Freedom of Speech Test 1 – Flashcards

The term "case law" is sometimes used as a synonym. Common Law is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.

Seditious libel is alleged false written comments against the government or state

Expression--usually speech or writing--critical of the government or its officers, laws, or policies. Expression that allegedly promotes disaffection, hatred, or contempt toward the government, including that which urges public disorder or rebellion. Not to be confused with treason, which consists of overt ACTION against the government.

A type of defamation. Libel traditionally referred to printed defamation, whereas slander referred to spoken defamation. Because a defamatory statement made over the broadcast media reaches a large audience, it is treated as libel.

A type of defamation. Slander traditionally referred to spoken defamation, whereas libel referred to printed defamation.

Blasphemy is an attack on God, obscenity is an attack on moral values

This test permits speech to continue until a danger develops that is both obvious and immediate Schenck v. United States. (refines the bad tendency test)

This test allows government to stop or punish speech early in its utterance on the grounds that it has a "tendency" to create a serious problem sometime in the future. For this reason, it is sometimes described as a "nip-it-in-the-bud" approach to censorship. Used in Abrams v United States, overturned in Brandenburg v Ohio (before clear and present danger test)

Whitney v California "time to answer" test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion

"Imminent lawless action" is a standard currently used that was established by the United States Supreme Court in Brandenburg v. Ohio (1969), for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v. United States (1919), and overruled Whitney v. California (1927), which had held that speech that merely advocated violence could be made illegal. Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely.

The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights. 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 Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by Southern states, which were forced to ratify it in order for them to regain representation in Congress.

(organized crime) Brandenburg V. Ohio - Makes it hard/impossible for criminal syndicate prosecutions to take place. Overturning Whitney means that organization of any group is a protected activity

1917 makes it illegal to engage in "disloyal, profane, scurrilous, or abusive language" against the government (important for Edward Snowden)

The Naturalization Act increased the residency requirement for American citizenship from 5 to 14 years. (1798) The Alien Friends Act allowed the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States" at any time, while the Alien Enemies Act authorized the president to do the same to any male citizen of a hostile nation, above the age of 14, during times of war. (1798) The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds.

National Defense Authorization Act. Created a basis for indefinite detention within the U.S. Does not require legal proceedings prior to detention Law explicitly authorizes the detention of those who pose a significant threat to the United States

Abrams V. United States Leafletting - the practice of producing and distributing leaflets, was an important means of advancing political positions Espionage Act of 1917 - makes it a crime to interfere with the United States efforts in World War I Two leaflets - One denounces the U.S. deployment of Troops in Russia (which was not true). The other denounces the U.S. production of weapons to be used to stymie the Russian Revolution Abrams V. United States- Decision 7-2 majority decision that the defendants freedom of speech was not violated Justice Holmes wrote a dissent that has been an important part of the case law defending the first amendment Abrams V. United States - Standard Majority held that the publications made by the defendants violated the Espionage Act of 1917 and the Sedition Act of 1918. The ruling applied the bad tendency standard arguing that the leaflets had a bad tendency toward interfering with pursuing the war effort Affirms bad tendency - rejects the tendency towards more speech Abrams V. United States - Implications Ultimately works both ways: Affirms bad tendency doctrine Holmes dissent sparks a line of argument that works to expand free speech Clear and Present Danger Vs. Bad Tendency

Brandenburg V. Ohio (1961) - Facts The KKK in Ohio led by Clarence Brandenburg organized a rally/meeting and invited several newspapers. At the meeting hate speech was voiced against persons of color and jews. The claim was also made that the government was trying to suppress the Caucasian race Lower courts very dismissive of the arguments-tests established in Whitney, Schenck, Gitlow, and Dennis cases had proved that such speech had a bad tendency Brandenburg V. Ohio - Decision The court issued a unanimous Per Curiam decision Overturned the Whitney decision Basis for the ruling was that the speech while objectionable, ought to be protected on the same ground as argued by Black in the Yates decision Concurrence by Judges Black and Douglass defending free speech absolutism Brandenburg V. Ohio - Rule New standard created "imminent lawless action" test Any speech which does not prompt persons to engage in lawless action at the time of the speech may not be regulated Sets precedent against prior restraint based on content (Can't regulate speech because you dislike what is being said) Douglass also defends symbolic speech in his concurring opinion ex. cross burning, flag burning Chilling effect Brandenburg V. Ohio - Implication First case decided on the lines of free speech absolutism Allows for protection of hate speech Makes it hard/impossible for criminal syndicate prosecutions to take place Overturning Whitney means that organization of any group is a protected activity

