Con Law II Stone
Winter 2002
I. General
A. Intent of framers in drafting First Amendment (FA)
1. Restrict Use of Prior Restraint (Licensing)
a) English tradition: required approval prior to publication
b) Although abolished by Eng. in 1964, framers sought to ensure problem would never arise in US
2. Keep unprotected certain types of speech: (obscenity, blasphemy, defamation)
a) Consistent w/ laws of most states non protecting such speech
3. Seditious libel (criminalizing criticism of G): framers view is unclear
a) Unprotected: b/c it was enforced at time FA was drafted; consistent w/ state laws
b) Protected: doctrine was facing great opposition at time; drafted to end ban of this speech
B. Reasons for Protecting Freedom of Speech (FOS)
1. FOS is inherently a good thing that we must protect: ensures individual autonomy, privacy, natural rights (like religion)
a) Designed for expresser of info
2. Search for truth: Best policy emerges when all opinions are expressed (the more info, the better)
a) Designed for user of info
b) But, there are instances in which we restrict info so that we can make best decision (exclusion of evidence to jury, e.g.)
(1) But, G has other powers whereas our casebook editors, who choose content of book, do not
(a) Inherent distrust of G; monolithic power
(2) Irony: we don’t trust G (elected by people) to make these rules, yet we do all this in name of self-governance
3. Consistent w/ our idea of democracy
a) Regardless of first two reasons, we still want people to have info about decisions to protecting self-governing system
b) To deny this, would distort the very idea of self-governance
II. Advocacy of Unlawful Conduct
A. Background
1. In response to strong opposition to US involvement in WWI, Congress enacted Espionage Act to quell dissent
a) Bad Tendency Doctrine: (Shaffer, 9th Cir. (1919)): FOS does not include right to oppose war (universal view of federal courts at time)
(1) Natural and foreseeable consequence of speech (book written in opposition to war) was to encourage draft dodging
b) Constructive Intent Principle
(1) Intent to cause bad consequences is irrelevant (like speeding, guilty whether or not you hit someone)
B. Masses Publishing Co. v. Patten (S.D.N.Y; Hand, 1917, p.1007)
1. P was granted injunction a/g postmaster who refused to deliver mail that violated Espionage Act (poem extolling draft dodgers)
2. Hand did not rely on FA analysis; rather, he interpreted statute very narrowly (useful to view this as FA analysis b/c he was clearly influenced by FA fears
3. Surely C did not want to suppress all criticism of G: can only prohibit express incitement
4. Takeaways
a) Express incitement is necessary; intent is irrelevant (rejection of bad tendency test)
b) Of three approaches (intent, danger, and value), Hand chooses value despite consequences
(1) Under bad tendency doctrine, PM should have won since readers would have been more likely to resist draft
(2) Hand is most concerned a/b speaker w/o bad intent and no express incitement: Intent is difficult to ascertain
(a) Doesn’t want to chill speech of well-intended speaker and is willing to protect ill-intended speech w/o express incitement in order to do so
c) Hand begins to establish that FOS is not unitary: certain “speech” is not protected by FA
5. Rationale for making intent irrelevant (under Hand, no punishment for wise speaker w/ intent to incite but who does expressly incite)
(1) Knows juries, judges will not be sympathetic to speakers w/ unpopular messages
C. Schenck (Holmes, 1919, p. 1009)
1. Facts
a) SC upheld conviction for pamphlet that vehemently criticized war and draft
2. FOS is not absolute (can’t falsely yell “Fire” in crowded theater)
3. Test: Speech that presents clear and present danger (CPD) can be prohibited (but, see Debs)
a) Clear: Some probability that danger will become reality
b) Present: Danger must be temporally connected w/ speaker (relevant imminence, restriction of FOS should be last resort)
c) Danger that C had right to prevent
(1) Gravity of harm: relevant factor; 3 Ways of analyzing
a) Minimum standard: threatened harm must be above certain threshold; bright-line rule but might be too restrictive in some cases
b) Sliding/Variable Scale: C and P are variable: ensures fairness in each case, but presents admin, line-drawing problems; no guideline for speakers
c) Gravity is irrelevant
4. Takeaways:
a) Holmes focuses on harm, as opposed to value (Hand)
b) CPD test: did not lead to protection of speech
5. Stone: Holmes’ starting point (fire in crowded theater) naturally leads to CPD test
