MC 401 Chapter 2 Chapter 2: The First Amendment

Why did plato and not socrates write everything socrates said and did?

The Meaning of Freedom

• the First Amendment is the foundation of nearly all laws that protect freedom of  speech and the press

• it was adopted to the Constitution in 1791 as part of the Bill of Rights I. Historical Development

• the concept of free expression has existed since the time of Socrates and Plato, but  it has only been in the past 400 years or so that the idea has been developed  further

• as printing technologies developed in the 16th and 17th centuries, the modern  history of freedom of the press also developed in England

• the freedom of speech and the press is more or less the absence of censorship or  control by the government

A. Freedom of the Press in England

What impact did the printing press have on the early modern west?

- shortly after the printing press was introduced to England, the British Crown  began to regulate its use

- the press made communication with large groups of people easier than ever  before and as a result gave considerable power to small groups and the  individual

• in other words, the power of the press posed a threat to diluting the power of  the government which in turn tried to restrict its use from (1476-1776)

- Seditious Libel: libeling the government; criticizing the government or  government officers (aka “sedition”) We also discuss several other topics like What is the attitude accessibility theory?

• laws used to punish those who criticized the government or Crown, truthful or  otherwise

- Licensing: the process by which a government gives a publisher or a broadcaster  prior permission to print a newspaper or operate a broadcasting station

What is censorship what are the reasons of censorship?

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MC 401 Chapter 2 - Prior Restraint: pre-publication censorship that forbids publication or broadcast of  certain objectionable material, as opposed to punishment of a perpetrator after  the material has been published or broadcast

- printers often had to deposit bonds with the government which would be forfeited  if any material was produced that the government did not approve of Don't forget about the age old question of What is the function of the corpus callosum?

- British control of the press was successful for 300 years largely because it went  unchallenged by the public

• the emergence and popularity of democracy across Europe made it much  more difficult for any government to limit expression

• British regulation of Colonial American press was never as successful B. Freedom of the Press in Colonial America

- in 1662 Massachusetts statutes made it a crime to publish anything without  getting prior approval from the government

- though censorship was used in the colonies, American juries were far less likely  to convict printers than their British counterparts If you want to learn more check out How do you clean pennies without losing their value?

• as a result, the colonial authorities were less efficient in using the same laws of  licensing, taxes, and sedition to control American publishers and printers

• licensing laws in America were ended in the 1720s

• see Zenger case pg. 37

- Jury Nullification: the controversial power of a jury, despite its sworn oath to apply  a law as interpreted and instructed by a judge, to instead ignore (and thereby  nullify) a law and decide a case according to its own conscience and sensibilities

• can be seen as an essential part of the legislative process which should  prompt a review or removal of the law in question

- the British continued to attempt to control the colonial press by bringing printers  and editors before colonial legislatures and assemblies that were hostile to  journalists

• often, these journalists were jailed and fined for sedition

- the effort to sanction and censor the press only served to further invigorate it 2

MC 401 Chapter 2 - freedom of expression for the colonists was censored more by member of the  community than from the government

• while citizens could hold and express and belief they chose, often their  personal safety depended on such ideas conforming to community norms

• the idea of freedom leads to a common misconception of American history that  all colonists wanted separation from England because those voices of  opposition were largely silenced after 1770 when the revolution became  apparent We also discuss several other topics like What are the major events on the geologic time scale?

• community censorship is essentially self-censorship enacted by private people  or business entities often as a result of pressure exerted by political activists,  economic stakeholders, or public interest groups

- the First Amendment only protects against government censorship and does not  apply or protect speech when a company adopts a policy of censorship (like  Facebook)

• TV channels such as Comedy Central or E! often have to self-censor their  shows to cover up explicit or vulgar language

- Heckler’s Veto: a situation that occurs when the audience’s negative, adverse  and sometimes violent reaction to the message conveyed by a peaceful speaker  is allowed to control and silence the speaker; the government should have the  duty to protect the speaker

• when this happens on a public university campus, it raises First Amendment  concerns and is no longer just community censorship

II. The First Amendment

• the Articles of Confederation, adopted in 1781, served as the first constitution of the  United States

• it organized the 13 colonies into a loose-knit confederation with power centralized  in the states as opposed to the federal government

• it emphasized the rights of the individual before the needs of the government, but  was not otherwise sufficiently functional If you want to learn more check out What is the note christine sings in phantom?

A. The New Constitution

- none of the delegates at the convention called in 1787 to amend the Articles of  Confederation were full-time politicians

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MC 401 Chapter 2 - end result was the formation and chartering of the U.S. Constitution as we know  it today

• power was divided more evenly between the states and federal government • the strongest complaint raised was the failure to include a bill of rights - after being elected to the First Congress to represent Virginia, James Madison  led the effort to add a bill of rights

• Congress approved 12 amendments (freedom of speech being the third) which  were sent to the states for ratification

• the first two were defeated and the freedom of expression came to be known  as the First Amendment

B. Freedom of Expression in the 18th Century

- the definition of the First Amendment has remained unchanged (it hasn't been  expanded or diminished) since it was first adopted

• to change it would require a new amendment

• this is the concept of “original intent” - that we continue to interpret the  Constitution as it was intended by its framers to be interpreted Don't forget about the age old question of When does j. s. bach die?

