Controls on the Press in Colonial America

1
Controls on the Press in Colonial America
Type of control
Source of control

• licensing
• seditious libel
• breach of privilege (contempt of assembly)

• royal governors
• courts
• colonial assemblies

2
Licensing in the colonies

• 1st newspaper in the colonies, Publick
  Occurrences, Both Foreign and Domestick, 1690,
  Boston, shut down after one issue for publishing
  without a license.
• 2nd newspaper, also in Boston, 1704, licensed and
  subsidized by colonial authorities.
  
• How and when ended?
• In the mid-1720s, largely due to efforts of
  James Franklin, who refused to submit to
  licensing, jailed twice. Public opposition.
  Licensing just died out.

3
Seditious libel in the colonies

• What was seditious libel?
• Any criticism of government. Anything causing
  public to think ill of government. Truth is
  irrelevant. In fact, the greater the truth, the
  greater the libel.
• How and when ended?
• 1735 seditious libel trial of John Peter Zenger
  effectively ended prosecutions but did not change
  the law of seditious libel. Change in the law
  didnt come until the end of the 18th century.

4
Breach of privilege (or contempt of the assembly)
in the colonies

• What was breach of privilege?
• Criticism of the colonial assemblies or their
  members.
  
• How punished?
• Summarily by the assemblies. None of the
  rights available to the accused that he would
  have had in a regular court of law.
  
• How and when ended?
• Enforced until the Revolution.

5
Blackstones definition of freedom of the press,
18th century
No prior restraints on publication but not
freedom from post-publication punishments for
criminal publications.
Was this what the framers of the First Amendment
meant when they protected freedom of the press in
the First Amendment?
6
First Amendment to the U.S. Constitution
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof or abridging the freedom
of speech, or of the press or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.
Added to the Constitution Dec. 15, 1791.
7
The Sedition Act of 1798
A crime to speak, write or publish any false,
scandalous and malicious statements about
Congress or the president. Law incorporated the t
wo protections Hamilton had argued for in the
Zenger trial 1. Truth was a defense. 2. The jur
y was responsible for determining whether the
words were criminal.
8
The Sedition Act of 1798

• Led to the development of a new definition of
  freedom of the press
  
• Freedom of the press consists of no prior
  restraints and the freedom to criticize
  government.
  
• Law expired in 1801. President Jefferson repaid
  fines and pardoned those who had been convicted.
  

9
20th Century Sedition Cases

• Schenck v. United States, 1919 The clear and
  present danger test is enunciated by Justice
  Holmes.
  
• Abrams v. United States, 1919 Holmes dissents,
  saying the majority is misconstruing the clear
  and present danger test.
  
• Gitlow v. New York, 1925 For the first time the
  U.S. Supreme Court applies the First Amendment to
  the states via the Fourteenth Amendment the
  Court incorporates the First Amendments free
  speech provision into the Fourteenth Amendment by
  declaring the word liberty included the liberty
  of speech.

10
Incorporation

• Until 1925, the Bills of Rights, including the
  First Amendment, applied only to actions of the
  federal government
  
• Gitlow v. New York, 1925, U.S. Supreme Court
  applied the First Amendment to the states via the
  Due Process Clause of the 14th Amendment.

11
Incorporation

• The process by which the U.S. Supreme Court has
  applied portions of the Bill of Rights to the
  state via the 14th Amendments due process clause.

12
More sedition cases

• Dennis v. United States, 1951 It becomes obvious
  that the justices do not agree on the meaning of
  the clear and present danger test.
  
• Yates v. United States, 1957 The Court begins
  developing a new test, drawing a distinction
  between advocacy of abstract doctrine and
  incitement to imminent illegal action.
• Brandenburg v. Ohio, 1969 The Court announces
  the new test -- Advocacy of abstract doctrine is
  protected by the First Amendment incitement to
  imminent lawless action is not.

13
Functions of freedom of expression in a
democratic society

• for individual self-fulfillment
• for the advancement of knowledge and discovery of
  truth (marketplace of ideas theory)
  
• to enable citizens to participate in social,
  including political, decision-making
  (self-government rationale)
  
• to maintain a balance between stability and
  change in society (safety valve function)
  
• to serve as a check on government (watchdog
  function)

14
First Amendment tests

• Bad tendency test
• If expression had a tendency to cause harm, it
  could be prevented and/or punished.
  

15
First Amendment tests

• Clear and present danger test
• The First Amendment does not protect speech
  that creates a clear and present danger of
  bringing about substantive evils that Congress
  has the power to prevent. First articulated in
  Schenck v. U.S., 1919.

16
When can dangerous speech be prohibited?

• The clear and present danger test has been
  modified (some say replaced). The current test
  for determining when speech is so dangerous it is
  unprotected by the First Amendment distinguishes
  between incitement and advocacy.
• Advocacy of abstract doctrine is protected by the
  First Amendment.
  
• Incitement to imminent lawless action is not
  protected.
  
• Based on Yates v. U.S., 1957, Brandenburg
  v. Ohio, 1969
  

17
First Amendment tests

• Balancing test
• The right to freedom of expression is balanced
  or weighed against competing rights and
  interests, for example, the right to reputation
  or to a fair trial by an impartial jury.
• Ad hoc Each case handled separately, no
  standards or definitions.
  
• Definitional Specific, defined standards
  applied. Preferred approach for consistency and
  predictability.
  

18
Levels of scrutiny

• Courts apply different level of scrutiny
  (review) to regulations on expression depending
  on a number of factors, e.g., whether the
  regulation is content-based or content-neutral,
  what type of expression is at issue, the goal of
  the regulation.

19
Strict scrutiny

• If a regulation is aimed at restricting
  expression or is a content-based restriction
  affecting fully protected expression (such as
  political speech), courts apply strict scrutiny.
  
• The regulation will be held constitutional only
  if
  
• There is a compelling governmental interest to
  justify the regulation
  
• The regulations is narrowly tailored, the least
  restrictive means available to achieve the goal.

20
Intermediate scrutiny

• If the regulation is not aimed at expression,
  is content-neutral or affects less protected
  speech (such as commercial speech, courts apply
  intermediate scrutiny.

21
The OBrien(or intermediate scrutiny) test

• Is the regulation within the power of
  government?
  
• Does the regulation further a substantial
  government interest?
  
• Is the interest unrelated to the suppression of
  expression?
  
• Is the restriction on free speech no greater than
  necessary to achieve the government interest?
  
• (Well cover other types of intermediate scrutiny
  later in the semester as well.)

22
Fighting Words

• Chaplinsky v. New Hampshire, 1945 Words which
  by their very utterance inflict injury or tend to
  incite an immediate breach of the peace. Must be
  aimed directly at an individual.
• R.A.V. v. St. Paul, 1993 Local ordinance
  prohibited conduct for the purpose of arousing
  anger, alarm or resentment on the basis of
  color, creed, religion, or gender. U.S. Supreme
  Court struck the law down as unconstitutional
  since it amounted to viewpoint discrimination.