Cohen V. California - Facts Cohen arrested for wearing a jacket that said "F*ck the Draft" The law was a local ordinance that prohibited disturbing the peace Happens in the context of Vietnam, with draft dodging well publicized (if not as common as one might think) Cohen V. California - Decision 5-4 Decision Majority argues that the wearing of the jacket constitutes a form of speech, or "speech plus" Is not a special category of speech, and does not constitute "fighting words" Thus the broad reach of California's laws constitute a restriction on the marketplace of ideas vulgarity is a side effect of passion states should not be able to censor drawing the line is hard Cohen V. California - Rule Functionally upholds imminent danger test Distinction between speech and speech plus first played with Concludes that the standard for censorship must be much higher than indicated in California law Cohen V. California - Implications Speech-Upholds anti-war speech (hedge against the mindset behind the espionage act) Speech-plus: initially provides a broad interpretation of what counts as speech. The majority opinion perhaps is more involved in freedom of expression Post-Cohen Freedom of speech Espionage Act Criminal Syndicate Laws Functionally abolished (RICO exception) Attempts to regulate protest/subversive speech based on content are legal non-starters Rise of Time/Place/Manner restrictions

Dennis V. United States (1951) - Facts Communist Party USA General Secretary Smith Act Trial Defense was 3 fold: We are a regular party and peaceful Capitalism is bad, trial is rigged Platform to espouse Communism Dennis V. United States - Decision 6-2 with two concurring opinions Hugo and Black write separate dissents Adopts Learned Hand's 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 necessary to avoid the danger." Dennis V. United States - Rule Clear and probable danger prevails Black sets a precedent for first amendment protection First utterance of no prior restraint Dennis V. United States - Implication The case started the line of argument in defense of free speech absolution Upheld clear and present danger, although the change to probable danger sets a slightly higher standard Severely curtails speech that is geared towards advocacy of communism

FIske V. Kansas Fiske distributes pamphlets and publicly advocates for the preamble to the constitution of the IWW "That the working class and the employing class have nothing in common, and that there can be no peace so long as hunger and want are found among millions of the working people and the few who make up the employing class have all the good things of life.Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production, abolish the wage system. Instead of the conservative motto, "A fair day's wage for a fair day's work," we must inscribe on our banner the revolutionary watchword, "Abolition of the wage system." By organizing industrially we are forming the structure of the new society within the shell of the old. Fiske V. Kansas - Decision 9-0 in favor of Fiske, that Fiske had a right to 14th Amendment protection, and that the states law was repugnant to that protection 14th Amendment basis for the case resolved that the Criminal Syndicate Law was too far reaching Fiske V. Kansas - Rule State can not enact a law that limits speech which is not indicative of criminal conduct Does not remove bad tendency...

Gitlow V. New York Benjamin Gitlow - a member of the Socialist Party of America Charge is "Criminal Anarchy". Under a 1902 law that made it illegal to advocate for the overthrow of the state Had written a "Left Wing Manifesto" that advocated radical social change Gitlow V. New York - Decision 7-2 decision - holmes and Brandeis dissent Argue that this speech did not pose a clear and present danger, because while the speech had a bad tendency, the group making it was so weak that there was no danger The nuance, that Holmes and Brandeis defend, "Imminent lawless action", becomes the basis for future decisions Gitlow V. New York - Standard Clarifies "Clear and Present Danger" Embraces Bad Tendency Speech advocating unlawful overthrow of the state is not protected Gitlow V. New York - Implications Supreme Court can rule on state laws- 14th Amendment Bad tendency doctrine means subversive publications are not acceptable Differing understandings demonstrate that "Clear and Present Danger" is not necessarily a better test

Hedges V. Obama - Facts 9/11-U.S. embarks on a global war effort This is backed by several pieces of legislation that restrict freedom of speech The most recent is the National Defense Authorization Act Freedom of speech question recognized by Christopher Hedges and a group of lawyers Supreme Court refused to grant writ of cert to the case Hedges V. Obama - Implications Creates a chilling effect on speech Question is not just of direct regulation of speech, but de facto chilling of speech Also begs question of why Supreme Court refuses to issue strong rulings on these issues

