Speech, Press, and the Constitution

Speech, Press, and the Constitution

Professor Richards, Spring 2006

History, Theory, and Procedure of 1st Amendment

Theories that Support Freedom of Speech
Historical Perspective
Constitution writers concern with history of licensing and its replacement, punishment for seditious libel (bringing govt. into disrepute)
Bill of Rights not included in Constitution because separation of powers and federalism were thought to be sufficient checks on government power
Constitution ratified only b/c Bill of Rights would be included
Language of the Constitution
“Congress” refers to all government
“No law” has never been interpreted to mean no law whatsoever
“Of Speech or of the press” includes dancing, pictures, and act
Search for Truth Rationale - Need to allow all perspectives in search for truth
Holmes in Abrams – the search for truth is the very core of free society
Marketplace of ideas is the essential metaphor that guides search for truth
Usually we regulate where there is market failure, potentially problematic if we are trying to create inquiry free from government interference
Truth may not be absolute, if there are multiple true ideas search for truth may not be a proper goal
If truth is the only goal where does nonpolitical speech fit
Self-governance Rationale – protect free expression b/c it allows people to better govern selves
Output focused view: Meiklejohn (p11)
Metaphor: Government at a town meeting
Self-governing citizens need to make the best decisions and need the best information; regulation of speech cuts off supply of information
Major problem is that this idea rests on the distinction between public speech and private speech; doesn’t protect literature, arts, other expressions
Response: Self-govt only exists to extent that voters are educated
Input focused view: Robert Post participatory theory says speech is valuable b/c acting in governing ourselves defines us as individuals (many factions define selves in this way)
Self fulfillment and autonomy rationale (Post’s theory w/o governance - flawed)
Only by reading, speaking, and arts can we have fulfilled creative individuals
Flaws: Gardening, sex, etc. might fulfill, but these don’t go to individual rights
Criticism: Just sophistry to get porn and nude dancing under 1st amendment
Minor theories
Checking valve: free speech keeps government within the limits of its authority
Safety valve: People can persuade or at least vent rather than revolution and violence
Tolerance: Shapes society’s intellectual compass and area of law for self-restraint
Subversive Advocacy
The English Tradition
Three forms of restraint: Licensing, Constructive Treason and Seditious Libel
Only Seditious libel relevant to America
Blackstone (1769): English common law only outlawed prior restraint, can punish later
Sedition Act and Patterson case in US adopted this tradition
Zenger trial in colonies – truth became symbolic defense to seditious libel
England – outlawed criticism of govt. even if truthful
Early Cases – Bad tendency plus the impact of Zenger
Sedition Act of 1798 upheld, but truth was defense and lapsed w/ pardons 1800
Patterson v. CO (1907): Holmes upholds conviction of news editor who commented on pending CO SCt cases
Main purpose of free speech is to prevent prior restraints
Bad tendency test: Govt has power to punish speech that has any tendency, however remote, to bring about violations of the law
Espionage Act – crime to obstruct success of the army or recruiting process
Shaffer (1919) – Conviction upheld for mailing book saying war is immoral even w/o intent to harm war effort
Masses (SDNY 1917) – As district judge, Hand draws line between expression of ideas and express incitement and says can’t stop mailing of revolutionary ideas, reversed above
Doesn’t reject bad tendency, construes law based on tradition of free expression
Is Hand overprotective of the clever speaker?
