THE FIRST THE FIRST AMENDMENTAMENDMENT

20132013

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.

1791

What Does the First What Does the First Amendment Protect?Amendment Protect?

Congress may not establish a Congress may not establish a religionreligion

Free exercise of religionFree exercise of religion Freedom of speechFreedom of speech Freedom of the pressFreedom of the press Right to assembleRight to assemble Right to petition governmentRight to petition government

Origins of the First AmendmentOrigins of the First Amendment

Government attempts to limit free Government attempts to limit free expressionexpression 1275 -- 1275 -- De Scandalis MagnatumDe Scandalis Magnatum Star ChamberStar Chamber British Licensing ActsBritish Licensing Acts Stamp Act in 1712Stamp Act in 1712

Prosecutions for seditious libelProsecutions for seditious libel

promoting ill opinions of the promoting ill opinions of the government and advocating changegovernment and advocating change

hundreds convicted (seventeenth hundreds convicted (seventeenth and eighteenth centuries)and eighteenth centuries)

fines, imprisonment, whipping, fines, imprisonment, whipping, pillorypillory

some publications critical of the some publications critical of the king punished as treasonking punished as treason

The PilloryThe Pillory

Punishment was not pleasant . . Punishment was not pleasant . . ..

In 1663, William Twyn, for printing a book In 1663, William Twyn, for printing a book that endorsed the right of revolution, was that endorsed the right of revolution, was held to have encompassed [imagined] held to have encompassed [imagined] the kingthe king’’s death; Twyn was sentenced to s death; Twyn was sentenced to be hanged, cut down while still alive, and be hanged, cut down while still alive, and then emasculated, disemboweled, then emasculated, disemboweled, quartered, and beheaded--the standard quartered, and beheaded--the standard punishment for treason.punishment for treason.

Leonard LevyLeonard Levy

Protests Against Government Protests Against Government LicensingLicensing

John Milton – 1644 John Milton – 1644 AreopagiticaAreopagitica

AreopagiticaAreopagiticaFor the Liberty of Unlicensed For the Liberty of Unlicensed

PrintingPrinting

had marital difficultieshad marital difficulties wanted to publish unlicensed pamphlets wanted to publish unlicensed pamphlets

about divorceabout divorce book had little effect when first publishedbook had little effect when first published but call for freedom of expression left its but call for freedom of expression left its

mark over timemark over time

Give me liberty to Give me liberty to know, to utter, and to know, to utter, and to argue freely according to argue freely according to conscience, above all conscience, above all liberties.liberties.

The Power of TruthThe Power of Truth

Let truth and falsehood grapple . . .Let truth and falsehood grapple . . . In a free and open encounter, truth In a free and open encounter, truth

would always win.would always win. Regulations of communication injures Regulations of communication injures

truth by doubting the strength of truth by doubting the strength of truth.truth.

Meanwhile in America . . . Meanwhile in America . . .

Licensing in Massachusetts -- 1662Licensing in Massachusetts -- 1662 Pennsylvania and Virginia also had Pennsylvania and Virginia also had

licensinglicensing 1639 - 1776 -- lots of prosecutions1639 - 1776 -- lots of prosecutions

John Peter Zenger - 1735John Peter Zenger - 1735

Zenger trialZenger trial

John Peter ZengerJohn Peter Zenger

publisher of publisher of New York Weekly JournalNew York Weekly Journal first independent political paper first independent political paper

published in Americapublished in America opposed New York Governor William opposed New York Governor William

CrosbyCrosby editor of paper, James Alexander, editor of paper, James Alexander,

wrote most of critical materialwrote most of critical material Zenger was jailed for seditious libelZenger was jailed for seditious libel

One objectionable passage . . .One objectionable passage . . .

