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The First Amendment. September 29. Freedom of the mind The First Amendment Judicial theories. The reason for the freedom. Search for Truth The Enlightenment edition Political Participation Campaign and vote Check on government Social Stability The safety valve effect

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the first amendment

The First Amendment

September 29

Freedom of the mind

The First Amendment

Judicial theories

the reason for the freedom
The reason for the freedom
  • Search for Truth

The Enlightenment edition

  • Political Participation

Campaign and vote

Check on government

  • Social Stability

The safety valve effect

  • Individual Growth

The Enlightenment version

the first amendment an artifact of freedom


“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.”

The First Amendmentan artifact of freedom
parsing the third amendment
Parsing the Third Amendment


  • Congress
    • The Civil War’s14th amendment
    • Government action v. private action
  • shall make no law abridging
    • Prior restraint? Punishment after the fact?
    • What about enhancing free speech?
  • the freedom
  • of speech
    • conduct - gathering and distributing?
    • conspiracy? intimidation? threats?
    • symbols?
    • entertainment, art, porn, obscenity?
  • or of the press
    • how is the role of the press related to freedom?
supreme court theories make no law abridging freedom
Supreme Court Theoriesmake no law abridgingfreedom
  • Bad Tendency
  • Clear and Present Danger
  • Balancing
  • Symbolic conduct
  • Positive
  • Location
  • Categories

Better change before seeing pretty Lois, Clark

bad tendency theory
Bad tendency theory
  • Some have thought, particularly in the 19th century that speech that tends to do harm should not be protected by the First Amendment.
    • This creates a very short range of protection and is a somewhat dated idea today. But you can see it working in cases where the court speculates about potential evils that might happen if the speech is tolerated.


speech / press

clear and present danger
Clear and present danger
  • Freedom of speech and press extends to a point where there is the imminent danger of lawlessness that is likely to succeed and which government has a duty to prevent.
    • Suggested by Justice Holmes in 1919 as a way to expand the limited protection afforded by a bad tendency approach.


balancing theory
Balancing theory
  • Free speech rights should be weighed against other values in the interest of justice.
      • Balancing gives rise to interesting problems:
      • How do you assign weights?
      • Should the First Amendment be in a preferred position?
      • How compelling should be the need?
      • How closely should you scrutinize?



  • Minimum scrutiny
    • The content of the speech is of no particular political or social value, such as obscenity,child pornography, “fighting words,” or conspiring to commit a crime. Some government interest.
  • Intermediate scrutiny
    • The government’s concern is primarily about conduct unrelated to the content of the speech and the speech is especially hardy (e.g. advertising) or the speech is diluted by action (e.g. marching in a demonstration). Government’s interest must be “substantial.”
  • Strict scrutiny
    • The content of the speech is central to the First Amendment’s concerns about democracy. See Cohen v. California. Government’s interest then must be “compelling.”
symbolic speech theory
Symbolic speech theory
  • Expressiveconduct should be treated differently from expressivespeech. Control of the conduct can be allowed, even if it abridges the speech, but only if the regulation controlling the conduct is limited to that which is necessary to further a substantial government interest unrelated to the expression.
positive theory
Positive theory
  • Free speech is a right that requires government to be energetically active in its efforts to get information to people and to make sure there is always a public forum for the exchange of ideas and controversy. For example:
    • Labeling on food and medicine
    • SEC rules on disclosure to investors
    • Freedom of Information requirements for government
    • Open government meetings and courtrooms
location and forum theories
Location and forum theories
  • The First Amendment protects only speech and press, it does not protect the time, manner and place of speech or press from reasonable restrictions.
  • Closely related are theories that make distinctions based on the function of the place, for example, schools, military bases and prisons cannot be absolutely free places.
  • Public, limited, non-public and private forums.
speech category theory
Speech category theory
  • Not all speech is of equal value. Some types of speech are more important than other types of speech. At the core of the First Amendment is “political speech.” It gets the greatest amount of protection. Other forms of speech are protected to a lesser extent depending on their value to society.
    • Can some speech types be completely unprotected?
      • obscene speech
      • imminently dangerous speech
      • speech created by abusing children (child porn, for example)
      • blackmail, extortion, perjury, false advertising, conspiracy
      • fighting words
      • heckler’s veto
a first amendment model
A First Amendment model

Clear & present





Core Speech





the first amendment1

The First Amendment

October 1

Freedom of the mind

The First Amendment

Disruptive Speech

And prior restraint

getting down to cases the meaning of the first amendment
Getting down to casesThe meaning of the First Amendment
  • Near v. Minnesota (1931) - an injunction is a prior restraint

Sitting left to right: McReynolds, Holmes, Hughes, Van Devanter, Brandeis.

