Historical Development

1
Historical Development

• The British devised several means to restrict
  press
  
• Seditious libel laws punished citizens who
  criticized the government
  
• Licensing/prior restraint laws required
  printers to obtain prior approval from the
  government or church before printing
  
• Bonds money deposited with the government that
  would be forfeited if the government felt
  material should not be printed
  

2
Historical Development

• Freedom of the Press in Colonial America
• Licensing lasted until the 1720s in the colonies
• Taxation, though part of the colonial system, was
  often ignored by printers

3
Historical Development

• Freedom of the Press in Colonial America
• Trial of John Peter Zenger
• Zenger was the publisher of the New York Weekly
  Journal
  
• His paper was supported by Lewis Morris and James
  Alexander, opponents of the unpopular colonial
  governor, William Cosby

4
Historical Development

• Freedom of the Press in Colonial America
• Trial of John Peter Zenger
• Zenger was jailed in November 1734 after
  publishing stories critical of Cosby
  
• Although Zenger was clearly guilty under the
  seditious libel laws in place at the time, a jury
  acquitted him

5
Historical Development

• Community Censorship Then and Now
• Before the Revolutionary War
• The content of pro-British newspapers was limited
  by community pressure after 1770
  
• Pro-British printers were attacked, their shops
  wrecked, and papers destroyed

6
Historical Development

• Community Censorship Then and Now
• Hecklers veto when a crowd or audiences
  reaction to a speech or message is allowed to
  control and silence that speech or message.

7
The First Amendment

• The New Constitution
• A Bill of Rights was not discussed until very
  late in the Constitutional Convention
  
• Many delegates thought a Bill of Rights was
  unnecessary as the state constitutions guaranteed
  such rights
  
• The Bill of Rights was introduced and advocated
  by James Madison of Virginia during the First
  Congress

8
Madisons original

• The people shall not be deprived or abridged of
  their right to speak, to write or to publish
  their sentiments and freedom of the press, as one
  of the great bulwarks of liberty, shall be
  inviolable.

9
The First Amendment

• The First Amendment to the United States
  Constitution
  
• 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

10
The First Amendment

• Freedom of Expression in the 18th Century
• Original Intent the meaning intended by the
  framers of the Constitution
  
• What did the First Amendment mean in 1791?
• No prior restraint
• No licensing
• No punishment for seditious libel

11
The First Amendment

• Freedom of Expression in the 18th Century
• Generally, freedom of expression in the late
  1700s protected the rights of the speaker
  

12
The First Amendment

• Freedom of Expression Today
• Some scholars argue that freedom of expression
  today protects the publics right to know --
  societys right to be informed
  

13
The First Amendment

• Freedom of Expression Today
• Seven First Amendment Theories
• Absolutist theory
• Ad hoc balancing theory
• Preferred position balancing theory
• Meiklejohnian theory
• Marketplace of ideas
• Access theory
• Self-realization

14
The First Amendment

• Absolutist theory
• No law means no law an absolute protection
  against censorship
  
• Few Supreme Court justices have adopted this
  position (Black and Douglas)

15
The First Amendment

• Ad hoc balancing theory
• When free speech and press rights conflict with
  other important rights, courts must balance these
  freedoms
  
• Determined on a case-by-case basis

16
The First Amendment

• Preferred position balancing theory
• When balancing conflicting rights, speech and
  press are preferred given greater weight than
  other rights
  
• Today, courts use this theory more often than any
  other

17
The First Amendment

• Meiklejohnian theory
• Public Speech
• Speech or press that advances self-governance
• Should always be protected
• Private Speech
• Speech or press that addresses anything other
  than self-governance should not be protected
  not essential to self-governance

18
The First Amendment

• Marketplace of ideas
• All information and opinions should be allowed to
  compete in a marketplace, with the best ideas
  chosen from among the many
  
• This metaphor, first introduced in the Supreme
  Court by Oliver Wendell Holmes, Jr., currently
  dominates the Courts discussion of freedom of
  speech

19
The First Amendment

• Marketplace of ideas
• Critics of the marketplace of ideas say
• It allows harmful speech and speech with little
  value to be circulated
  
• Those with the most resources have more and
  louder voices in the marketplace of ideas

20
The First Amendment

• Access theory
• Free speech and press rights are not meaningful
  to citizens unless they have access to media
  outlets
  
• If media will not voluntarily allow use of
  airwaves or print, then government should force
  this access
  
• Access theory was struck down in Miami Herald v.
  Tornillo by the U.S. Supreme Court

21
The First Amendment

• Self-Realization/Self-Fulfillment theory
• Speech can be inherently valuable to a person
  regardless of its effects on others it is an
  end in itself
  
• Expressing ones identity through speech

22
The Meaning of Freedom

• Seditious Libel and the Right to Criticize the
  Government
  
• The rights to discuss, criticize and oppose the
  government is at the center of our political
  philosophy today.