Schenck (1919) – Holmes upholdsconviction for publishing opinion that draft was worse than conviction, applying bad tendency test using clear and present danger language
Holmes assumes that first amendment applies to more than prior restraint for the sake of argument; this is read as law by future cases
Clear and present danger test: Whether speech brings clear and present evil that Congress has a right to prevent is question in every case
Later construed as different test, but really just restating bad tendency
Holmes also writes opinions upholding two convictions of individuals critical of the draft in Frohwerk and Debs
Abrams (1919) – Conviction for protesting involvement in revolutionary Russia upheld
Holmes’ Dissent: arguably most important text in American free speech
Bad tendency is correct test in war, but clear and present danger is correct test in this case (specifically says previous cases were right)
Only existence of clear and present danger makes past convictions OK
Clear and Present danger test (as interpreted by Holmes): Can convict if
Clear and present danger of immediate harm
Not here b/c surrepticious minor publication
OR specific intent to create such a danger
Nothing urged against war in Germany to fit Espionage Act
New idea of letting the marketplace evaluate truth or falsity of idea
Persecution of opinions is logical way to keep power if you know you are right, but men have learned that the ultimate goal of truth is better reached through the free trade of ideas – p32
Best test of truth is power to get accepted by competition in market
Holmes may be right, but power dynamics often determine “truth”
State laws prohibiting types of speech
Gitlow (1925) – Conviction upheld for publishing Manifesto of Socialist calling for proletariat to mob government and seize control
Factual Differences
Assumes that 1st Amend w/in “liberty” protection of 14th amendment
This allows reach to NY criminal anarchy statute
No call to arms now, but eventual need to overthrow the government
Speech is outside of wartime
Argue: Wartime needs more civil liberties or we have lost
Argue: Need to win war takes precedent, then back to normal
Categories of Speech from innocuous to very critical of govt.
Criticize government policy (like Shenck)
Law breaking may be necessary to achieve political goals
Urges listener to accept proposition that we should break law sometime in the future
Lawbreaking is necessary now (Dec. of Independence)
Holmes Dissent
Line should be: govt. can only regulate when lawbreaking imminent
Teeth into the immediacy element of Holmes dissenting tradition
The issue of deference
State determined that speech was bad rather than outlawing an act and convicting for speech that threatens to cause act
Majority defers to determination
Holmes implicitly rejects deference, Brandeis considers in Whitney
Today, unquestionably no deference to legislature
Whitney (1927) – Conviction for being part of socialist revolutionary group upheld
Defer to state unless arbitrary use of police power, ass’n criminally punishable
Brandeis Dissent: w/ Holmes in intellectual project advocating free speech
Imminence – express advocacy cannot be punished unless rises to level of imminent lawbreaking
Seriousness – must be reasonable ground to fear serious harm
Rationale for free speech
Americans are self-governing which requires deliberation -Meiklejohn
Holmes – marketplace is end in itself, Brandeis – marketplace is element of self-governance
Deference and the Beginnings of Bifurcated Review
Deference should be minimal b/c power of court to strike down personal rights should be no less than property rights
Lockner – protects property rights, strikes down restrictions
If we scrutinize property restrictions, should also scrutinize rights fundamental to our government
Between Whitney and Dennis Court invalidates 3 subversive advocacy convictions
Fiske (1927) – invalidates KS criminal syndicalism conviction b/c only evidence was preamble of group – no evidence group wanted to overthrow govt.