• this notion is often seen as misguided because the nation has changed  dramatically in ways that the framers could never have anticipated

- freedom of expression meant the right to be free from prior restraint or licensing - the First Amendment also protects people from subsequent punishments after  publication

C. Freedom of Expression Today

- the First Amendment means today what the Supreme Court says it means

• the Supreme Court is a collection of nine justices which means that at any  given time there could be up to nine different definitions of freedom of  expression

- there are seven major legal theories regarding the First Amendment

1. Absolutist Theory: the proposition that the First Amendment is an absolute,  and that the government may adopt no laws whatsoever that abridge freedom  of expression

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MC 401 Chapter 2 2. Ad Hoc Balancing Theory: freedom of speech and press are rights that often  conflict; as such, it is the responsibility of the court to balance the freedom of  expression with other values when conflict occurs

3. Preferred Position Balancing Theory: giving freedom of expression a  preferred position presumes that government action that limits free speech  and free press to protect other interests is usually unconstitutional

4. Meiklejohnian Theory: freedom of expression is a means to an end and  expression that relates to the self-governing process must be protected  absolutely by the First Amendment

5. Marketplace of Ideas Theory: the idealistically free and fair competition of  ideas with the end goal being that the truth will be discovered, or conceptions  of the truth will be tested and challenged

6. Access Theory: to make the guarantees of the First Amendment meaningful,  newspapers, magazines, and broadcasting stations should open their pages  and studios to the ideas and opinions of their readers and listeners and  viewers; if the press will not do this voluntarily, the obligation falls upon the  government to force such access to the press

7. Self-Realization Theory: speech is important to an individual regardless of its  impact on politics or its benefit to society at large

III. The Meaning of Freedom

• since the First Amendment was adopted in 1791, it has gone through struggles to  define the meaning of freedom of expression including:

- the power of the state to limit criticism or published attacks on the government - the power of the state to use taxation to censor the press

- the power of the government to forbid the publication of ideas or information it  believes to be harmful

A. Seditious Libel and the Right to Criticize the Government

- the essence of democracy is participation by citizens in the process of  government including selecting leaders and examining officials to determine their  fitness to serve

- the right to speak and print is inherent in a nation governed by popularly elected  rulers

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MC 401 Chapter 2 - in some instances, the rights protected by the First Amendment may come into  conflict with other provisions of the Constitution (i.e. the treason provision)

• in such cases, there are limits on how far people may go in their political  speech against the government

• through the courts it has been found that “abstract advocacy of violence” is  protected by the First Amendment while the incitement of violence and lawless  action is not

B. Alien and Sedition Acts

- Alien and Sedition Acts of 1798: laws adopted by the Federalist Congress aimed  at stopping criticism of the national government by Republican or Jeffersonian  editors and politicians

• forbade false, scandalous, and malicious publications against the U.S.  government, Congress, and the president

• punished those who urged resistance to federal laws

- the laws provoked dissension from President Adams’ supporters who were  dissatisfied with his attempts to silence his critics

- the Sedition Act expired in 1801 and President Jefferson pardoned all those who  had been convicted under it

- censorship was not uncommon during the abolitionist period and the Civil War - extensive censorship efforts in the latter half of the 19th century to silence the  more progressive minds of society

- towards the end of the 1800s, political dissent was gathering momentum both  domestically and abroad as the ideas of socialism and anarchism spread

- the breakout of World War I, followed by the entrance of the United States to the  conflict, silenced the criticism of the government

C. Sedition in World War I

- suppression of freedom of expression reached a higher level during WWI than  any other time in our history

• this included both government prosecution and persecution by vigilante groups 6

MC 401 Chapter 2 - Espionage Act: a law adopted by Congress in 1917 that outlawed criticism of the  U.S. Government and its participation in World War I in Europe

• it was a crime to willfully convey a false report with the intent to interfere with  the war effort

• it was a crime to attempt or cause insubordination, disloyalty, or mutiny in the  armed forces

• it was a crime to willfully obstruct the recruiting or enlistment services - Sedition Act of 1918: an amendment to the Espionage Act adopted in the midst of  World War I that severely limited criticism of the government and criticism of U.S.  participation in the European war

• it was a crime to say, print, write, or publish disloyal or profane language  intended to cause contempt of, or scorn for, the federal government,  Constitution, flag, or the uniform of the armed forces

- the U.S. Post Office Department was involved in censoring thousands of  publications  

- most states also adopted sedition statutes against criminal syndicalism

• Criminal Syndicalism: laws that outlaw advocacy, planning, or processes aimed  at establishing the control over industry by workers or trade unions

- political repression continued after the war spurred on by distrust of European  immigrants and the rise of political efforts by socialist and communist groups

- the legal meaning of freedom of expression developed very little in the first 125  years after its adoption

