1. Questions of Constitutionalism
FREEDOM OF SPEECH
Questions of Constitutionalism

2. Libel and Slander Ordinary citizens Celebrity
Prove the statement was false
Caused harm to them
Made without research into the truthfulness of the statement.
Celebrity
Prove the 1st three and
Intent to do harm or with "reckless disregard" for the truth.

3. Questions of Constitutionality
What content is restricted?
Is the audience captive or free to leave?
Is the location public or private?
Are other avenues of expression available?
Are the rules equitably applied?

4. Historical Limitations on Free Speech

5. Sedition Act of 1735 Peter Zenger Case
Printer of New York Weekly Journal
Opposed NY Governor William Cosby
Accused of printing libelous statements
Argued – not libelous because they are true

6. World War I Espionage Act of 1917 Sedition Act of 1918
Stiff penalties for uttering or circulating false statements intended to interfere with the war effort.
Sedition Act of 1918
Crime to interfere with sale of government securities.
Prohibited saying or publishing anything disrespectful of the US government.

7. Clear and Present Danger
Schenck v US (1919)
General Secretary of Socialist Part of America.
War – caused and benefit of the rich
Americans – urged to oppose war
Mailings – 1,000 copies urging draftees and soldiers to resist the draft.

8. Schenck Decision (9-0) Schenck Decision
Upheld conviction – Espionage Act reasonable and acceptable in time of war.
Free Speech is not absolute – words can be weapons
Clear and Present Danger

9. Fighting Words
NY Law
Illegal to address any offensive, derisive or annoying word to any other person who is lawfully in the street or public place or call a person by any offensive or derisive name.

10. Fighting Words Chaplinsky v NY (1942) Jehovah’s Witness
Distributed leaflets with crowd calling all religion a “racket”
Police attempted to escort him away thinking violence might erupt.
Chaplinsky asked for those responsible for the unrest to be arrested.
Marshall refused – called him a “God Damned racketeer and a fascist”

11. Chaplinsky Decision (9-0)
Chaplinsky’s type of statement might lead the average person to breach the peace.
Lewd & obscene, the profane, the libelous, and the insulting or ‘fighting’ words which inflict injury or tend to incite an immediate breach of the peace.

12. Cold War
Smith Act
Federal crime to “advocate, abet, advise or teach” the overthrow or the destruction of the any US government by force or violence or to become a member of a group devoted to that end.
Start 2nd period 4/6

13. Clear and Probable Danger
Dennis v US (1951)
11 leaders – Communist Party
Charged with violating the Smith Act
Conspiracy to teach and advocate such activity to overthrow the government.

14. Smith Decision (6-2)
“Obvious purpose of the statute is to protect the existing government not from change by peaceful, lawful and constitutional change but from violence, revolution and terrorism.”
Conspiracy created the danger.
Clear and probable danger the government had the right to protect itself.
Protection of free speech depends on circumstances.