Schenck V. United States The accused distributed leaflets that attempted to persuade individuals to avoid the draft Some 15,000 leaflets were distributed No evidence that their leafletting had any effect The prosecution argues that their efforts were directly obstructing the draft Holmes delivers the majority opinion- establishes clear and present danger doctrine 9-0 decision indicates a strong ruling Clear and present danger First use of the "Fire in a Crowded Theatre" analogy Material interference with pursuing the war effort Also harkens back to the bad tendency test Eerie implication is that it appears all speech that is opposed to the war effort could be implicated Schenck V. United States - Implication Speech may not interfere with the war effort Subversive speech must be abstract in character Subversive speech must also be limited to speech which questions the desirability of war, rather than Holmes and the Baltzer Case

Yates V. United States (1957) - Facts Smith Act Trial Defendants are slightly less obnoxious in their defense Argue that they only abstractly defended the overthrow of government, and were engaged only in passive activities Notably, the defendants were relative unknowns within the party Yates V. United States - Decision 6-1 decision Two Concurrences. Harlan argues a combination of bad tendency (evil intent) and timeliness, arguing that neither standard was met. Justice Black argues instead for an absolute defense of free speech, regardless of how obnoxious and antagonistic Yates V. United States - Rule Clear and probable/Present danger still the standard, but now there is a shift towards the modern understanding Modern free speech absolutism is first defended in the courts Yates V. United States - Implication Limitations on speech as an activity, and especially organization are very much suspect Harder (impossible) to convict based on content of the speech Defends the right of people to engage in organized activity

In 1733, Zenger printed copies of a newspaper in New York to voice his disagreement with the actions of newly appointed colonial governor William Cosby. On his arrival in New York City, Cosby plunged into a rancorous quarrel with the Council of the colony over his salary. Unable to control the colony's supreme court he removed Chief Justice Lewis Morris, replacing him with James DeLancey of the royal party. Supported by members of the popular party, Zenger's New-York Weekly Journal continued to publish articles critical of the royal governor. Finally, Cosby issued a proclamation condemning the newspaper's "divers scandalous, virulent, false and seditious reflections." Zenger was charged with libel. After the lawyers for both sides finished arguments, the jury retired—only to return in ten minutes with a verdict of not guilty. In defending Zenger in this landmark case, Hamilton and Smith attempted to establish the precedent that a statement, even if defamatory, is not libelous if it can be proved, thus affirming freedom of the press in America.[11] However, if they succeeded in convincing the jury, they failed in establishing the legal precedent.

Whitney V. California Another Criminal Syndicalism act case Whitney is a different case in some respects because she is a member of a well regarded family in California Forms a Communist Labor Party, which then is engaged in violent activity Whitney V. California - Decision 9-0 Vote, with two concurring Opinions Majority opinion (written by Sanford) holds that Holmes "clear and present danger" doctrine applies Concurrence argues that the speech at the time of the groups founding could not have been calculated to cause violence, and therefore should have been protected Whitney V. California - Rule Affirms "Clear and Present Danger" test and the "Bad Tendency" doctrine Creates a new test based on timeliness Leads to a sensitivity that state laws need to be more narrowly tailored Whitney V. California - Implication What does this decision change for freedom of speech? What does Brandeis concurrence say about democracy? What does Brandeis concurrence say about the relationship between free speech and democracy?

Mill expresses his view on freedom by illustrating how an individual's amelioration of personal quality and self-improvement is the sole source of true freedom. Only when an individual is able to attain such a beneficial standard of one's self, whilst in the absence of rendering external onerosity upon others, in their own journey to procure a higher calibre of self-worth, that true freedom prevails. Mill's attitude toward freedom and individual accomplishment through self-improvement has inspired many. By establishing an appreciable level of worthiness concerned with one's ability to fulfill personal standards of notability and merit, Mill was able to provide many with a principal example of how they should achieve such particular values.

Black's absolutism led him to enforce the rights of the Constitution, rather than attempting to define a meaning, scope, or extent to each right Argued that freedom of speech is a right that supersedes the role of the government in defending civil society Argued from a "textualist" position, meaning that the exact wording of the law is what is at question Often placed in a position where he upheld the rights of people he vehemently disagreed with

In his majority opinion, Justice Holmes introduced the clear and present danger test, which would become an important concept in First Amendment law; but the Schenck decision did not formally adopt the test. the First Amendment did not protect speech encouraging men to resist induction, because, "when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."[6] In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present. The phrase "shouting fire in a crowded theater" has since become a popular metaphor for dangers or limitations of free speech.

Fish argues that free speech "is not an independent value, but a political prize," and any differences, which the courts have drawn between, protected and unprotected expressions are "malleable." Like any other concept, the principle of free speech is, for Fish, "inherently nothing," but one more noise in the "din and confusion of partisan struggle."