1. History of the First Amendment in the XXth Century

2. Evolution of the free speech rules Bad tendency test Absolute control Absolute freedom Clear and present danger rule Incitement rule Must wait until a real danger' can be identified, Actual incitement likely to produce immediate lawless conduct. from english common law (XIXth Century)

3. Bad tendency test This rule derives from Sir William Blackstone’s „Commentaries” on the English common law in the eighteenth century.

4. Free speech precludes prior restrains, but permits the punishment of publications fot their tendancy to harm the public welfare (to create animosities).

5. In general, the bad tendency principle is a test which permits restriction of free speech and press by government if it is believed that a this kind of expression has a sole tendency to incite or cause illegal activity.

6. Schenck v. United States (1919) Defendant Charles T. Schenck, general secretary of the Socialist Party, was charged with three counts of violating the Espionage Act of June 15, 1917.

7. Schenck v. United States(1919) The Espionage Act (1917), was passed by Congress about two months after the United States declared war upon Germany. It was directed primarily at acts of sabotage and the protection of military secrets.

8. This law did make illegal to encourage insubordination in the armed forces or to promote resistance to the draft (for example conspiring to obstruct the draft) Schenck v. United States(1919)

9. The charges were: conspiracy to obstruct the draft by circulating a document (leaflets) which urged resistance to the draft, conspiracy to use the mails to circulate the document, actual mailing of the copies of the antidraft leaflet.

10. Schenck v. United States(1919) Schenck was convicted, and both the U.S, Court of Appeals and the U.S. Supreme Court upheld his conviction. This is classified as a landmark case because in it the clear-and-present-danger test was announced (although it was not applied) by the Court for the first time in its history.

12. The announcement of the new clear-and-present-danger test by Justice Holmes did not save Schenck, for the Court, relying more upon "bad tendency test" than upon "clear and present danger rule" voted unanimously that Schenck's leaflet created enough of a threat to merit punishment. Schenck v. United States(1919)

13. In this sentence Holmes wrote: „… 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”. Schenck v. United States(1919)

14. Abrams v. United States (1919) Jacob Abrams and four other defendants, all Russian citizens living in the United States.

15. They were convicted under the Espionage Act of conspiring to unlawfully „utter, print, write and publish” seditious message during time of war, including the advocacy of curtailment of production of things and product nessesary and essential to the prosecution of the war. Abrams v. United States (1919)

16. The unlawful messages were contained in antiwar leaflets distributed in and around New York City. The trial court sentenced the defendants to twenty years in prison, and the Supreme Court, using the bad-tendency doctrine, upheld the conviction. Abrams v. United States (1919)

17. Gitlow v. New York z 1925 Benjamin Gitlow, a radical socialist, published and distributed sixteen thousand copies of a "Left Wing Manifesto" that urged the establishment of socialism by strikes and "class action.., in any form."

18. http://darrow.law.umn.edu/documents/Gitl ow_Left_Wing_Manifesto.pdf http://darrow.law.umn.edu/documents/Gitl ow_Left_Wing_Manifesto.pdf Gitlow v. New York z 1925

19. He was convicted in the courts of New York for violating the state's criminal anarchy statute (whereas Schenck and Abrams had been convicted of violating the federal law). Gitlow v. New York z 1925

20. Gitlow’s attorneys argued that the First Amendment to the U,S. Constitution applied to state law by way of the due process clause of the 14th Amendment. The amendment addresses citizenship rights and equal protection of the laws. Gitlow v. New York z 1925

21. 14th Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

22. The Court, while agreeing with the innovative Fourteenth Amendment argument, upheld the conviction anyhow, asserting that Gitlow, presented a degree of danger to the state which even the First Amendment could not excuse.

23. Two jugdes Holmes and Brandeis, in their dissent argue, that no genuine danger was created by the "Left Wing Manifesto," Gitlow v. New York z 1925

24. A dissenting opinion (or dissent) is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Gitlow v. New York z 1925

25. Dennis v. United States (1951) Eugene Dennis, secretary general of the Communist Party, and ten associates were convicted in federal court of violating provisions of the Smith Act (1940).

26. Smith Act (1940) – law, that set criminal penalties for advocating the overthrow of the U.S. government and required all non-citizen adult residents to register with the government.

27. In upholding the conviction judge Vinson said: a) That a difference exists between the discussion of revolution and indoctrination and advocacy that tend toward achieving a revolution, Dennis v. United States (1951)

28. B) the „gravity of evil” presented by communism is so great that it is foolish „to wait unlit putsch is about to be execuited” before stopping it. The clear and present danger test is abandoned and tendency rule is employed. Dennis v. United States (1951)

29. Brandenburg v. Ohio (1969) At a Ku Klux Klan rally in rural Ohio, members wore robes and hoods, carried firearms, burned a cross, denounced "niggers" and Jews, and announced a march on Washington.