We see menWe see men’’s deeds destroyed, judges s deeds destroyed, judges arbitrarily displaced, new courts created arbitrarily displaced, new courts created without consent of the legislature by without consent of the legislature by which it seems to me trial by jury is taken which it seems to me trial by jury is taken away when a Governor pleases, and men away when a Governor pleases, and men of known estates denied their votes of known estates denied their votes contrary of the received practice, the contrary of the received practice, the best expositor of any law. Who is there best expositor of any law. Who is there then in that Province that can call then in that Province that can call anything his own, or enjoy any liberty, anything his own, or enjoy any liberty, longer than those in the administration longer than those in the administration will condescend to let them do it?will condescend to let them do it?

Zenger trial . . .Zenger trial . . .

Andrew Hamilton defended Zenger.Andrew Hamilton defended Zenger. Admitted publication but argued, to Admitted publication but argued, to

jury, that statements about the jury, that statements about the governor were true.governor were true.

Truth is now a defense to libel cases, Truth is now a defense to libel cases, but wasnbut wasn’’t a defense then.t a defense then.

Clear sign America on own legal path.Clear sign America on own legal path.

If all printers were If all printers were determined not to print determined not to print anything till they were sure it anything till they were sure it would offend nobody, there would offend nobody, there would be very little printed.would be very little printed.

Benjamin Benjamin FranklinFranklin

First AmendmentFirst Amendment

Was third amendment at first, but two Was third amendment at first, but two that preceded it were not adopted.that preceded it were not adopted.

One of first ten amendments adopted.One of first ten amendments adopted. Written chiefly by James Madison.Written chiefly by James Madison. Consulted speech clauses in various state Consulted speech clauses in various state

constitutions.constitutions. Framers had broad disagreement over Framers had broad disagreement over

what what ““freedom of speechfreedom of speech”” meant in meant in various situations.various situations.

Original Amendments ProposedOriginal Amendments Proposed

Number of Representatives in Number of Representatives in CongressCongress

27th Amendment (1992)27th Amendment (1992)

"No law varying the "No law varying the compensation for the services of the compensation for the services of the Senators and Representatives shall Senators and Representatives shall take effect until an election of take effect until an election of Representatives shall have Representatives shall have intervened." intervened."

Interpreting the Interpreting the First Amendment . . .First Amendment . . .

PrecedentPrecedent Weigh competing interestsWeigh competing interests Consider public policyConsider public policy Ponder language of amendmentPonder language of amendment Consider history of First AmendmentConsider history of First Amendment

Why freedom of speech . . .Why freedom of speech . . .

Social reasonsSocial reasons Individualistic reasonsIndividualistic reasons

Social ReasonsSocial Reasons

Discovery of truthDiscovery of truth Participation in democracyParticipation in democracy Check on governmentCheck on government Social stabilitySocial stability

Individualistic ReasonsIndividualistic Reasons

Natural lawNatural law Individual self-fulfillmentIndividual self-fulfillment

Nature of First Amendment Nature of First Amendment protection . . . protection . . .

Liberty vs. government power.Liberty vs. government power. Few First Amendment cases in first Few First Amendment cases in first

100 years of existence.100 years of existence. Viewed only to prevent Viewed only to prevent federalfederal actions actions

against freedom of expression.against freedom of expression. Supreme Court agreed with that view Supreme Court agreed with that view

in 1833 case.in 1833 case.

Extension of First Amendment.Extension of First Amendment. 14th Amendment -- 1868 -- post-Civil 14th Amendment -- 1868 -- post-Civil

WarWar 1925 Supreme Court case1925 Supreme Court case

14th Amendment page 1 14th Amendment page 2

No State shall make or No State shall make or enforce any law which shall enforce any law which shall abridge the privileges or abridge the privileges or immunities of citizens of the immunities of citizens of the United States; nor shall any United States; nor shall any State deprive any person of life, State deprive any person of life, liberty, or property, without due liberty, or property, without due process of law.process of law.

