
-Court rejects GITLOW’s extreme deference to legislature
-Court agrees that express advocacy of legal action is protected to some extent
-Court agrees that WHITNEY and GITLOW are no longer good law
-Court suggests that express advocacy is entitled to less protection than other speech (inciting people to action gets less protection)
-Majority of court adopts some version of CPD Test
-More speech protective than bad tendency test
BRANDENBURG(59) (1961 MODERN)
-Leader of the KKK convicted for his message that white separatists will have their “revenge” on gov’t for embracing Blacks and Jews
-Convicted under Ohio Criminal Syndicalism statute
-Held: Per Curiam: Conviction was wrong
-NEW TEST: Subversive Advocacy must be directed to INCITING OR PRODUCING IMMINENT LAWLESS ACTIVITY THAT IS LIKELY TO PRODUCE SUCH ACTION
-CONCURRING:
-J. BLACK: CPD is dead!
-DENNIS only cited showing GITLOW and WHITNEY are overturned
-J. DOUGLAS: CPD is dead because its DENNIS version was:
1. Too malleable
2. Overregulated speech
SUBVERSIVE ADVOACY – FOUR TESTS
1. Bad Tendency – If the incited activity has the tendency to lead a substantial evil, the gov’t may regulate incitement
2. Holmes-BrandeisClear & Present Danger–Must be serious (clear) and imminent (present) danger to regulate the advocacy of speech
-CATEGORY FOUR SPEECH ONLY
3. Dennis Clear & Present Danger - The gravity of the harm, discounted by its improbability, must be greater than the harm of the invading speech
-ADOPTS J. HAND’S FORMULATION
4. Brandenburg – Must be (1) express advocacy of violation of the law, (2) that calls for immediate action, and (3) is likely to occur
-SERIOUSNESS IGNORED, but maybe under factor 1
THREATS AND PROVOCATION
THREATS
BRIDGES (66)
-Two cases here
-(1) Union president threatened to cripple the West Coast port with a strike if the Secretary of Labor enforced a new law
-(2) LA Times Editorial guilty of contempt when it said it would be a big mistake for elected judges to let off two “union goons”
-Held: Convictions overturned under J.BLACK’SCPD TEST
-The substantial evil must be EXTREMELY SERIOUS and the degree of IMMINENCE EXTREMELY HIGH before utterances are punishable
-Defers greatly to the right of free speech
-J.BLACK: convictions may not be upheld because promoting censorship does not make the judiciary more respected
-Enforced silence would probably create resentment
-Also it’s completely legal for Bridges to start a strike
-Judge must have had this in his mind when he convicted him
-Arguments for unfair administration of justice:
1. Judges could be influenced by public opinion
2. Impartiality negatively effected
3. On the other hand, LA Times threatened future criticism
-Judges know they will be criticized
WATTS (69)
-Portential draftee not convicted for saying, if drafted he would go after LBJ
-Speech is only a hyperbole (political hyperbole here) if CPD test is satisfied
-Here speech was not likely nor imminent
-Not clear or present!
PROVOCATION
CANTWELL(Supp. 3)
-Jehovah’s Witness was convicted for selling material on Cassius Street without a license and for disturbing the peace by playing records (which pronounce Catholics “enemies” and where presently in a heavily Roman Catholic area)
-Held: Overturned because the regulation was OVERBROAD
-Speech is too important to hinge on a bureaucrat’s ability to arbitrarily regulate speech via a license
-Requiring a license sounds like a PRIOR RESTRAINT!!!
-Here it was a prior restraint!
-Where there is no clear and present danger of riot, disorder, or interference w/ traffic, and merely an effort to persuade others, the State does not have the power to prevent such speech
-Court rejects GITLOW deference to legislators
-Statute must be narrowly drawn
-Links religious freedom to democracy – self governance depends on acceptance of disagreement
-Free exercise case (or more broadly as a F.A. case) – polite people may persuade people of the error of their ways even if those beliefs are deeply held, like religion
-The F.A. may not limit speech purely because it is deemed wrong or offensive
-F.A. protects no more against majority oppression than against runaway gov’t
-This is not a “fighting words” case – Cantwell was being polite
-Overbreadth: regulation sweeps too broadly
-Lays down doctrinal elements
-Prior restraint
-Clear and present danger
-Fighting words
-Preferred freedoms doctrine
-bifurcated review/CAROLENE PRODUCTS
-Time, place & manner restrictions
-Bastion of privacy vs. free speech
-Right not to listen
-Free exercise jurisprudence – act v. exercise
FEINER (76)
-Man convicted for breach of peace during a protest, calling blacks to rise up against whites; made derogatory statements concerning President, American Legion, Mayor of Syracuse
-Policeman asked him to stop three times
-Held: Conviction upheld under CLEAR AND PRESENT DANGER TEST
-WATERED-DOWN version of test: when clear and present danger of immediate threat to public safety appears, the State may regulate or prevent the speech
-DISSENT: If a police officer is silencing speech, it is the police officer who is violating the law, not the speaker!
-It is one thing to say that the police cannot be used as an instrument of oppression, it is another to say when as here, THE SPEAKER PASSES THE BOUNDS OF ARGUMENT OR PERSUASION AND UNDERTAKES INCITEMENT TO RIOT!!!