8/21 | Notes on Philosophical Foundations and Jurisprudence of the First Amendment

Foundations and philosophical underpinnings

• The speech landscape is crowded; the loudest voice may be heard more, but the goal is to hear multiple points of view. Freedom of expression supports individual beliefs and resisting forced conformity; self-governance relies on diverse viewpoints.
• Free speech is linked to evolution rather than revolution: repression of speech hinders solutions, while allowing debate prompts gradual progress.
• Historical note on inclusion and rights:
  • At America's founding, political standing was limited to white, upper-class men; women, slaves, and Native Americans lacked standing. Over time, reforms expanded rights (women gained the vote; property rights changed; civil rights movements expanded protections).
• Metaphor of evolution: suppression leads to eventual upheaval; evolution in values and norms, not sudden revolutions, shapes society.
• Self-governance and the Constitution:
  • The Constitution creates the federal framework with three branches (legislative, executive, judicial) and defines their roles.
  • The Bill of Rights (the first 10 amendments) limits government power to protect individual rights, including free speech.

Constitutional framework and textual origin

• The First Amendment text (as part of the First Amendment, quoted):
  • "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 redress of grievances."$$
• Practical point: the wording is intentionally broad; interpretation matters.
• The Supreme Court bears the interpretive burden: two major camps:
  • Originalists: try to discern what the Founders meant at the time.
  • Living document (dynamic) theorists: the framework should adapt to contemporary society and technologies (e.g., radio when First Amendment drafted).
• The Fourteenth Amendment (due process and incorporation):
  • The Fourteenth Amendment extends the protection of the Bill of Rights to the states, via incorporation. This process allows the Supreme Court to assess whether state laws align with constitutional protections.
  • Key phrase connected to free speech and due process: due process of law protects liberty and speech against state action.

Evolution of First Amendment jurisprudence: key milestones

• Early decades and context:
  • Before broad protections, some states tried to regulate speech; over time, courts began recognizing limits only as guided by constitutional principles.
• Landmark incorporation and early limits:
  • Gitlow v. New York (1925): incorporation of free speech to apply to the states via the 14th Amendment; left-wing manifesto and criminal law conflict highlighted the need to balance state laws with fundamental rights.
  • Smith Act era and the 1940s-1950s: concern about socialist/communist advocacy during global conflict and Cold War context.
• Sedition and its historical roots:
  • Seditious libel: criticism of government, church, or ruling class could be punished; rooted in 17th-century England.
  • Zenger case (Andrew Hamilton): established that truth could be a defense against seditious libel; foundational idea for truthful reporting as protection, not punishment.
  • Alien and Sedition Acts (1798–1800): federal efforts to suppress opposition during wartime; Jefferson allowed them to lapse when in power, signaling evolving tolerances for speech.
• 20th-century shifts and the marketplace of ideas:
  • The idea that diverse viewpoints are essential for truth to emerge and be tested in the public sphere.
  • The broadening from absolute to contextual protections as society evolves and technologies emerge.