18681868

For present purposes we may and do For present purposes we may and do assume that freedom of speech and of the assume that freedom of speech and of the press--which are protected by the 1st press--which are protected by the 1st Amendment from abridgment by Amendment from abridgment by Congress--are among the fundamental Congress--are among the fundamental personal rights and "liberties" protected by personal rights and "liberties" protected by the due process clause of the 14th the due process clause of the 14th Amendment from impairment by the Amendment from impairment by the states.states.

Gitlow v. New YorkGitlow v. New York268 U.S. 652, 666 (1925)268 U.S. 652, 666 (1925)

Defining the First AmendmentDefining the First Amendment

protections not absoluteprotections not absolute not all speech protectednot all speech protected not all speech protected in same not all speech protected in same

mannermanner Supreme Court has Supreme Court has ““fleshed outfleshed out””

meaning of First Amendment over meaning of First Amendment over the years by applying it to specific the years by applying it to specific factual situations -- i.e., to casesfactual situations -- i.e., to cases

How to Analyze a First How to Analyze a First Amendment CaseAmendment Case

Is government action involved?Is government action involved? Does the law, etc. of the government Does the law, etc. of the government

impede expression?impede expression? What type of speech is it?What type of speech is it?

unprotectedunprotected speech plus, commercial, broadcastspeech plus, commercial, broadcast all other -- or all other -- or ““political speechpolitical speech””

Unprotected SpeechUnprotected Speech

Clear and Present Danger Clear and Present Danger (Incitement)(Incitement)

Fighting WordsFighting Words False Commercial SpeechFalse Commercial Speech DefamationDefamation ObscenityObscenity Child PornographyChild Pornography

Unprotected SpeechUnprotected Speech

Minimum Scrutiny (lowest level)Minimum Scrutiny (lowest level) A rational basis for the regulation is A rational basis for the regulation is

required.required. government action must be rationally government action must be rationally

related to any government interest and related to any government interest and not overbroadnot overbroad

rational basis required by due process rational basis required by due process clauses of Fifth and Fourteenth clauses of Fifth and Fourteenth AmendmentsAmendments

Commercial, Broadcast, Commercial, Broadcast, Symbolic Speech Symbolic Speech

Commercial speech -- Commercial speech -- advertisingadvertising speech intended to generate speech intended to generate

marketplace transactionsmarketplace transactions Broadcast -- free, over the air Broadcast -- free, over the air

radio and televisionradio and television Symbolic -- burning the flag, Symbolic -- burning the flag,

protest marchesprotest marches

Commercial, Broadcast & Commercial, Broadcast & SymbolicSymbolic

Intermediate ScrutinyIntermediate Scrutiny Substantial Interest requiredSubstantial Interest required

government action must be narrowly government action must be narrowly tailored to advance a substantial tailored to advance a substantial government interestgovernment interest smooth operation of a government programsmooth operation of a government program protecting community order and tranquilityprotecting community order and tranquility safeguarding private economic interestssafeguarding private economic interests indirectly promoting public healthindirectly promoting public health upholding basic notions of moralityupholding basic notions of morality

Political SpeechPolitical Speech

All other speechAll other speech

Political SpeechPolitical Speech

Strict ScrutinyStrict Scrutiny Compelling Government InterestCompelling Government Interest

government action must be narrowly government action must be narrowly tailored to advance a compelling tailored to advance a compelling government interestgovernment interest

protecting nationprotecting nation’’s very existences very existence safeguarding life or limbsafeguarding life or limb shielding children from lasting emotional shielding children from lasting emotional

harmharm

ApplicationsApplications

Megahuge Company allows Megahuge Company allows employees to use the companyemployees to use the company’’s s

e-mail system to announce e-mail system to announce opportunities for volunteer service opportunities for volunteer service projects, except for political parties projects, except for political parties

or causes. If you work for or causes. If you work for Megahuge, are your First Megahuge, are your First

Amendment rights being violated?Amendment rights being violated?