Standing left to right: Stone, Sutherland, Butler, Roberts

near v minnesota 1931
Near v. Minnesota (1931)
  • Facts
    • Saturday Press was a newspaper largely devoted to publishing scandal - not all of it true. It was anti-Catholic, anti-Semitic and racist and in violation of a state statute.
  • Issue
    • Is a state statute providing for the permanent injunction of a newspaper consistent with the First Amendment?
talking points
Talking points
  • The doctrine of prior restraint
    • William Blackstone
  • Attacking a state law on federal grounds
    • Jurisdiction of the Supreme Court
    • Any person who shall be engaged in the business of regularly publishing a malicious, scandalous and defamatory newspaper is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined.

Minnesota Statutes, 1927, 10123-1 to 10123-3.

Jay Near

On to Miami

abridging speech
Prior Restraint? What’s the alternative?

Sir William Blackstone and the meaning of freedom of the press:

“No Prior Restraint”

Abridging speech
alternatives to prior restraint
Criminal liability for harms caused by words

Contempt of court

Criminal speech

fines, jail, forfeiture

Civil liability for harms caused by words


Breach of contact

Alternatives to prior restraint
a legal doctrine is generally not developed in a single case but over time
A legal doctrine is generally not developed in a single case - but over time
  • Schneck v. United States (1919)
  • Abrams v. United States (1919)
  • Gitlow v. New York (1925)
  • Whitney v. California (1927)
  • Dennis v. United States (1951)
  • Yates v. United States (1957)
  • Brandenburg v. Ohio (1969)
  • For example: A clear and present danger
    • From Schenck to Brandenburg, from 1919 to 1969









clear and present danger an ongoing conversation
Clear and present dangeran ongoing conversation

Learned Hand

Louis Brandeis

Oliver Holmes

Hugo Black

brandenburg v ohio 1969
Brandenburg v. Ohio (1969)
  • Facts
    • Armed KKK organized a speech and rally on a farm
      • Burning cross, white hoods, calls for “revengence”
    • The episode was televised by local TV news
    • KKK leader, Clarence Brandenburg, was arrested for violating an Ohio statute forbidding the advocacy of terrorism
    • Issue
      • Does a statute forbidding or punishing as a crime the advocacy of terrorism conflict with the First Amendment guarantee of free speech?

Hamilton County, Ohio, 1964

talking points1
Talking points
  • Court reverses Brandenberg’s conviction and finds unconstitutional the Ohio Criminal Syndicalism Act.
  • Court adopts in this non-war context the Holmes/Brandeis view: Political/social speech - however hateful and offensive -is protected from punishment unless there is imminent danger of lawless action.
  • This is the Incitement Standard - where to draw the line. When the danger is clear and present.




brandenberg v ohio 1969
Brandenberg v. Ohio (1969)
  • “... constitutional guarantees to not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”
a first amendment model1
A First Amendment model

Clear & present





Core Speech




national security personal security

National securityPersonal security

October 6

Imminent and likely danger

Foreseeable danger

national security clear and present danger
National Security clear and present danger
  • New York Times v. The United Sates (1971)
  • The United States v. Progressive

Daniel Ellsberg

new york times v u s
New York Times v. U.S.
  • Facts
    • Both the Times and the Washington Post publish parts of an official (but secret) history of U.S. involvement in Vietnam. Not a pretty picture for the U.S.
      • Government seeks to enjoin publication
    • Issue
      • Does the First Amendment protect the publication of a secret, embarrassing report leaked from the Pentagon?
talking points2
Talking points
  • The presumption is that a prior restraint is unconstitutional, see Near v. Minnesota, but
    • Some exceptions

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not “protect a man from an injunction against uttering words that may have all the effect of force. These limitations are not applicable here.”

- Charles Evans Hughes

  • None of these apply here. So the issue is how clear and present is the danger? Is the danger sufficient to overpower a presumption against prior restraint?
  • No. The state has not proven imminent danger to the USA.
u s v progressive magazine
U.S. v. Progressive magazine
  • Facts
    • Progressive plans to publish about how easy it is to find information in the USA for building a hydrogen bomb.
    • Atomic Energy Commission objects, saying there are too many details in the article. Federal statute prohibits publication. AEC wants the courts to enjoin publication.
  • Issue
    • Is the risk so great that the speech should be prohibited?
talking points3
Talking points
  • Your are the judge
    • How do you want to be wrong?
      • Your mistake was to give too much protection to free speech and the world blows up
      • Your mistake was to give to little protection to free speech and the world is saved
  • What if you really get it wrong?
      • Your mistake was to overestimate the danger and sabotage the First Amendment when, as it turns out, nothing much would have happened anyway.
personal security
Personal security
  • Rice v. Paladin Enterprises
    • Instructions to a killer
  • Soldier of Fortune
    • Advertising killers for hire
      • More than once
  • Olivia N. v. NBC
    • Imitation of a rape scene
      • no incitement
      • not foreseeable
personal security1
Personal security
  • Hateful speech
  • Fighting words
  • True Threats
  • Compelled Speech
the weirum case
The Weirum case
  • Wrongful death case, but the issue is “negligence” (maybe even edging toward recklessness).
    • Duty
      • Arising from history, custom and practice, morals and justice
      • To act as a reasonably prudent person in avoiding foreseeable harm to others
    • Breach
    • Causation
    • Damage
      • Attributable to the breach