Core doctrines and tests for restricting speech

• Clear and present danger (Holmes, Schenck lineage):
  • Speech may be restricted if it creates a clear and present danger of significant harm.
  • As originally framed, this allowed restrictions when action was likely to occur due to speech, particularly in wartime.
• Imminent lawless action (Brandenburg test, post-Dennis):
  • Brandenburg v. Ohio (1969): immunity for speech unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
  • This narrowed the scope of restrictions beyond the broad “clear and present danger” standard and made incitement a precise, testable threshold.
  • Two critical elements: (1) intent and (2) imminence of the unlawful act; the incitement must be likely and imminent for restriction.
• Dennis v. United States and its legacy:
  • Earlier test used to uphold Smith Act convictions; emphasized a threshold for government interest in preventing action, but Brandenburg overruled or narrowed its framework by emphasizing imminence.
• The marketplace of ideas and concurrent/ dissenting views:
  • Dissenters in Smith Act-era cases (e.g., Black and Douglas) argued for broader protection of speech, even if it includes advocating unpopular or radical ideas.
• O'Brien test for regulation of conduct (non-speech elements):
  • In United States v. O'Brien (1968), the Court set a four-part test for restrictions on conduct that incidentally affect speech:
  • (1) Regulation must be within the constitutional power of the government.
  • (2) It must further an important or substantial Government interest.
  • (3) The governmental interest must be unrelated to the suppression of speech.
  • (4) The restriction must be no greater than necessary to achieve the interest (narrowly tailored).
  • This test allows regulation of conduct where the primary aim is unrelated to suppressing expression.
• General applicability vs content-based restrictions:
  • Laws of general applicability (e.g., trespass or public safety statutes) do not automatically violate the First Amendment, though enforcement against the press may affect reporting; the government can apply neutral laws as long as they do not target speech specifically.
• Prior restraint and publication prohibitions:
  • Prior restraint is the government attempting to forbid publication before it occurs.
  • Three-part test for prior restraint:
  • (1) The government must show a compelling interest strong enough to override First Amendment rights.
  • (2) The restraint must be narrowly tailored to that interest (not overly broad).
  • (3) The restraint must be effective in achieving its goal.
  • Notable example: The Progressive case (1979) involved attempts to preemptively block publication of H-bomb design details; the injunctions were contested and eventually dissolved as the argument evolved in the courts.
• Distinctions between political, corporate, and symbolic speech:
  • Political speech is highly protected; corporate speech is treated as speech nonetheless but often with intermediate protection relative to individual political speech, with a balancing approach to corruption concerns.
  • Money in politics is treated as a form of political speech under modern jurisprudence (Citizens United, McCutcheon): campaign spending and corporate speech are protected as expressions of viewpoint and association, though debate persists about potential corruption.

Notable cases in chronological context (highlights and outcomes)

• Seditious libel and press protection heritage:
  • Zenger (1735): truth as defense against seditious libel; early cornerstone for press freedom.
• Alien and Sedition Acts (1798–1800):
  • Federal Iaws aimed at suppressing dissent about the government during wartime; lapsed when political power shifted.
• Abrams v. United States (1919):
  • Convicted under wartime acts for distributing anti-war leaflets; dissenters highlighted the value of diverse viewpoints.
• Schenck v. United States (1919):
  • Upheld conviction under the Espionage Act; introduced the clear and present danger standard.
• Whitney, Dennis and the later overhauls:
  • Dennis v. United States (1951): upheld convictions under the Smith Act in a majority perspective; later undermined by Brandenburg.
• Yates v. United States (1957):
  • Reversed some convictions by distinguishing abstract doctrine from imminent action.
• Brandenburg v. Ohio (1969):
  • Reaffirmed that speech is protected unless it incites imminent lawless action; solidified modern standard for incitement.
• O'Brien v. United States (1968):
  • Developed the four-part test for regulating conduct accompanying speech.
• Tinker v. Des Moines (1969):
  • Affirmed student speech rights so long as speech does not disrupt school operations; introduced the school setting framework for First Amendment protections.
• Hazelwood v. Kuhlmeier (1988):
  • School administrators as editors in school-sponsored activities can exercise editorial control when actions are reasonably related to pedagogical concerns; establishes the concept that student rights are not identical to those of adults in all contexts.
• Bethel School District v. Fraser (relevant line of cases around student speech) / Bong Hits 4 Jesus (Frederick) (2007):
  • Frederick v. Morse (2007): schools may restrict symbolic speech that violates school policy on drug use; Roberts emphasized school policy enforcement, while concurring opinions suggested stronger protection for student speech in other contexts.
• Near v. Minnesota (1931) and New York Times v. United States (Pentagon Papers, 1971):
  • Prior restraint is highly disfavored; Near v. Minnesota established a narrow path for prior restraint; NYT v. United States reinforced that publication cannot be blocked merely to suppress embarrassing information, particularly in broad public interest contexts.
• The Progressive (1979) and the H-bomb disclosure case:
  • Attempt to stop publication of detailed H-bomb information by prepublication injunction; the government’s compelling interest was weighed against First Amendment protection.
• Citizens United v. FEC (2010) and McCutcheon v. FEC (2014):
  • Expanded protection for political spending as political speech; allowed corporate funding of campaigns under First Amendment protections; raised concerns about potential corruption and equal access.

