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| Free or frank speech, your duty to speak, speech is not dangerous |
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| the government cannot arrest people for no reason, there is a right to a trial. |
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| making the atmosphere anti-speech so that people don't speak. intimidate speakers by ex post facto such that they self censor |
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| helped control seditious speech in England. Judicial part of Privy Council. Vigorously pursued those who published seditious opinions |
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| censor message before it is communicated, censorship |
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| punishment of harmful speech after utterance or publication |
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| customary laws grounded in tradition. informal laws |
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| written law, formal, concrete, passed by legislation |
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| crime of criticizing the king and other government officals |
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| expressing "false" religious ideas |
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| expressing bawdy, lewd, sexually suggestive ideas |
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| applied metaphorically to government regulation of communication, speakers=merchants audience=buyers. Speaker tries to sell ideas |
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| 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 redress of grievances. |
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| William Blackstone. Ex post facto restraint, speech that might tend to disturb the public peace is illegal! |
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| prevent interfering with military efforts and draft. (Schench and Abrams) |
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| only stop speech if it actually poses an ovbious and immediate danger to public saftey. (Holmes brings it up in Schenck, applies it in Abrams |
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| imposed fines and imprisonment for speech that advocated disloyalty to military and violent overthrow of the government. (Dennis and Yates) |
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| when the gravity of the situation is great enough, any speech that TENDS to disrupts government activity can be prohibited (Dennis) |
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| Abstract Ideas/Concrete Actions |
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| Yates case; cannot be charged for teaching ideas, only for making actions. Most Smith Act violators are let go. |
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| speaker intentionally incites, speech will result in dangerous illegal action, action has to be imminent: likely and immediate. (Brandenburg) |
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| does not directly criminalize speech that is critical of the government, does allow increased surveillance, which causes a chilling effect |
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| Starts off as words that provoke others to anger/violence, words that inflict injury on the sensibilities of others, words that TEND to incite an immediate breach of the peace (Chaplinsky) Then: throw out sensibilities, spoken face to face confrontations that are likely to create an immediate breach of peach (Cohen) |
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| part of two level theory, would a reasonable person understand the meaning of the law |
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| part of the two level theory; does the law cast such a wide net that it regulates speech that is supposed to be guarenteed? |
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| expression that is not relevant to democratic processes, the exposition of ideas, to the search of truth. No value to society, not protected by 1st amendment, may be regulated. |
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| speech that is important to the democratic process, exposition of ideas, and search of truth, protected by 1st amemndment |
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| process for deciding freedom of speech cases in lower courts, is the law vague and overbroad (throw out) not does the law regulate level 1 (worthwhile) or level 2 (worthless) speech? level 1=use degree of danger tests, balancing tests, or others. Level 2=regulate the speech. |
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| if you say or publish, assit or aid in that which is false, malicious against the government you are dead. Dealt with French in US and those who opposed Adams. |
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| dangerious precedent formed by Feiner v. New York, if the hecler doesn't like what the speaker is saying just incite supporters to fight and the speaker gets arrested |
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| "Fuck the Draft" changes fighting words def. to face to face confrontation, not just offending sensibilities. |
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| Cognitive and Emotive message |
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| political speech may have both cognitive and emotive content. fuck the draft. |
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| author of Areopagitica 1644. argues prior restraint is wrong. Censorship: a tool used by the gov't to promote their own self interest, unethical b/c it weakens citizens right to choose, ineffective b/c the supression of an idea only makes it more attractive, harmful because it discourages people in quest for truth |
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| author of Commentaries on the Laws of England. argues prior restraint is wrong, gov't ought only to be allowed to punish speech after the fact, ex post facto restraints on speech that TENDS to distrub public. Bad Tendency |
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| wrote On Liberty, censored opinion may be true and the accepted opinion may be in error, even truth needs to be challenged and tested, else it becomes dead dogma, there is probably some truth in all opinions. Freedom of speech is justified. |
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| announces new standard away from bad tendency to determine the danger posed by speech. Not just tencency but a clear and present danger. Justice Holmes. |
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| behind the idea of the Bill of Rights to be added to the constitution. Father of the Bill of Rights |
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| Socialist candidate for the prez 1900, 1904, 1908, 1912, convicted in 1918 of seditious anti war speech (espionage act) 1920 ran for prez in prison. |
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| entered WWI, espionage act 1917, Schenck (socialist) mailed anti-draft leaflet, guilty for interfering with draft. Espionage act constitutional because it tends to endanger national security. *Justice Holmes announces but does not apply clear and present danger* |
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| War won, Red scare, similar to Schenck. Violated espionage act with antiwar leaflet. split the court, majority-tends. Holmes and Brandeis dissent, *apply clear and present danger, and talk about marketplace of ideas* |
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| red scare. NY passes criminal anarchy statute. people who get together to overthrow government in trouble! Gitlow, socialist pamphlets, arrested. Split jury again with Holmes and Brandeis *State law must be consistent with First Amendment* |
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| WWII paranoia! Smith Act of 1940, banned speech that advocated overthrow of government, used 2 times in war, after still paranoid. Dennis, communist, arrested because of conspiracy to overthrow gov't. *When gravity of the situtation is great enough=TEND* Justices Black and Douglas dissent. |
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| not so much paranoia, convicted under Smith Act, teaching Marxism. *Distinction between teaching abstract ideas and advocating concrete action* Have right to teach, Most Smith Act prosecutions dismissed. |
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| Vietnam war, leader of KKK in ohio spoke at rally to TV crew, threatened revengeance against government. convicted under ohio's criminal syndicalism act. Did not pose real or serious threat *New Standard- Incitement* |
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| Chaplinsky v New Hampshire 1942 |
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| Chaplinksy a Jehovah's Witness distribute pamphlets, crowd gets rowdy, police do not arrest but take Chaplinsky away, City Marshall gets in Chaplinsky's face and Chaplinksy calls him a damn fascist. Arrested for offensive speech. *established two level theory for testing freedom of speech cases, clarified definition of fighting words. |
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| fought in WWII felt need to help others, for Civil rights. had to tell people that civil right supporter speech was moved. Said things that tend to incite riot, level 2 worthless speech (not protected by 1st amendment) Justices Black and Douglas dissent. Dangerous precedent Heckler's Veto. |
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| Cohen walks into courthouse wearing a jacket that says Fuck the Draft. Arrested. Claim it's level 2 worthless, offensive, obscene. *court narrows the definition of fighting words - face to face create breach of public peace, worthwhile speech may have both cognitive and emotive content* |
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| balance right of free speech w/the potential harm of free speech. Gag order on trials. Right of press to cover trials, right of people to get fair trials. Which wins!? |
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| In 18th and 19th centuries what was used to regulate speech in US and England? |
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| Dissent by permission, prior restraint, ex post facto restraint |
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| What are the two legal gurantees that are required in order to have freedom of speech? |
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| all citizens must have the right to speak, freedom for arbritary arrest |
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| If a person were to threaten the life of the prez is that protected by 1st amendment? |
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| If a person were to reveal the names of intelligence agents is that protected by 1st amemdment? |
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| If a person were to advise an eligible youth against responding to the draft is that protected by 1st amendment? |
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