a) If there is a fire, same number of people will be trampled (but many will be saved)
b) Protection of FOS should focus on value, not danger, as in Hand’s test
D. Frohwerk (1919, Holmes, p. 1013)
1. Court unanimously upholds conviction under Espionage Act despite lack of express incitement
2. Takeaways:
a) Holmes doesn’t mention CPD
b) New test: where a “little breath would be enough to kindle a flame,” then conviction OK
c) Hand would have reversed here (and in Schenck)
E. Debs (1919, Holmes, p. 1014)
1. Court unanimously upheld conviction of prominent member of socialist party
2. No mention of CPD, retreats to natural tendency and probable effect-like test
3. Takeaways
a) A/f Debs and Frohwerk, it seems as if CPD test is dead
(1) If Holmes had wanted different standard in Schenck, they would have remanded, rather than affirmed, conviction there and here
(2) Thus, debate exists what Schenck really stood for
b) Court seems to be trying to ratify old standards
F. Abrams (1919, p. 1014)
1. Court (unsurprisingly) upheld convictions of Russian and Jewish anarchists for distributing leaflets (sympathetic to Russians) which called for general strike to protest US sending troops into Russia
2. Dissent (Holmes and Brandeis): gives birth to judicial tolerance of FOS
a) Foolishly, Holmes complicates matters by claiming his previous opinions were rightly decided
b) New test: Present danger of immediate evil or an intent to bring it about
(1) Applied to this case
(a) No CPD here (first time any justice makes this claim)
(b) Holmes concludes requisite intent was lacking by narrowly construing statute such that D didn’t violate it (no intent to hinder war effort) even though successful Ds would have hindered war effort
(i) Wants D to get off, but his test doesn’t really allow him to
c) Valuable general commentary on FOS (very valuable): last two paragraphs of dissent
(1) Temptation to suppress FOS is great and complex
(2) FOS is key part of our democracy
(3) Marketplace of ideas
(4) Best test of truth
3. Aftermath: in three cases following Abrams, court upheld conviction 7 to 2
G. Gitlow v. NY (1925, Sanford, p. 1019): First sustained effort by majority to take FOS seriously; rejected notion that G can regulate ideas simply b/c it thinks they are bad
1. Facts
a) D published 34 page left-wing manifesto, 14 pages which advocated upcoming revolution and necessity of strikes to bring it about; no actual incitement
b) Convicted under NY statute that prohibited teaching of violent overthrow, but not if academic treatise or mere prediction (required express advocacy)
2. Court upheld D’s conviction for making speech by essentially embracing seditious libel
3. 3 New Issues Raised by Court/Case
a) Does FA apply to states?
(1) Yes; FOS is liberty protected by 14th Amendment;
(2) Court, therefore, greatly expanded scope of FA protection
(a) While only dictum, this claim shows strides of court re: FOS and impact of Holmes’ dissents
b) Can speech advocating illegal conduct in indefinite future be punished?
(1) Yes; issue is whether natural tendency and probable effect of speech would bring about substantive evil
(2) Holmes (Dissenting),
(a) No intent to produce CPD: intent was for future danger
(b) Here, no CPD; thus, no conviction
(3) Hand would allow conviction: not concerned w/ danger, but rather w/ value of speech
c) What level of judicial review is appropriate when statute prohibits speech, not acts?
(1) Sanford (majority): 2 Types of cases
(a) Those like Schenck where G has punished certain acts, not speech
(i) No legislative judgments to which courts should defer b/c C possibly did not intend to punish certain speech
(b) Those like Gitlow, where legis. has suppressed speech
(i) Deference to legislature as long as rational judgment; thus, no need to analyze whether CPD
(c) Takeaway: was probably discussing only low-value speech (wouldn’t defer to AL if it prohibited criticism of practice of segregation)
(2) Possible solution:
(a) Give deference when no reason to distrust G
(b) When reason to distrust (G banning critical speech), court should scrutinize cases closely
(3) Holmes: must be CPD; no deference to legislature
(4) Brandeis (Whitney): Legis. cannot decide constitutionality by itself
4. Challenges to Holmes (by Sanford)
a) This statute, unlike others, focused on expressed advocacy of violation of law (advocacy = direct incitement)
(1) If purpose of FA is to ensure that political system will act in certain way, why should we protect speech that will undermine political system/G?