30. A Klan leader, Clarence Brandenburg, was convicted for advocating violence under an Ohio statute, fined $1,000 and sentenced to one to ten years in prison.

31. On appeal, the Supreme Court reversed the conviction, upholding the right to use inflammatory speech, as long as it is not likely to incite violence.

32. National Socialist Party of America v. Village of Skokie (1977) Frank" Collin (born November 3, 1944) formerly leader of the National Socialist Party of America. In the late 1970s, its plan to march in the predominantly Jewish suburb of Skokie, (Illinois) resulted in a case that went to the United States Supreme Court.

33. The court, in a major First Amendment decision National Socialist Party of America v. Village of Skokie (1979), ruled that the party had a right to march and to display a swastika.

34. Collin lost his position in the party when stories were publicized that his father was a Jewish Holocaust survivor National Socialist Party of America v. Village of Skokie (1977)

35. After being asked for a large insurance bond to march in Chicago's southwest side, a neo-Nazi group led by Frank Collin, said it would march instead in a Jewish suburb where many Holocaust survivors lived. National Socialist Party of America v. Village of Skokie (1977)

36. The case made its way to the Supreme Court, where the justices upheld the right of the NSPA to assemble while displaying swastikas. National Socialist Party of America v. Village of Skokie (1977)

39. Hustler Magazine v. Falwell (1988)

40. In a 1983 issue of the pornographic magazine published by Larry Flynt, above, a parody described a drunken sexual encounter in an outhouse between Reverend Jerry Falwell and his mother. Hustler Magazine v. Falwell (1988)

41. Falwell sued and was awarded $200,000 in damages by a lower court, but that decision was overturned in an 8-0 Supreme Court ruling that said …

42. that the parody was within the law, because no reasonable person would have interpreted it to contain factual claims. Hustler Magazine v. Falwell (1988)

43. Texas v. Johnson (1989) During a protest outside the 1984 GOP convention, Gregory Johnson, a member of a Communist youth group, burned an American flag.

44. GOP – „Grand Old Party” Texas v. Johnson (1989)

45. Johnson was charged with violating a Texas law that prohibits vandalizing respected objects. He was convicted, sentenced to one year in prison, and fined $2,000. Texas v. Johnson (1989)

46. The Texas Court of Criminal Appeals overturned that conviction and the Supreme Court, in a 5-4 decision, agreed, saying that that the statute used to convict him violated the constitutional guarantee to freedom of speech. Texas v. Johnson (1989)

47. R.A.V. v. City of St. Paul (1992) A group of teenagers burned a crude cross on the lawn of an African American family in St. Paul, Minneapolis.

49. One of them, (whose full name was not released because he was a juvenile at the time – R.A.V.) was convicted under a city ordinance aimed at bias- motivated crime. R.A.V. v. City of St. Paul (1992)

50. In a unanimous decision, the Supreme Court struck down the St. Paul ordinance, thereby overturning the conviction of the teenager. R.A.V. v. City of St. Paul (1992)

51. Snyder v. Phelps (2010) The Westboro Baptist Church (WBC) is an American unaffiliated Baptist church known for its extreme ideologies, especially those against gay people.

52. On March 3, 2006, U.S. Marine Lance Corporal Matthew A. Snyder was killed in a non-combat- related vehicle accident in Iraq.

53. On March 10, Westboro Baptist Church (WBC) picketed Snyder's funeral in Westminster, Maryland, as it had done at thousands of other funerals throughout the U.S. in protest of what they considered America's increasing tolerance of homosexuality.

54. Albert Snyder, Matthew Snyder's father, sued Fred Phelps, Westboro Baptist Church and two of Phelps's daughters, Rebekah Phelps-Davis and Shirley Phelps-Roper, for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. Snyder v. Phelps (2010)

55. On Oct. 6, 2010 the Supreme Court heard arguments in wherein the Westboro Baptist Church, led by Fred Phelps was sued by the family of a Marine slain in Iraq.

56. Snyder’s funeral Phelps and his congregation picketed in 2006, bearing signs that said, "You're Going to Hell" and "God Hates Fags" among other hateful statements.

57. Snyder v. Phelps (2010) was a United States Supreme Court case in which the Court held that speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous".

58. The Court ruled in favor of Phelps in an 8–1 decision, holding that their speech related to a public issue, and was disseminated on a public sidewalk.

59. Based on: 1. Freedom of Speech in the United States, T.L. Tedford, D.A. Herbeck. 2. The Long, Sometimes Painful History of the First Amendment The Long, Sometimes Painful History of the First Amendment - Photo Essays - TIME http://content.time.com/time/photogallery/0, 29307,2021168,00.html#ixzz2wNgqPVgcThe Long, Sometimes Painful History of the First Amendment - Photo Essays - TIME http://content.time.com/time/photogallery/0, 29307,2021168,00.html#ixzz2wNgqPVgc

60. The end Thank you for your attention