Chapter Two

1. Chapter Two The Legacy of Freedom

2. Objectives • To understand the historical development of free expression in America. • To define the limits of free expression. • To understand theories that affect freedom of expression rulings.

3. We often take freedom for granted… • Our freedoms are unique in the world; no other country has a First Amendment • But it was not always the case in the U.S.—earlier generations worked for our freedom of speech

4. Censorship in England • Very common as the Church of England wanted to silence Puritans and other dissenters • Licensing system for printers as early as 1530; gov’t could review and pre-censor materials

5. John Milton • Areopagitica: 1644, eloquent defense of free expression • Censorship unnecessary because true ideas would prevail over false ones • Genesis of “marketplace of ideas”

6. John Locke • Social contract: society enters into a contract to be governed, and can cancel the contract if the government does not fulfill its part of safeguarding natural rights • Natural rights: right to life, liberty, property ownership…AND freedom of expression

7. John Stuart Mill • Expanded on Milton’s marketplace of ideas theory • On Liberty (1859) defined limits of freedom and authority • Free speech is important because: • Opinion may contain truth, andwe must hear • Particle of truth in a wrongopinion • Public needs to defend truthas truth, not as prejudice • Even commonly held opinionsneed defending to stay vital

8. Seditious Libel:criticism of the government • Very common in England to deter criticism • Common law rule: “For it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government, than to endeavor to procure animosities, as to the management of it; this has always been looked upon as a crime, and no government can be safe without it be punished.”

9. Freedom in the colonies:the Zenger trial • 1735: John Peter Zenger, printer in NY, printed sedition against NY royal governor William Cosby (just PRINTED it) • Zenger’s attorney, AndrewHamilton of Philadelphia, appealedto jury: it should ignore maxim “the greater the truth, the greaterthe libel” and instead decide foritself if the statements were true—and if so, acquit Zenger • Zenger won! Hamilton’s pleaworked!

10. What does the First Amendment mean? • Millions of words have been written trying to figure that out! • We KNOW that Congress DOES make laws…which laws are OK? • Which restrictions areconstitutionally acceptable,and which are not? • This is what we are goingto spend the semestertrying to determine!

11. Early First Amendment questions: Alien and Sedition Acts (1798) • Passed hurriedly to silence political dissent in preparation for an undeclared war on France • Truth WAS recognized as a defense, per Zenger • Fine of up to $2000 or two yearsin jail for “writing, printing,uttering or publishing any false,scandalous and malicious writing…against the government of the U.S.” • 25 arrests, 15 indictments, all atopponents of John Adams andthe Federalists

12. Do we still have these acts? • No…Thomas Jefferson hated them, so when he ran for office and won in 1800, he made them an issue; people hated them too • When he was inaugurated,he pardoned all thoseconvicted under the acts • Acts expired in 1801

13. Scholarly views • Leonard Levy: the founders intended for there to be open, robust debate on all topics of public interest (1985 reversal of 1960 narrow interpretation) • Zechariah Chafee: there is balance point where freedom of speech ends, and that is when it is clear that expression imperils nation (where words incite unlawful acts) • Alexander Meiklejohn: only expression that incites unlawful acts should be punished, and only after act happens and speech can be connected to act

14. 19th-century press freedom • Marbury v. Madison (1803): established that courts have power to say what law is, and to declare law unconstitutional if it does not agree with Constitution • Why do we care? This precedent set the importance of the Supreme Court and gave it power to declare laws of Congress unconstitutional!

15. 19th century: Civil War amendments • Most important for us: Fourteenth Amendment: • “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” • Incorporation Doctrine: 1st Amendment applies to states (and all levels of government) through 14th

16. 20th century: Sedition’s back • Espionage Act of 1917, expanded by Sedition Act of 1918: prohibited expression that might hurt the WWI effort • 2,000 arrested, 1,000 convicted • Why do we care? Earliest interpretations of the First Amendment arose from these cases!

17. Espionage/Sedition Act • Schenck v. U.S. (1919): Charles Schenck, gen. sec. of Socialist Party, convicted of leafletting to military draftees • Oliver Wendell Holmes upheld conviction, wrote famous words • “The question in every case is whether 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 substantive evils that Congress has a right to prevent”

18. Significance of clear and present danger test • Supreme Court said the First Amendment is not absolute • Holmes wrote, there must be some test that determines when government may abridge • “Falsely shouting fire in a crowded theatre” example • Replaced bad tendencytest—forbid any speech that put public officials/laws/institutions in bad light

19. First Amendment fears • Gitlow v. New York (1925): Benjamin Gitlow wrote “Left Wing Manifesto” and was convicted of violating NY state sedition law • Court upheld conviction BUT, more importantly, established that because of 14th Amendment, states cannot abridge free speech rights • 14th Amendment applies almost all the rights inBill of Rights to states • Not incorporated:2nd, 3rd, part of 5th, and 7th

20. “More fear” • Whitney v. California (1927): Anita Whitney (granny in tennies) convicted of violating CA criminal syndicalism act by membership in Communist Labor party • Court affirmed her conviction, but Brandeis wrote: “If there be time to expose through discussion the falsehood and fallacies,to avert the evil by theprocess of education, theremedy to be applied ismore speech, not enforcedsilence” • Free speech should besuppressed ONLY in emergencies!

21. Post-war sedition: Smith Act (1940) • Made it a crime to advocate violent overthrow of government or belong to a group advocating that position • Dennis v. U.S. (1951): Eugene Dennis convicted of being Communist and conspiring to overthrow U.S. govt. by force • Court upheld the conviction andadopted revised CPD test:“courts must ask if the gravity ofthe evil, discounted by itsimprobability, justifies suchinvasion of free speech as is necessary to avoid the danger”

22. So what about CPD now? • Yates v. U.S. (1957): yet another conviction of Communists and a new version of CPD; but Court threw out convictions this time • Smith Act could only be used if there was evidence that advocacy and teaching was of concrete action meant to overthrow government, not mere philosophy or abstract doctrine • Importance of action versus mere thoughts or discussion vs.

23. The 1960s • Brandenburg v. Ohio (1969): man convicted of violating OH criminal syndicalism act by speaking at a KKK rally (send niggers back to Africa and Jews back to Israel) • New CPD test: Imminent lawless action—the action produced by the speech has to be IMMINENT, not just a mere call for action • Brandenburg’s conviction reversed, but some activists still angry

24. Interpreting the Constitution: which right is more important? • Absolutist theory: No law means, no law. • Balancing test: balance conflicting rights • E.g., Clear-and-Present-Danger Test • “Preferred position” test: some rights are more important than others • Meiklejohnian: First Amendment protection so that democracy can function. • Access theory: right to speak and publish freely.

25. Conclusion • Freedom is decided by the changing mood of the times. • First Amendment freedoms can be curtailed under specific circumstances.

26. Objectives • To understand the historical development of free expression in America. • To define the limits of free expression. • To understand theories that affect freedom of expression rulings.

27. Chapter Two The Legacy of Freedom