23
The Meaning of Freedom

• Critical Dates in the History of Sedition Law
• 1735 Acquittal of John Peter Zenger
• 1791 Adoption of First Amendment
• 1917 Espionage Act
• 1918 Sedition Act
• 1919 Clear and present danger test
• 1927 Brandeis sedition test in Whitney
• 1940 Smith Act adopted
• 1951 Smith Act ruled constitutional
• 1957 Scope of Smith Act narrowed
• 1969 Brandenburg decreases sedition prosecutions

24
The Meaning of Freedom

• Alien and Sedition Acts of 1798
• Extended the period prior to naturalization, and
  gave the president power to detain and deport
  non-citizens
  
• Forbade false, scandalous or malicious
  publications against the U.S. government,
  Congress or the president

25
The Meaning of Freedom

• Alien and Sedition Acts of 1798
• John Adams (a Federalist) was president at time
  law was passed
  
• Law aimed at silencing criticism in Jeffersonian
  newspapers
  
• There were 15 prosecutions under the Sedition
  Act 8 of those prosecuted were editors of
  Jeffersonian newspapers

26
The Meaning of Freedom

• Alien and Sedition Acts of 1798
• Adams lost his bid for re-election in 1800 in
  large part due to his attempts at silencing
  critics with the Sedition Act
  
• The Sedition Act expired in 1801
• Jefferson, now president, pardoned all those who
  had been convicted under the Act

27
The Meaning of Freedom

• Sedition in World War I
• Espionage Act of 1917 made it a crime to
• Willfully convey a false report with the intent
  to interfere with the war effort
  
• Cause insubordination, disloyalty, mutiny or
  refusal of duty
  
• Willfully obstruct recruiting or enlistment

28
The Meaning of Freedom

• Sedition in World War I
• Sedition Act of 1918 made it a crime to
• cause contempt of or scorn for the federal
  government, the Constitution, the flag or the
  uniform of the armed services

29
The Meaning of Freedom

• Sedition in World War I
• Sedition Act of 1918
• Under the Act, the U.S. Post Office Department
  censored thousands of newspapers, books and
  pamphlets
  
• Those found to violate the Act often lost
  second-class mailing privileges or found their
  mail was never delivered

30
The Meaning of Freedom

• Sedition in World War I
• States also adopted statutes aimed at war
  dissenters.
  
• States passed criminal syndicalism statutes that
  forbid the display of a red or black flag

31
The Meaning of Freedom

• The Smith Act (1940)
• Made it a crime to
• Conspire to advocate the violent overthrow of the
  government
  
• Organize a group that advocated the violent
  overthrow of the government
  
• Be a member of a group that advocated the violent
  overthrow of government

32
The Meaning of Freedom

• Sedition Today
• In the 1990s, state sedition acts were used to
  prosecute those involved with the first World
  Trade Center bombing as they conspired to
  overthrow, put down, or to destroy by force the
  Government of the United States.
• In 2006, a federal judge allowed charges to
  proceed under the Espionage Act of 1917 when two
  former lobbyists allegedly obtained classified
  information and then communicated it.

33
Defining the Limits of Freedom of Expression

• The Clear and Present Danger Test
• Holmes in Schenck (1919) 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. It is a question of
  proximity and degree.

34
Defining the Limits of Freedom of Expression

• The Clear and Present Danger Test
• Brandeis in Whitney (1927) In order to to
  support a finding of clear and present danger it
  must be shown either that immediate serious
  violence was to be expected or was advocated, or
  that the past conduct furnished reason to believe
  that such advocacy was them contemplated.

35
Defining the Limits of Freedom of Expression

• The Clear and Present Danger Test
• Vinson in Dennis (1951)
• Clear and probable danger test
• In each case courts must ask whether the
  gravity of the evil discounted by its
  improbability, justifies such invasion of free
  speech as is necessary to avoid the danger.

