THE HISTORY OF THE FIRST AMENDMENT
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--
STATIONER'S COMPANY
COURT OF HIGH COMMISSION
COURT OF THE STAR CHAMBER
PARLIAMENT--1695--THE COMMON LAW OF LIBEL
CRIMINAL (PRISON/TORTURE/DEATH)
BLASPHEMOUS
OBSCENE
SEDITIOUS "the crime consisted of defaming or condemning or ridiculing the government- its form, constitution, officers, laws, conduct, or policies to the jeopardy of the public peace. In effect, any malicious criticism about the government that could be construed to have the bad tendency of lowering it in the public's esteem, holding it up to contempt or hatred, or of disturbing the peace was seditious libel"
CIVIL ($$$$$)
80 YEARS OF LICENSING/CENSORSHIP IN THE COLONIES (AMERICA)
REVOLUTION--1776
BILL OF RIGHTS--1791
FIRST AMENDMENT--disfavoring of
LICENSING
CENSORSHIP
SEDITIOUS LIBEL
ALIEN AND SEDITION ACTS--1798
ESPIONAGE ACT--1917
SHENCK V. UNITED STATES--1919
GITLOW V. NEW YORK--1925
Reasons for Protecting Expression
1. Marketplace theory--Truth will arise out of the marketplace of ideas. "An individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test her judgment by exposing it to opposition, and make full use of different minds." Smolla: . . . Like all markets, it may experience positive and negative cycles. . . . The marketplace of ideas, no less than the marketplace of commerce, will inevitably be biased in favor of those with the resources to ply their wares. The ideas of the wealthy and powerful will have greater access to the market than the ideas of the poor and disenfranchised. The billions of dollars spent each year by advertisers flood the intellectual marketplace with speech calculated to influence consumers. The marketplace of ideas rationale is ostensibly contradicted by our everyday experience. There are as many shoddy ideas circulating as there are shoddy products and worthless junk bonds. The marketplace does not seem to produce truth, not at least with any consistency, and so we are left with the nagging suspicion that good ideas have precious little capacity to drive our bad ones.
2. Self-Fulfillment--Smolla: "Free speech is an end [in] itself, an end intimately intertwined with human autonomy and dignity. . . . The fulfillment that comes from speech is bonded to man's capacity to think, imagine, and create. Conscience and consciousness are the sacred precincts of mind and soul. The linkage of speech to thought, to man's central capacity to reason and wonder, is what places speech above other forms of fulfillment, and beyond the routine jurisdiction of the state."
3. Democratic Self-Governance--Smolla: "Free speech is an indispensable tool of self-government in a democratic society. . . .Freedom of speech is related to self-governence in at least 5 ways.
1. ". . .Speech is a means of participation, the vehicle through which individuals debate the issues of the day, cast their votes, and actively join in the processes of decision-making that shape the polity."
2. "The second self-governance interest served by free speech is the pursuit of political truth"--a derivative of the marketplace of ideas rationale.
3. Free speech "facilitates majority rule."
4. Free speech helps to restrain "tyranny, corruption, and ineptitude." [Watch-dog function of the press]
5. Free speech enhances stability [Safety-valve, e.g. Hyde Park: Speaker's Corner]
TESTS FOR FIRST AMENDMENT ANALYSIS
1. BALANCING TEST:
GOV'TS CONCERN ABOUT PROTECTING A PARTICULAR INTEREST
V.
THE SPEAKER'S, WRITER'S, SOCIETY'S INTEREST IN FREE EXPRESSION
LANDMARK COMMUNICATIONS V. VIRGINIA (1978)
SMITH V. DAILY MAIL PUBLISHING COMPANY (1979)
2. CLEAR AND PRESENT DANGER TEST:
SCHENCK V. UNITED STATES (1919)--EXPRESSION CAN BE PUNISHED WHEN "THE WORDS ARE USED IN SUCH CIRCUMSTANCES AND ARE OF SUCH A NATURE AS TO CREATE A CLEAR AN PRESENT DANGER THAT THEY WILL BRING ABOUT THE SUBSTANTIVE EVILS THAT CONGRESS HAS A RIGHT TO PREVENT. IT IS A QUESTION OF PROXIMITY AND DEGREE."
. . . . . . . . . . . .
INCITEMENT:
BRANDENBURG V. OHIO (1969)--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 IS LIKELY TO INCITE OR PRODUCE SUCH ACTION."
3. LITERAL OR ABSOLUTIST APPROACH:
(JUSTICES BLACK AND 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 KNEW WHAT HISTORY WAS BEHIND THEM AND 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."
4. THE CATEGORICAL APPROACH--MANY SUPREME COURT DECISIONS PLACE CERTAIN CATEGORIES OF SPEECH OUTSIDE OF THE PROTECTION OF THE FIRST AMENDMENT: OBSCENE SPEECH, LIBELOUS SPEECH, FIGHTING WORDS ("those which by their very utterance inflict injury or tend to incite an immediate breach of the peace")
BUT FAILURE OF A CAGEGORY TO WARRANT FIRST AMENDMENT PROTECTION MUST NOT DEPEND UPON THE "POINT OF VIEW" OF THE SPEAKER.
R.A.V. V. CITY OF SAINT PAUL (1992) ["fighting words"] "whoever places on public or private property a symbol, object, appellation, characterization or graffitti, 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 misdemeanor."
MILLER V. CALIFORNIA (1973)--["obscene"]
"[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."