FIRST AMENDMENT LAW. Professor Ronald Turner A.A. White Professor of Law Spring 2018

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1 FIRST AMENDMENT LAW Professor Ronald Turner A.A. White Professor of Law Spring 2018

2 James Madison s 1789 Proposal The fourth proposed amendment: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national origin be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

3 The First Amendment (1791) 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.

4 First Amendment History Prior restraints Seditious libel The Sedition Act of 1798 The right to petition

5 First Amendment Theory Truth o Justice Brandeis: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. o Justice Holmes: free trade in ideas ; the best test of truth is the power of the thought to get itself accepted in the competition of the market Self-government Individual liberty, autonomy, and self-fulfillment Negative theories: distrust of government

6 First Amendment Jurisprudence Are First Amendment rights absolute? o An unlimited license to talk? Judicial balancing and weighing of (1) First Amendment protections and (2) the exercise of governmental power Categorization: certain types of speech are not protected; e.g., fighting words, obscenity Strict scrutiny of governmental regulations o Compelling state ends effectuated by least restrictive means: government prevails

7 Incitement To Violence Or Subversion Title I, Section 3 of the 1917 Espionage Act and 1918 amendments Three new offenses 2000 prosecutions; more than 1000 convictions

8 Incitement To Violence Or Subversion Schenck v. United States (1919) At-issue document o Thirteenth Amendment, Section 1 (1865): Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. o Assert your rights. The First Amendment question

9 Schenck (cont.) [T]he character of every act depends upon the circumstances in which it is done. falsely shouting fire in a theatre and causing panic [W]hether the words used 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 substantial evils that Congress has a right to prevent. It is a question of proximity and degree.

10 Schenck (cont.) Many things said during peacetime may hinder the war effort and are not protected by any constitutional right. Focus: the act, its tendency, and intent The meaning of clear and present danger

11 Incitement To Violence Or Subversion Frohwerk v. United States (1919) o The First Amendment was not intended to give immunity for every possible use of language o quarters where a little breath would be enough to kindle a flame Debs v. United States (1919) o Speech o Jury instructions: Debs could not be found guilty for advocacy of his opinions unless his words had as their natural tendency and reasonably provable effect the obstruction of the recruiting service and he had the specific intent to do so in his mind. o Guilty of obstructing and attempting to obstruct the recruiting service

12 Incitement To Violence Or Subversion Abrams v. United States (1919) Justice Clarke s opinion for the Court Justice Holmes dissent o intent o Did not doubt that Schenck, Frohwerk, and Debs were correctly decided o Government may constitutionally punish speech that produces or is intended to produce a clear and imminent danger o present danger of immediate evil or an intent to bring it about ; emergency o free trade in ideas, the market

13 A Tribute Josephine Bell Emma Goldman and Alexander Berkman Are in prison tonight, But they have made themselves elemental forces, Like the water that climbs down the rocks: Like the wind in the leaves: Like the gentle night that holds us: They are working on our destinies: They are forging the love of the nations: Tonight they lie in prison.

14 Incitement To Violence Or Subversion Masses Publishing Co. v. Patten (S.D.N.Y. 1917) o Magazine text and cartoons; three provisions of the 1917 Espionage Act Judge Hand s statutory construction Opinion and criticism are not false statements of fact and are protected One cannot directly incite, counsel, or advise insubordination, mutiny, resistance, or violations of the law Holding

First amendment J201 Introduction to Mass Communication Oct Professor Hernando 201.journalism.wisc.

First amendment J201 Introduction to Mass Communication Oct 16-2017 Professor Hernando Rojas hrojas@wisc.edu @uatiff 201.journalism.wisc.edu #sjmc201 Today s class plan 1 Mid term exam 2 The First Amendment