(2) Holmes: no answer; rather “every idea incites”
b) What is CPD test?
(1) Good question b/c Holmes maintains that Frohwerk, Debs were correct
c) Why must we wait until there is a C&P danger that state will be violently overthrown (might be too late)?
(1) Holmes: confident that loathsome ideas will not predominate
H. Whitney v. CA (1927, Sanford, p. 1025):
1. Facts: D was prosecuted under statute that made it crime to assist in criminal syndicalism; she admitted being part of communist labor party; jury found, despite her showing that she disapproved of party’s beliefs, she was guilty b/c she remained at meeting/convention
2. First case involving regulation of D’s conduct, not speech
3. Sanford (majority)
a) Knowledge of unlawful conduct of group is both necessary and sufficient
(1) Support of group/party is difficult to prove
b) Speech of organization and her association in it were punishable under Gitlow
4. Brandeis (famous concurrence)
a) Proper std. of review: Speech that would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent (citing Schenck)
(1) Relies on Holmes in Abrams and Gitlow
(2) Treats test as settled, when it was actually dictum at best
b) 5 Basic assumptions re: framers’ beliefs
(1) Final end of the state was to make men free to develop their faculties
(2) FOS was/is indispensable for the discovery of political truth (necessary adjunct to self-governing society)
(3) Eschewed silence coerced by law
(4) Counter speech: best remedy for evil counsels is good counsel
(5) Did not exalt order at expense of liberty; willing to take risk to entrust people w/ liberty
c) Adds important elements to CPD test
(1) Imminence: no time for counter-speech (“Fire” in crowded theatre)
(2) Evil itself is substantial
(3) Both incitement and CPD are necessary for punishment
(a) For the first time, concepts of Hand (express advocacy) and Holmes (CPD) are brought together
d) Fear of injury cannot justify suppression of FOS
(1) Every denunciation of existing law tends to increase probability that there will be violation of it
(2) Bad tendency is insufficient: express advocacy OK unless it expressly incites and will reasonably be acted upon
5. Court eventually adopted three prong test for punishment of association
a) Knowledge of illegal acts
b) Specific intent to support those illegal acts
c) Active membership in organization
I. Dennis (1951, Vinson, p. 1031)
1. Facts:
a) D convicted of violating Smith Act; evidence showed that most he had done was to read communist literature (didn’t advocate overthrow of G)
b) Convicted of conspiring to advocate violent overthrow of G, not conspiring to overthrow
c) Backdrop: much anxiety about cold war, communism
2. Majority (Vinson)
a) Implies this would be diff. case if D only engaged in political discussion, rather than advocating illegal act (like Sanford’s opinions)
b) Adopts CPD test across the board
(1) Appropriate std. would have been CPD only if this were a non-speech statute
(2) But, Smith Act prohibits speech, so this should not be the test acc/to Gitlow and Whitney
(3) But, Gitlow and Whitney are no longer good law
c) CPD applied to this case
(1) Possible evil here (violent overthrow of G) is great
(2) Adopts Hand test (from circuit court)
(a) Whether gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger
(b) Tough to implement
(3) G should not have to wait until it is overthrown to put down armed rebellion (Sanford-like)
(a) Counter: G could introduce counter-speech or could convict for other crimes (stockpiling guns)
d) Danger must no longer be clear and imminent
(1) Dilutes protection of speech given by Holmes, Brandies
(2) Hand test allows gravity of harm to dilute imminence requirement
3. Frankfurter (Concurrence)
a) Wants balancing test: loosely decided
(1) Last attempt by a justice to use balancing standard for FOS cases: too much subjectivity, unpredictability, ambiguity; court prefers rule-based approach
b) Deference to legislature, which acted reasonably in this case
4. Dissent (Black, Douglas)
a) Wants CPD as formulated by Brandies in Whitney
b) Black’s prediction that courts will restore FA liberties to high preferred place has come true
5. General takeaways
a) 7 of 8 reject Gitlow (all but Frankfurter)
(1) Courts will not defer to legislature any more
b) 7 of 8: even express advocacy of violence is protected to at least some degree (Jackson)
c) 6 of 8: express advocacy of unlawful act is entitled to less protection (dissenters)
d) Clear majority of court adopted some version of CPD
(1) Even if diluted, still more protective of speech than bad tendency doctrine
e) Court was still yet to reverse a conviction despite increasing protection given to speech