Herndon (1937) – invalidates conviction b/c evidence insufficient to show that group advocated forcible subversion, membership recruitment not enough
DeJonge (1937) – Invalidates criminalization of Communist Party; invalid law as applied to non-member when no evidence about what meeting entailed
Each applies Gitlow-Whitney, but defendants don’t have necessary culpability
Taking a closer look: Cases analyze evidence to make sure people aren’t imprisoned just for being associated with the wrong people
Shows change in understanding and the malleability of the doctrine
Stromberg (1931) – court invalidates conviction for raising red flag at children’s camp, because of overbreadth. Out of line with cases of the time
Carolene Products (1938) – Economic regulation gets rational basis review, but narrower presumption of constitutionality w/ textual commitment to rights such as Bill of Rights
Dennis (1951) – leaders of Communist party in US convicted of advocacy and conspiring to overthrow the government with a plurality opinion
People believed that struggle between capitalism and communism was coming and the movement toward change was abandoned for conviction in HUGE case
Vinson’s plurality opinion
Incitement to action punishable under clear and present danger test
Court considers gravity of evil discounted by probability
Invasion of speech justified if necessary to avoid danger
Imminence and non-deference from Holmes/Brandeis not present
Historically revolution wasn’t imminent, but Vinson says that revolution is so bad we don’t wait until eve of destruction
Court defers to Congress finding that communist party is real danger
Frankfurter’s super deference in concurrence rejects bifurcated review
Douglass’ Dissent
The enemy is the one who burns books, and we are doing the same thing by stopping the teaching of the four books used by communists
Free speech is what will defeat the doctrine
Communist books not purchased in marketplace of ideas
State of the law after Dennis
Possibly bad tendency for really dangerous actions
Clear and present danger is either very malleable allowing judges to reachdecision they like, or its same as bad tendency
Subversives go to jail but law gets more protective – Justices opinions
7/8 reject Gitlow’s extreme deference (even if not w/ result), give some protection to express advocacy (balancing), and agree that Gitlow and Whitney are not the law
6/8 express advocacy is due less protection than other speech
Majority adopts some form of clear and present danger
The Brandenburg formulation
Brandenburg v. Ohio (1969) – KKK convicted of advocating crime on TV reversed
Per Curium Opinion
Whitney has been thoroughly discredited
Constitutional guarantees of free speech and press don’t permit a State to proscribe criminal advocacy except where such advocacy is directed to inciting 1) imminent lawless action and 2)is likelyto produce such action
Most speech protective test that has been developed
Douglass concurrence – Clear and present danger test should be out altogether
Clear and present danger punishes loud and silly threats
It is TOO MALLEABLE for judges making it a political trial
Black – makes clear that he believes clear and present danger should be out even if the court positively cites Dennis
State of the Law after Brandenburg: In order to curtail speech
There must be advocacy of law violation
The violation must be immediate
Violation must be likely
Restatement of the tests for dangerous ideas: Imminent v. Future Danger, Advocacy v. Mere Ideas
Bad tendency – everything is punishable, now matter how remote or trivial
Holmes and Brandeis would punish if danger is imminent. Even mere ideas punishable b/c there is no time for counterspeech
Dennis would punish express advocacy whether imminent or not under C&P Danger
Brandenburg only punishes if imminent and express advocacy AND lawbreaking likely
Seriousness is not part of Brandenburg, but Dennis cited favorably
Since Brandenburg there have been no criminal syndicalism cases, but there have been civil suits for damages when people copy movies
Usually likeliness established b/c it already happened
Usually immediately after the movie
Turns on whether there was advocacy of law violation
Cynical view: The court always grants just enough protection to seem better than the past, but not enough to cover the case at hand (Stone)
Threats and Provocation ( intro to concepts of low value speech)
Threats
Bridges v. CA (1941) – Conviction for threatening to cripple west coast w/ strike if court decision enforced against him is reversed using Clear and Present Danger
Black uses C&P danger test (later condemns for being malleable)
Substantive evil must be extremely serious and degree of imminence extremely high before utterances can be punished
Arguments that speech should be punishable
Respect for role of judiciary: censorship is no way to earn respect
Influence on judicial decisions: Taking away impartiality is a serious concern, but judge knows he will be criticized – no influence
Frankfurter argues for punishment if there is pressure on judiciary – like bad tendency
Watts (1969) – Conviction for threatening President reversed b/c saying that first man he wants to shoot is LBJ is hyperbole