36
Defining the Limits of Freedom of Expression

• The Clear and Present Danger Test
• Brandenburg v. Ohio (1969)
• The constitutional guarantees of free speech and
  free press do 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.

37
Defining the Limits of Freedom of Expression

• Real Life Violence Blaming Movies, Video Games
  and Books
  
• The Brandenburg test for incitement to violence
  has also been used in wrongful death, negligence
  and product liability suits arising from the use
  of media products

38
Defining the Limits ofFree Expression

• Real Life Violence Blaming Movies, Video Games
  and Books
  
• To justify regulations based on content, the
  strict scrutiny standard of judicial review must
  be satisfied.
  
• Under strict scrutiny, the state must prove
• It has a compelling interest of the highest order
  to regulate the content, and
  
• The regulation restricts no more speech than
  necessary to advance that interest
  

39
Defining the Limits of Freedom of Expression

• The Gitlow Ruling and the Incorporation Doctrine
• In Gitlow v. New York, the U.S. Supreme Court
  established the incorporation doctrine the free
  speech and free press clauses of the First
  Amendment are incorporated through the 14th
  Amendment due process clause as fundamental
  liberties that apply to all levels of government

40
Taxation and the Press

• News organizations are subject to ordinary taxes
  that apply generally to everyone and/or all
  businesses
  
• Taxes that specifically target and single out the
  press, however, are unconstitutuional

41
Taxation and the Press

• Taxes that discriminate against some members of a
  particular outlet within one medium are also
  unconstitutional
  
• Taxes that discriminate against the content of a
  publication are generally unconstitutional

42
Prior Restraint

• Near v. Minnesota (1931)
• Jay M. Near, publisher of the Saturday Press
  published articles that attacked city corruption
  and government officials
  
• A Minnesota statute empowered courts to declare a
  newspaper a public nuisance
  
• The Saturday Press was declared public nuisance,
  and was enjoined from printing any further
  editions

43
Prior Restraint

• Near v. Minnesota (1931)
• The U.S. Supreme Court ruled the Minnesota
  statute was an unconstitutional prior restraint
  on free press
  
• The Court also ruled that prior restraint is
  unconstitutional except in extreme situations,
  and the government carries the burden of proof to
  prove validity of exceptions

44
Prior Restraint

• Austin v. Keefe (1971)
• A community group printed and posted pamphlets
  detailing the blockbusting practices of a local
  real estate agent (Keefe)
  
• Keefe asked for a court injunction to stop the
  organization from distributing pamphlets,
  leaflets or literature of any kind in the town
  
• A state court granted this injunction

45
Prior Restraint

• Austin v. Keefe (1971)
• The U.S. Supreme Court overruled the lower court
  decision saying that the injunction did not
  narrowly rectify this particular situation but
  rather suppressed all speech by the group

46
Prior Restraint

• The Pentagon Papers (1971)
• The Supreme Court ruled the New York Times and
  Washington Post could publish historical
  documents that lead the the U.S. intervention in
  the Vietnam conflict
• The Court here did not say the Times and Post had
  a First Amendment right to print this story, just
  that the government failed to make a strong
  enough case for prior restraint

47
Prior Restraint

• U.S. v. Progressive (1979)
• A reporter gathered information from unclassified
  sources on how to build an H-Bomb to run in the
  April 1979 issue of Progressive magazine
  
• The U.S. government found out about publication
  before release of magazine, and asked courts for
  a permanent injunction against publication

48
Prior Restraint

• U.S. v. Progressive (1979)
• The U.S. District Court ruled Progressive
  magazine could be enjoined from publishing the
  article as specific details were not necessary to
  carry out an informed debate on nuclear issues
• Progressive appealed its case, but before an
  appellate court could hear the case, a Wisconsin
  newspaper ran the same story, and the government
  withdrew its case, leaving the case with little
  precedential value

49
Prior Restraint

• U.S. v. Bell (2005)
• A federal appellate court upheld a permanent
  injunction barring Thurston Paul Bell from
  promoting and selling unlawful tax advice on his
  website
• Ruled that the usually heavy presumption against
  prior restraint here does not apply to
  restriction on unprotected speech, including
  false or unlawful commercial speech