Models of First Amendment Analysis

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Models of First Amendment Analysis
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First Amendment History

• Dangerous utterances (1295) any false news or
  tales whereby discord or occasion of discord or
  slander may grow between the King and his people
• Henry VIII imprimatur
• Elizabeth I
• Stationers Company
• Court of High Commission
• Court of the Star Chamber

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The Common Law of Libel--Parliament (1695)

• Criminal libel (prison, torture, death)
• Blasphemy
• Obscenity
• Sedition the crime consisted on defaming or
  condemning or ridiculing the government . . . to
  the jeopardy of the public peace . . . any
  malicious criticism about the government that
  could be construed to have the bad tendency of
  lowering it in the publics esteem . . . or of
  disturbing the peace.
• Civil libel (liable for a money payment)

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Licensing and Censorship in the American Colonies

• Eighty years past 1695 (different standard in the
  colonies)
• Revolution in 1776
• Bill of Rights in 1791

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Bill of Rights--First Amendment(1791)

• Congress shall make no law . . . abridging
  freedom of speech, or of the press. . . .
• This Amendment . . . was adopted, as was the
  Fourth prohibiting unreasonable search and
  seizure. . . With the actions of the star
  chamber im mind. . . . The Bill of Rights was
  fashioned against the background of knowledge
  that unrestricted power of search and seizure
  could also be an instrument for stifling liberty
  of expression. Marcus v. Search Warrants (1961)

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Subsequent History of Free Speech

• Alien and Sedition Acts of 1798
• Espionage Act of 1917
• Shenck v. United States (1919)
• Gitlow v. New York (1925)

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Reasons for Protecting Expression

• Self-fulfillment
• Brandeis, pp. 7-8
• Emerson, p. 13
• Marketplace of ideas
• Milton and Mill, p. 10
• Learned Hand, p. 11
• Emerson, p. 13

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Reasons (continued)

• Democratic self-governance
• Emerson, p. 13
• Stability/safety-valve
• Emerson, p. 14
• Watch-dog function of the press

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Models of First Amendment Analysis
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Absolutist or Literal Approach

• Justice Black and Justice Douglas (Pentagon
  Papers Case)
• I believe when our founding fathers, with their
  wisdom and patriotism, wrote this Amendment, they
  knew what they were talking about. . . . They
  wanted to ordain in this country that Congress,
  elected by the people, should not tell the people
  what religion they should have or what they
  should believe or say or publish, and that is
  about it. It says no law, and that is what I
  believe it means.

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Balancing

• Courts must balance---
• The governments concern about protecting a
  particular interest, with
• The speakers, writers, societys interest in
  free expression
• Landmark Communications v. Virginia (1978)
• Smith v. Daily Mail Publishing Company (1979)

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Categorical Approach

• Certain categories of speech are outside of the
  protections of the First Amendment
• Obscene speech
• Child pornography
• Libelous speech
• Fighting words
• But failure of a category of speech to warrant
  First Amendment protection must not depend on the
  point of view of the speaker.

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Categorical Approach--Case

• Miller v. California (1973) puts obscene speech
  outside of the protection of the 1 Amendment and
  defines it
• a) whether the average person, applying
  contemporary community standards would find the
  work, taken as a whole, appeals to the prurient
  interest,
• b) whether the work depicts or describes, in a
  patently offensive way, sexual conduct
  specifically defined by the applicable state law,
  and
• c) whether the work, taken as a whole, lacks
  serious literary, artistic, political, or
  scientific value.

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Categorical Approach

• RAV v. City of Saint Paul (1992)
• The 1A does not protect fighting words
• Whoever places on public or private property a
  symbol, object, appellation, characterization or
  graffiti, including, but not limited to, a
  burning cross or Nazi swastika, which one knows
  or has reasonable grounds to know, arouses anger,
  alarm or resentment in others on the basis of
  race, color, creed, religion or gender. . .
  Shall be guilty of a misdeameanor.
• Found unconstitutional by the Supreme Court

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Clear and Present Danger/Incitement

• Seditious speech has no 1A protection
• Seditious speech presents a clear and present
  danger Expression can be punished when the
  words 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.
  Schenck v. United States (1919)
• Seditious speech incites A state may not
  forbid or proscribe advocacy of the use of force
  or of any violation of law unless such advocacy
  is directed to inciting or producing imminent
  lawless action and I likely to incite or produce
  such action. Brandenburg v. Ohio (1969)

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Britains Antiterrorism Act of 2006

• Criminalizes actions which
• foment other serious criminal activity or seek
  to provoke others to serious criminal acts
• foster hatred which might led to intercommunity
  violence in the U.K.
• The regulations cover writing, producing,
  publishing or distributing material public
  speaking, including preaching running a Web
  site or using a position of responsibility
  teacher, community or youth leader.

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A Balancing Approach to Hate Speech Virginia v.
Black (2003)

• At issue was a 50 year old VA statute banning
  cross-burning sec. 18.2-423
• "It shall be unlawful for any person or persons,
  with the intent of intimidating any person or
  group of persons, to burn, or cause to be burned,
  a cross on the property of another, a highway or
  other public place. Any person who shall violate
  an provision of this section shall be guilty of a
  Class 6 felony."
• "Any such burning of a cross shall be prima facie
  evidence of an intent to intimidate a person or
  group of persons."

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Facts

• Barry Black, (a KKK member) had been convicted
  under the statute when he supervised a
  cross-burning in an open field. Two other
  defendants (not KKK members) had been convicted
  burned a cross on the lawn of a neighbor. Black's
  conviction was overturned because the jury was
  instructed that "the burning of a cross by itself
  is sufficient evidence from which you may infer
  the required intent." The state may retry the
  defendant with the proper instructions. The other
  defendants, the Elliott brothers and Jonathan
  O'Mara, had convictions overturned by the VA
  Supreme Court. The state may also retry them.

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Opinion of the Court

•  Cross burning originated in the 14th century as
  a means for Scottish tribes to signal each other.
  See M. Newton J. Newton, The Ku Klux Klan An
  Encyclopedia 145 (1991). Sir Walter Scott used
  cross burnings for dramatic effect in The Lady of
  the Lake, where the burning cross signified both
  a summons and a call to arms. See W. Scott, The
  Lady of The Lake, canto third. Cross burning in
  this country, however, long ago became unmoored
  from its Scottish ancestry. Burning a cross in
  the United States is inextricably intertwined
  with the history of the Ku Klux Klan.

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Opinion of the Court

• Cross burning as mere advocacy is protected.
• Cross burning as a true threat (those
  statements where the speaker means to communicate
  a serious expression of an intent to commit an
  act of unlawful violence to a particular
  individual or group of individuals) is not
  protected by the First Amendment.