- see pg. 59-60 to see modern considerations of the Sedition Act of 1918

D. The Smith Act

- Smith Act: a federal law adopted in 1940 that makes it illegal to advocate the  violent overthrow of the government

• the law was aimed directly at the Communist Party of the United States

• in 1951, the Supreme Court rejected the argument that the Smith Act violated  the First Amendment (7-2)

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MC 401 Chapter 2 • in 1957, the Supreme Court ruled that the abstract notion of violence was not  enough to convict, instead there must be advocacy for actual action for the  forcible overthrow of the government (burden of proof)

• led to the practical demise of the Smith Act

- the Bill of Rights does not protect an individual who uses a public speech to  commit crimes

- the Patriot Act (2001) defines terrorism as any “attempt to intimidate or coerce a  civilian population” or change “the policy of government by intimidation or  coercion”

• closely resembles the traditional definition of sedition

• made it a crime to provide “expert advice or assistance” to terrorists, putting  free speech in conflict with the war on terror

E. Defining the Limits of Freedom of Expression

- in 1919 the Supreme Court and Justice Oliver Wendell Holmes ruled that  prosecution for sedition did not violate the First Amendment when the actions or  words used created a “clear and present danger” to society

• according to the Holmes test, Congress has the right to outlaw certain kinds of  conduct that might be harmful to the nation

- Justice Brandeis later made an effort to further define the meaning of clear and  present danger:

• to justify suppression of free speech there must be reasonable ground to fear  that serious evil will result if free speech is practice

• in order to support a finding of clear and present danger it must be shown  either that immediate serious violence was to be expected or was advocated,  or that the past conduct furnished reason to believe that such advocacy was  then contemplated

• Brandeis also believed that counter-speech is ideal compared to censorship  meaning discussion and education does more to prevent evil than enforced  silence

- Brandenburg v. Ohio: the constitutional guarantees of free speech and free press  do not permit a state to forbid or proscribe advocacy of the use of force or of law  

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MC 401 Chapter 2 violation except where such advocacy is directed to inciting or producing  imminent lawless action and is likely to incite or produce such actions

• key words: “directed”, “imminent”, “lawless action”, and “likely”

• this test is often used in courts to determine whether an artifact of the media  (such as a movie or video game) plays some part in inciting the actual  perpetrator of the crime to commit illegal acts and if the producers of that  artifact should be held liable

- video games are protected by the First Amendment and therefore in order to  justify content-based regulation, the strict scrutiny standard must be satisfied

• Strict Scrutiny: the standard of judicial review for content-based statutes,  requiring the government to prove that it has a compelling interest in regulating  the speech at issue and that the means of serving that interest are narrowly  tailored such that no more speech is restricted than is necessary to serve the  allegedly compelling interest

- the First Amendment makes no mention of the restrictions states may place on  freedoms of expression

- in 1925 the Supreme Court linked the First Amendment to the Fourteenth  Amendment’s due process clause protecting the personal liberties of citizens  from impairment by the states

• essentially the decision protected the freedom of expression at the state level  by defining it as a “liberty” under the Fourteenth Amendment

• this paved the way for the rest of the Bill of Rights to be protected at the state  level by connection to the Fourteenth Amendment

IV. Prior Restraint

• most agree the guarantees of free speech and press were intended to bar the  government from exercising prior restraint

• the traditional principle in U.S. law is that courts will not issue an injunction stopping  the publication of an allegedly libelous statement before it occurs

- in other words, you can’t get a court to stop your local newspaper from printing  something bad about you - you can only sue them after the fact

• courts can issue prior restraints stopping publication by private parties of stolen  trade secrets or intellectual property

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MC 401 Chapter 2 - the internet makes this incredibly difficult because if it is posted even for a  moment, the information could be duplicated on other sites, be downloaded, or  reposted elsewhere

- courts will generally not grant a prior restraint unless they will be effective in  preventing the alleged harm or injury (if it’s already out, they won’t issue)

• individuals or groups seeking a permit before engaging in protected speech is  essentially a prior restraint

• Rules of Prior Restraint:

- burden rests with the government to prove that prior restraint is justified - there must be compelling interest

- the scope of the prior restraint must be very narrow

- unprotected speech can be restrained only after a judicial proceeding determines  that the speech is in fact not protected by the First Amendment (ie. obscenity)

A. Near v. Minnesota

- in 1931, the U.S. Supreme Court ruled that under American law prior censorship  is permitted only in very unusual circumstances; it is the exception, not the rule

B. Pentagon Papers Case

- in a case involving the prior restraint of a publication, the government bears the  burden to justify such a restraint, even if the content may involve an issue of  national security

C. Progressive Magazine Case

- national security concerns may merit a prior restraint if compelling interest is  proven (this case never made it to the top ranks, the content was published  elsewhere making it irrelevant)

D. United States v. Bell

- the general principle of the First Amendment law that prior restraints bear a  heavy presumption against their constitutional validity does not apply to  restrictions on unprotected speech, including false or unlawful commercial  speech

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