Ch 2 - Early Freedom of Expression

CHAPTER 2 -

Early Freedom of Expression
Star Chamber- a secret room for trials
Monarch made decision.
Abolished by Parliament 1641

Seditious expression?
Crime of creating a revolt, disturbance or violence against lawful civil authority. Limited to organizing and encouraging opposition rather than the ACT of overthrowing authority (that would be treason.)


Today Freedom of Expression means whatever the Supreme Court determines it to mean.
Controlled speech by taxes, licensing, (permissions to publish) and sedition laws.


Truth as a Defense
Zenger – 1734
the governed have a right to criticize those who govern


First Amendment

1776 - Declaration of Independence

1781 - Articles of Confederation. . .

1791 The Bill of Rights was ratified to guarantee individual protections from Congress.


First Amendment theories:

Absolutist theory:
Absolute freedom for political expression. “Congress shall make NO law. .“

Ad hoc Balancing theory:
Each case – is there a conflict between rights of public/rights of government

Preferred Position balancing theory:
Some Constitutional freedoms are more important than others. (my right is more important)

Mieklejohn Theory:
Late 1940s. Expression that relates to self-government is absolutely protected. Other expression must be balanced against other rights and values. (anything that creates more discussion about the government is absolutely protected)

Marketplace of Ideas Theory:
If all ideas are allowed to be presented, the truth will rise to the surface

Access Theory:
“Freedom of the press belongs to the man who owned one.”

Self Realization Theory:
The speech may have no meaning for anyone but the speaker. (Manifesto’s) "You believe it's true. You said it."


Two Times:
Criticize the govt. & broadcast time for political candidate

Fourteenth Amendment:
Duel citizenship
The Haves and the Have-nots
Forces states to comply with the federal decisions



Alien and Sedition Acts

Mid - 1800s Southern States passed variations of sedition laws to control Abolitionists. WWI- Sedition Laws resurfaced as super patriotism ruled the country

Espionage Act of 1917 (amended in 1918.) Criminal to criticize war effort.

1919 - Us v Schenk –urged men to avoid draft. Supreme Court - speech less protected during war.



1st and 14th amendments applied together:

1925 - Gitlow v. NY – First time Bill of Rights applied to STATES. “State shall also make no law. . ..” Gitlow was publishing/trashing the Gov. of New York, so the Gov shut Gitlow down. They filed "amicus briefs" friends of the court. First time the 14th amendment was applied to a state.

1931 – Near v. Minnesota - Supreme Court DID strike down Minnesota state statute that permitted prepublication restraints on “malicious, scandalous, and defamatory” publications.


Censorship

Smith Act of 1940 - Communists were deemed “sufficient evil” for Congress to control.

1945 - Dennis et al. v US - first Communists arrested. Advocated violent overthrow of gov.

1957 - Yates et al. v US - Supreme Court- advocating overthrow of a government not sufficient to sustain a conviction.

1969 - Brandenburg et al. v Ohio - Last sedition case heard by the Supreme Court. Must not only advocate and provide means, but also rev up the crowd to revolt. "Let's go get guns! Lets go kill them all!"

Such cases were judged by "strict scrutiny"
1. Compelling gov't interest
2. Narrowly tailored to service this interest



Resulted in “Brandenburg” test: (Standards would likely still be used today.)

1. Intent to incite violence?

2. Time between speech and action must be very close.

3. The conduct itself must be a lawless action. (Action must be illegal)

4. Is the action substantially likely to occur based on the speech.







CONTENT REGULATION

Government CAN restrict in some cases. .

strict scrutiny from judges.

Government must show:

1. justified by a compelling government interest
2. narrowly drawn to impose the minimum restrictions on freedom of expression.


1984 – Texas v. Johnson. Johnson burned a flag in protest of government policies.

Supreme Court determined 1. no compelling government interest.
2. Overbroad to restrict everyone


Can’t pass regulations that don’t apply equally.

Strict Scrutiny
Strict Scrutiny requires compelling gov. interest
and law narrowly drawn

Content neutral
laws that apply to all without regard to content

Test for Vagueness and Overbredth


** Read Chapter 3 ** ..and one and two if you haven't already

We turned in Briefs earlier in class