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Presentation on theme: "IT’S A WONDER WE’RE FREE TO SPEAK AT ALL COM 384 Ron Bishop, Ph.D."— Presentation transcript:


2 The Five Freedoms… “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”

3 The First Amendment It’s a free country, damnit! Must consider the context in which debate occurs. We embrace with great passion our freedom to say what we want, where we want, when we want… But there’s a gap, a discrepancy in our commitment. Don’t tell me what to say – tell him…or her…or them… Who has the ear of our officials and the media?

4 The First Amendment The First Amendment is evolving, if that’s what you want to call it… The courts are a catalyst for this evolution. We like to think public officials and the courts respect free expression. There are more limits these days, more attacks on free expression. So I leave it to you…

5 Should We Protect This?

6 Or This?








14 To Sum Up – What’s Protected? Obscenity – most of the time. Indecency – I know it when I see it; wait, that’s porn. Hateful, nasty speech – still, yes. Flag burning – yes. Yelling “Fire!” in a crowded theater – no. BOTTOM LINE: You generally can’t punish a speaker, but it’s the “generally” that gets us in trouble.

15 Or Can You? So it’s not absolute after all – not everything is protected. Government can – and does and will – restrict speech. It’s an evolving concept, with evolution shaped by politics, Congress, the Courts. Freedom is only won through hard fought battles, kept through vigilance. Otherwise, it’s back to licensing the press and a ban on criticizing the government (didn’t completely end this until late 20 th Century).

16 Or Can You? Not much that might, under wide definitions, threaten national security. Punishing advocacy of illegal or even unpopular ideas isn’t new. Alien and Sedition Act of 1798 Espionage Act of 1917 Smith Act of 1940 State sedition, criminal syndicalism laws

17 Or Can You? Supreme Court doesn’t rule on how far government can go to thwart folks who want to overthrow the government. Then: Dennis v. U.S. (1951): The evil the government wanted to prevent was bad enough to justify restricting speech. If the government detects indoctrination and commitment to a course of action, it must act, even if the group isn’t successful, as here. This was “a highly organized conspiracy.” But does advocacy automatically translate into action?

18 Or Can You? Yates v. U.S. (1957): A change of heart; convictions of Party leaders set aside, some acquitted, others remanded for retrial. Smith Act barred “advocacy of action,” not “advocacy in the realm of ideas.” You have to be urged to do something, not just to believe in something, Justice John Marshall Harlan II wrote. Smith Act hasn’t been invoked to punish in 40+ years. Key words: “inciting imminent lawless action.”

19 It Boils Down To This… What can I say? When and where can I say it? Under what circumstances will officials tell me I can’t say it?

20 And Finally…This? Ladies and Gentlemen…George Carlin!George Carlin

21 Benjamin Harris

22 They Call Me Mr. Zenger…

23 The First Amendment Framers didn’t define “freedom.” No instruction manual – not that we’d read it. Just got a “sweeping command” – and then the Alien and Sedition Acts in 1798. And how could the Framers have guessed we’d invent Do we get that there must be “freedom for the thought we hate,” as Justice Holmes said. Judges say they don’t pay attention to public opinion, but… Courts’ commitment to FOS, FOE grew as ours did.

24 The First Amendment Commit this one to memory: there’s always room for mischief on the part of officials. FOE has to be vigorously defended. Calls now and then to license journalists, to revive sedition laws. So we’re not all 1A cheerleaders after all. Congress left things alone until passing the Espionage Act in 1918. Made it a crime to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about Constitution, the military, the flag.

25 The First Amendment But then, Scalia joined the majority in striking down a flag burning law. But then, even a 1A absolutist like Hugo Black was OK with some restrictions. So you just never know, do you?

26 The First Amendment First Amendment claim not endorsed by the Supreme Court until 1919 – and that was in a dissent. Until then, Supreme Court treated First Amendment as unimportant. If speech offended anyone, could ban it. Patterson v. Colorado (1907): Upheld ban on speech “contrary to public welfare.”

27 An Open Culture? Have to ask ourselves: How unregulated a country do we really want? Where’s the line between liberty and order? Is the demand for “no law” absolute? Do we really want everyone saying anything they want – at any time?

28 An Open Culture? After all, speech can be: Uplifting and degrading Enlightening and redundant Profound but trivial Rational and emotional Contemplative and raucous Orderly and chaotic Organized and messy Soft and loud IN SHORT: People say and write some dumb-ass things.

29 An Open Culture? Censorship is a social instinct. Openness ain’t easy. If we’re really into openness, rules have to be created to protect, encourage, nurture it. We decide what we say; government has to justify any encroachment on free expression. Miami Herald Publishing v. Tornillo (1974) Speech gets a “preferred position.”

30 An Open Culture - Rationales The “Marketplace of Ideas” (Aeropagitica, 1745). Who gets to shop? Who gets to sell? Human dignity The human spirit demands self-expression (Thurgood Marshall). Self-governance Free speech “indispensable to the discovery and spread of truth” (Louis Brandeis).

31 At The Marketplace Truth, if it exists, is persistent. We’ll eventually get there. But it’s vulnerable – needs a little nudge. Holmes: claims truth is an illusion, provisional. The market will provide “the best test of truth.” Can’t test the idea that “truth will triumph” though, Would have to measure what’s true and not true. The “search” is the strength. “Frequently and fearlessly discuss,” says John Stuart Mill.

32 What of Human Dignity? Our spirit demands self-expression. Not always about finding truth – sometimes you just have to get something off your chest. But…this seems a little hedonistic, self-indulgent. What about “nourishment?’” Should we just protect important ideas? Manufactured outrage isn’t enough to limit speech. Should thought be protected? Should the government be able to regulate harmful thought?

33 Finally, Self-Governance FOS a tool to keep the ship sailing, the motor running “Indispensable,” said Brandeis, “to the discovery and spread of political truth.” Feels great to use info to participate, to pursue truth, to make sure the majority does in fact rule, to restrain despotic tendencies, to maintain stability. Openness is best – can’t punish just to restore order.

34 First Amendment Approaches Absolutist Ad Hoc Balancing Preferred Position Balancing Meiklejohnian Access

35 And What About You? The First Amendment goes too far in the rights it guarantees. Musicians should be allowed to write and to sing songs with offensive lyrics. It’s important for our democracy that the news media act as a watchdog on government. The First Amendment requires a clear separation of church and state.

36 And What About You? Public HS students should be allowed to report on controversial issues without official pre-approval. Public schools should be allowed to discipline students who use their own computers at home to post material school officials say is offensive. Journalists should be allowed to keep a source confidential. The proceedings of the U.S. Supreme Court should be televised.

37 And What About You? Freedom to worship applies to all religious groups, no matter how extreme their views. The U.S. Constitution should be amended to ban flag burning.

38 When the Court Dives In… Schenck v. U.S. (1919) Clear and present danger test is born. Frohwerk v. U.S. (1919) 1A doesn’t give immunity “for every possible use of language,” says Holmes. Debs v. U.S. (1919) Conviction based on one speech advocating socialism, draft resistance, and opposition to war is upheld. Abrams v. U.S. (1919) “Poor and puny anonymities” Gitlow v. New York (1925) 14 th Amendment applies 1 st to the states. Whitney v. California (1927) Justice Brandeis’ brilliant dissent.

39 When the Court Dives In… Schneider v. N.J. (1939) Can’t bar handbills by arguing you want to keep the streets clean… Chaplinsky v. N.H. (1942) Punishing “fighting words” is OK.

40 Schenck v. U.S.

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