Erie (PA) statute makes it a Erie (PA) statute makes it a misdemeanor to appear in misdemeanor to appear in public place public place ““in a state of in a state of

nuditynudity”” dancing is dancing is ““protectable protectable

expressionexpression”” under the First under the First AmendmentAmendment

what about nude dancing?what about nude dancing?

The FCC restricts the The FCC restricts the maximum time that maximum time that

broadcasters may allocate to broadcasters may allocate to commercials during commercials during

programming directed programming directed primarily to children on both primarily to children on both

commercial and cable commercial and cable television.television.

First Amendment IssueFirst Amendment Issue

Is government action involved?Is government action involved? Does the law impede expression?Does the law impede expression? What type of speech is it?What type of speech is it?

Unprotected - minimum scrutiny, rational Unprotected - minimum scrutiny, rational basisbasis

Commercial, Broadcast, Symbolic - Commercial, Broadcast, Symbolic - intermediate scrutiny substantial interestintermediate scrutiny substantial interest

Political - strict scrutiny, compelling Political - strict scrutiny, compelling interestinterest

Narrowly tailored to advance interest? Narrowly tailored to advance interest?

Time, Place, Manner Time, Place, Manner RegulationsRegulations

restrictions on marches, picketing, restrictions on marches, picketing, etc.etc.

Time, Place, Manner Time, Place, Manner RegulationsRegulations

Intermediate ScrutinyIntermediate Scrutiny Substantial Government InterestSubstantial Government Interest Content neutral -- only time, place, mannerContent neutral -- only time, place, manner no room for administrative discretionno room for administrative discretion applied consistently across boardapplied consistently across board ample alternatives for communication of ample alternatives for communication of

messagemessage Tests known as Tests known as ““standard of judicial reviewstandard of judicial review””

ChallengesChallenges

vaguevague overbroadoverbroad ““chilling effectchilling effect”” on free flow of on free flow of

informationinformation negative impact on negative impact on ““marketplace marketplace

of ideasof ideas””

Freedom of the PressFreedom of the Press

Gathering the NewsGathering the News

generally no First generally no First Amendment right to get or Amendment right to get or receive informationreceive information

Prior Restraints ProhibitedPrior Restraints Prohibited

Near v. MinnesotaNear v. Minnesota

What About What About ““Dangerous Dangerous SpeechSpeech””??

The First Amendment does The First Amendment does not protect speech that not protect speech that creates a creates a ““clear and present clear and present danger.danger.””

What is a What is a ““clear and present clear and present dangerdanger””??

Schenck v. United StatesSchenck v. United States

The FactsThe Facts

World War IWorld War I distributed flyer urging men to distributed flyer urging men to ““assert assert

[their] opposition to the draft[their] opposition to the draft”” proposed peaceful resistanceproposed peaceful resistance charged with conspiracy to violate charged with conspiracy to violate

the Espionage Act of 1917the Espionage Act of 1917 attempting to cause insubordination in the attempting to cause insubordination in the

militarymilitary obstructing recruitmentobstructing recruitment

HoldingHolding

conviction was constitutionalconviction was constitutional nation was at warnation was at war during wartime, more restrictions of during wartime, more restrictions of

speech are permissiblespeech are permissible created the created the ““clear and present clear and present

danger standarddanger standard””

"The question in every case is "The question in every case is whether the words used are used in whether the words used are used in such circumstances and are of such a such circumstances and are of such a nature as to create a clear and nature as to create a clear and present danger that they will bring present danger that they will bring about the substantive evils that about the substantive evils that Congress has a right to prevent.Congress has a right to prevent.””

shouting shouting ““firefire”” in a crowded theater in a crowded theater

Another Another Espionage ActEspionage Act case . . . case . . .