The role of secrecy, prior restraint, and publication in practice

• Prepublication review and confidentiality agreements:
  • United States v. Marquette Time, Inc. (CIA relationship): the government sought prepublication review; courts weighed whether rights to speak can be constrained by post-employment or non-disclosure agreements.
  • Confidentiality agreements can restrict First Amendment rights when they pertain to internal information or state secrets.
• Prepublication and post-publication consequences:
  • The need to balance national security, government transparency, and the public’s right to know.
• Notable limits on publication:
  • Criminal speech: when it involves instructions to commit crimes (e.g., how to evade taxes, how to build weapons illegally), it may fall outside First Amendment protection.
  • The government can restrict speech that facilitates wrongdoing, and courts assess the nature of the speech in relation to its potential harm.
• En loco parentis and minors in schools:
  • The school has a duty to protect students, acting in loco parentis; students’ First Amendment rights can be limited in school contexts if the limitations are reasonably related to legitimate pedagogical concerns and do not disproportionately suppress expression.

Student speech and school settings: practical implications

• Hazelwood emphasizes editorial control by school officials for school-sponsored activities; speech must relate to legitimate pedagogical concerns.
• Tinker establishes that students do not shed all rights at the schoolhouse gate; speech cannot be suppressed absent disruption to the educational process.
• Freestanding cases (e.g., Bong Hits for Jesus) show the fine line between school policy enforcement and free expression; courts may allow schools to discipline or reprimand speech that violates school policy even when it takes place off-campus or in relation to school events.
• En loco parentis underscores the school’s authority to regulate student expression to maintain a safe and effective learning environment.

Real-world implications, ethics, and practical implications

• The balance between individual rights and societal interests (national security, public safety, and order) is a constant, evolving negotiation.
• The rise of money in politics (Citizens United, McCutcheon) raises questions about how to preserve robust speech while preventing corruption and undue influence.
• Corporate speech and political expenditures vs. human actor speech: debates continue about whether corporate entities deserve the same protection as individuals in political discourse.
• The role of the courts in adopting a “framework” rather than a fixed set of rules for speech: originalist vs. living document approaches influence how amendments are interpreted over time.
• The interplay between media rights, investigative reporting, and the legal system’s use of various statutes (Espionage Act, Smith Act) to regulate speech during times of national crisis.
• The ongoing tension between the public’s right to know and national security concerns, highlighted by cases like the Pentagon Papers, the Progressive, and WikiLeaks-associated prosecutions.

Symbols, definitions, and key terms to remember

• Seditious libel: speech criticizing government, church, or ruling class; historically punishable but gradually limited by free-speech doctrine.
• Incorporation via the 14th Amendment: applying the Bill of Rights to the states; essential for protecting speech rights beyond federal jurisdiction.
• Clear and present danger: early standard for restricting speech during wartime; later tempered by the imminence requirement.
• Imminent lawless action: Brandenburg standard; speech is protected unless it is intended and likely to incite imminent illegal activity.
• Content-neutral vs content-based restrictions: restrictions based on conduct or context are more permissible when not targeting the content of the speech.
• Prior restraint: government attempts to stop publication before it occurs; generally disfavored and subject to strict scrutiny.
• En loco parentis: school’s duty to act in place of parents for minors; informs the handling of student rights in school settings.
• Forum types (public forums, nonpublic forums): determine the level of permissible speech and the government’s ability to regulate in different spaces.
• RFRA (Religious Freedom Restoration Act) and Hobby Lobby: broadened interpretation of religious liberty protections; debates about applicability to for-profit corporations.
• Corporate speech vs. human speech: courts treat corporate political spending as protected speech but acknowledge potential differences in impact and fraud considerations.

Summary and implications for the exam

• First Amendment rights are not absolute; they are balanced against compelling government interests, national security, and the rights of others.
• The Supreme Court has gradually refined tests for when speech can be restricted, moving from broad protections to more nuanced, context-driven standards (clear and present danger → imminent lawless action).
• Incorporation via the 14th Amendment is central to applying federal protections to state actions and state laws.
• The evolution of cases reflects broader societal changes, including technology shifts (radio, print, internet), evolving norms around political speech, and the role of money in politics.
• In school settings, rights are shaped by educational objectives and the need to maintain an orderly environment, with editors and administrators playing a role in shaping school-sponsored speech.
• Contemporary issues continue to test the boundaries of speech protections, including national security prosecutions, investigative journalism, and corporate influence in elections.