LAW: True threats are excluded from 1st Amendment protection
Virginia v. Black defined true threats: Communicates a serious expression of an intent to commit an act of unlawful violence to another (or group)
Line drawing is difficult and many threats are protected: Public threats on matters of public concern tend to get protection
When we place things outside of the 1st Amendment court must be careful not to put important things outside of the protection
Provocation: Speech that Provokes Hostile Reaction
Cantwell v. Conn. (1940) – Conviction of Jehovah’s Witnesses playing phonograph for statute prohibiting solicitation of funds and for common law breach of peace reversed
Requirement of permit to solicit is rejected under free exercise of religion clause- very unusual, could have been eliminated as prior restraint
Common law breach of peace application is overbroad b/c phonograph is peacefully saying that Pope is an agent of Satan
Cites Thornhill which protects labor picketing against AL statute because statute would stop even peaceful quiet picketing
Statute must be narrowly drawn to not interfere with core speech
While record may be rude, polite people can persuade people of the error their ways even if based on their most deeply held beliefs
Terminello v. Chicago (1949) – Conviction for giving speech that stirs protesting public to anger reversed under C&P danger b/c can’t restrict speech b/c ideas offend audience
Feiner v. NY (1951) Court upholds conviction of Feiner when asked, told, and ordered to stop preaching before arrested - Not clear if arrested for C&P danger or breach of peace
Black argues that policeman is to blame, Feiner should have every right to speak
Law breaker is the person threatening violence
Skokie controversy: Court invalidates injunction of Nazi march in Jewish neighborhood
Should Nazi group should get as much protection as black civil rights group
Does protecting one make a judgment as to which idea is better
European approach – we have never been wrong in condemning hatred
Test for provocation is Clear and Present Danger, but last hostile audience came before Brandenburg in 1969
Fighting Words and Provocative Epithets
Chaplinsky v. NH (1942) – Conviction of JW for calling a police officer a damned racketeer and a fascist under statute prohibiting offensive language that could incite violence upheld b/c the language was fighting words
Fighting words are category of speech not protected under 1st Amendment
Not protected b/c they inflict injury merely by being said and tend to incite breach of peace
Fighting words are words that men of common intelligence would expect to incite breach of peace
Don’t know if C&P danger b/c we don’t know how the person provoked feels or acts
Gooding (1972) eviscerates this decision with facts very similar to Chaplinsky, suggesting that Chaplinsky’s words would be protected today
Suggests that Fighting words are extremely small category
Categorical balancing approach rather than case by case clear and present danger test
Definitional problem in that we don’t know what fits into this category
Fighting words are worthy of categorical exception b/c
Likely to provoke average person to assault which fails C&P danger
Doesn’t contribute to marketplace of ideas or self-governance
Verbal assault is just intended to injure, like physical assault
Fighting words today
Chaplinsky never overruled, always implicitly accept Chaplinsky in dicta
Today free speech doctrine is more robust, we expect more tolerance b/c of changing cultural norms – reject mid-century understanding of masculinity
Broader arguments
Many conventional ideas were once radical, we only progress by allowing them in market
Supported by argument that we should be taught how to be tolerant
Some ideas don’t contribute to debate, speech just intended to injure can be real offense that state can protect with tort law
If no speech injury what happens to intentional infliction of emotional distress
Difficult to extricate offensive components from those that offer something
Expression that Discloses Confidential Information
National Security: Pentagon Papers (1971) – Court rejects govt. application for injunction to stop NY Times and Wash Post from publishing policy papers about Vietnam war
Wiretapping cases currently don’t allow injunctions for this reason
Potential to stop publication of secrets w/o prior restraint
Criminal punishment for those who publish classified documents
Criminal punishment for those who leak information as govt. employees
Free speech rights of govt. employees limited b/c of need for internal government confidentiality
Privacy: Cox Comm. (1975) and Florida Star (1989) – Broadcaster cannot be held liable in damages for publishing rape victim’s name
Private truthful info lawfully obtained by press can’t be punished if newsworthy
Court defers to press interpretation of what is newsworthy
Reluctance to second guess due to chilling effect
Individuals need to rely on press for accurate public information
Bartnicki (2001) – wiretapping law can’t be applied to stop broadcast of intercepted phone call even if radio knew it was acquired illegally
Due Process: Nebraska Press v.