Abrams v. United StatesAbrams v. United States (1919) (1919) conviction upheldconviction upheld Justice Holmes dissentJustice Holmes dissent

““. . . the best test of truth is the power of . . . the best test of truth is the power of the thought to get itself accepted in the the thought to get itself accepted in the competition of the market, and that competition of the market, and that truth is the only ground upon which truth is the only ground upon which their wishes safely can be carried out.their wishes safely can be carried out.””

The First Amendment The First Amendment does not protect does not protect ““fighting fighting words.words.””

What are What are ““fighting wordsfighting words””??

Chaplinsky v. New HampshireChaplinsky v. New Hampshire The complaint charged that appellant, The complaint charged that appellant,

"with force and arms, in a certain public "with force and arms, in a certain public place in said city of Rochester, to wit, on place in said city of Rochester, to wit, on the public sidewalk on the easterly side of the public sidewalk on the easterly side of Wakefield Street, near unto the entrance Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat, the of the City Hall, did unlawfully repeat, the words following, addressed to the words following, addressed to the complainant, that is to say, 'You are a God complainant, that is to say, 'You are a God damned racketeer' and 'a damned Fascist damned racketeer' and 'a damned Fascist and the whole government of Rochester and the whole government of Rochester are Fascists or agents of Fascists,' the are Fascists or agents of Fascists,' the same being offensive, derisive and same being offensive, derisive and annoying words and names."annoying words and names."

19421942 conviction upheldconviction upheld

Fighting Words doctrine still Fighting Words doctrine still recognizedrecognized

But only But only ““useuse”” has been has been ChaplinskyChaplinsky

those which by their very utterance those which by their very utterance inflict injury or tend to incite an inflict injury or tend to incite an immediate breach of the peaceimmediate breach of the peace

More recently . . . More recently . . .

personally abusive epithets which, when personally abusive epithets which, when addressed to the ordinary citizen, are, as a addressed to the ordinary citizen, are, as a matter of common knowledge, inherently matter of common knowledge, inherently likely to provoke violent reactionslikely to provoke violent reactions Cohen v. CaliforniaCohen v. California (1971) (1971) words must be directed to an individual, not a words must be directed to an individual, not a

groupgroup

reasonably incite the average person to reasonably incite the average person to retaliateretaliate City of Garfield Heights v. Yaro City of Garfield Heights v. Yaro (Ohio App. 1999)(Ohio App. 1999)

The Current StandardThe Current StandardBrandenburg v. OhioBrandenburg v. Ohio

does the expression advocate the does the expression advocate the use of illegal force or violence?use of illegal force or violence?

is it directed toward actually inciting is it directed toward actually inciting such illegal conduct?such illegal conduct?

would the advised conduct be would the advised conduct be imminent, or immediate?imminent, or immediate?

is the expression actually likely to is the expression actually likely to produce that illegal conduct?produce that illegal conduct?

Speech that Threatens National SecuritySpeech that Threatens National Security

New York Times v. United StatesNew York Times v. United States

United States v. The Progressive, United States v. The Progressive, Inc.Inc.

Wartime Access RestrictionsWartime Access Restrictions JB Pictures, Inc. v. DODJB Pictures, Inc. v. DOD

Speech & Personal InjurySpeech & Personal Injury

In general: may be liable for injury if In general: may be liable for injury if conduct negligentconduct negligent

Negligence -- failure to exercise reasonable Negligence -- failure to exercise reasonable care or due carecare or due care legal duty is owed (always exists where is a legal duty is owed (always exists where is a

reasonably foreseeable risk of direct harm)reasonably foreseeable risk of direct harm) legal duty is breached (the negligent conduct)legal duty is breached (the negligent conduct) breach was proximate cause of resulting injurybreach was proximate cause of resulting injury

As a general rule, publishers As a general rule, publishers and broadcasters are not and broadcasters are not considered liable for harm considered liable for harm caused to individuals by caused to individuals by advertised products and advertised products and services.services.

Are we certain we know what Are we certain we know what speech is?speech is?

Cohen v. CaliforniaCohen v. California