Chapter Two

Seditious Libel Laws

Colonial Law

Punished citizens who criticized government

Prior Restraint Laws

Colonial Laws

Needed approval to publish about the government or the Church

Trial of John Peter Zenger

Willingly said he wrote about the governor while on trial, but jury said he was not guilty of crimes.

Jury did not like the law and did not think they were fair, so this was their protest to it

\***Jury Nulification***

Community Censorship

Public sang what you should or should not do

EX: “Cancelling” someone online

Heckler’s Veto

Crowd does not like what speaker is saying and disrupts them until they leave

What are the five freedoms listed in the Bill of Rights?

1. Freedom of Press

2. Freedom of Speech

3. Freedom of Religion

4. Right to peacefully assemble

5. Right to petition government for grievances

Absolutist Theory

If anything infringes on 1st amendment right, it is considered unconstitutional

*No current Supreme Court Justice hold this idea*

Ad Hoc Balancing Theory

Does not use precedent in ruling - case by case decision

Very unsettled law, cannot predict outcome

*No current Supreme Court Justices hold this idea*

Preferred Position Balancing Theory

Balances first amendment with sixth amendment (right to a speedy trial)

Leans towards being pro first amendment

*Current liberal Supreme Court Justices lean this way*

Meiklejohnian Theory

Public v Private speech

Political speech (public) is always protected by first amendment

Anything not considered political by court/jury may be censored

Marketplace of Ideas Theory

The more opinions, the better

Society needs to see all opinions to form ideas and pick the best one

Chief Justice Roberts uses this when in favor of first amendment

Very popular in current Supreme Court

Critics Say:

1. It allows too much hate speech

2. The more resources you have, the more control of the media you have

Access Theory

If media will not voluntarily let groups/people/ideas on their airwaves, court can force them to air those views

Only applies to TV and radio

Newspapers/Internet ruling was struck down in Miami Herald v Tornillo

Self-Realization or Self-Fulfillment Theory

Protects act of speaking, not what is said

Does not matter what the person says - protects hate speech

Smith Act of 1951

Nicknamed the “Anti-Communist Act”

Took away freedom of speech of Americans during the Cold War

Alien and Sedition Act of 1798

Punishes both domestic and international terrorists

Espionage Act of 1917

Passed during WWI

Americans cannot interfere with the war effort

EX: Dodge the draft, Speak out against the Gov, etc.

Sedition Act of 1918

Passed during WWI

Made it illegal to publish anything disloyal/profane/lewd, etc. about the US Government, Constitution, flag or anything remotely American

Made putting the flag pattern on anything besides a flag illegal

Criminal Syndicalism

Could not fly a red (communist) or black (fascist) flag

Smith Act of 1940

Outlawed communism

In the 1990s, it began being used to prosecute terrorists

Clear and Present Danger Test

When and where the US can censor what you are saying (Is it a “clear and present danger”?)

Started being used to prosecute anyone who spoke out against the gov, against the demand of the Supreme Court

Schenck v US (1918)

Case that developed the clear and present danger test

Whitney v California (1927)

Clarifies clear and present danger test

Defendant did not create direct and immediate harm to the United States

Dennis v US (1951)

Creates idea of “free speech” and “evil speech”

Clarifies clear and present danger test

**Yates v US**

First clear and present danger case that the Supreme Court overturned

Creates difference between advocating for something v breaking the law to do that thing

EX: Hate speech is legal, but hate crimes are not

Brandenburg v Ohio (1969)

Defines difference between speech and producing lawless action

Entertainment companies use this to prove innocence in wrongful death lawsuits

EX: Song talks about killing someone is almost always okay until action by that person is taken

Strict Scrutiny

For video games only

There must be a very specific reason why it needs to be regulated

(Compelling interest/dire need)

Prior Restraint

Very hard to US for restrain any type of publication

Near v Minnesota (1931)

MN law allowing banning of malicious, defamatory info about the government was deemed unconstitutional

Big win for media companies then and now

Reason why gov has very little chance of winning a censorship battle

Pentagon Papers (1971)

Supreme court ruled 6-3 allowing New York Times and Washington Post to publish classified info that was obtained from the White House without their knowledge

Court decided there was no “compelling need” to stop the publication

Injunction

Must stop publishing something until the court tells you otherwise

EX: The Pentagon Papers case