Comprehensive Study Notes on the First Amendment and Freedom of Expression

The First Amendment: Fundamental Text and Philosophical Underpinnings

• The First Amendment (Ch. $5$) of the U.S. Constitution provides the foundational legal framework for civil liberties in the United States.

• Verbatim Text of the First Amendment: "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 a redress of grievances."

• Philosophical Influences:     - J.S. Mill, "On Liberty": Freedom of speech and thought are essential because they foster:         - Authenticity         - Genius         - Creativity         - Individuality         - Human flourishing

Ten Principles for a Connected World by Prof. Timothy Gorton Ash ($2016$)

• $1.$ Expression and Information: We — all human beings — must be free and able to express ourselves, and to seek, receive, and impart information and ideas, regardless of frontiers.

• $2.$ Violence and Intimidation: We neither make threats of violence nor accept violent intimidation.

• $3.$ Taboos and Knowledge: We allow no taboos against and seize every chance for the spread of knowledge.

• $4.$ Uncensored Media: We require uncensored, diverse, trustworthy media so we can make well-informed decisions and participate fully in political life.

• $5.$ Robust Civility: We express ourselves openly and with robust civility about all kinds of human difference.

• $6.$ Believers vs. Beliefs: We respect the believer but not necessarily the content of the belief.

• $7.$ Privacy and Reputation: We must be able to protect our privacy and to counter slurs on our reputations, but not prevent scrutiny that is in the public interest.

• $8.$ Information Freedom: We must be empowered to challenge all limits to freedom of information justified on such grounds as national security.

• $9.$ Communications Systems: We defend the Internet and other systems of communication against illegitimate encroachments by both public and private powers.

• $10.$ Responsibility: We decide for ourselves and face the consequences.

Core Values Protected by the First Amendment

• Louis Brandeis, in the case of Whitney v. CA, identified several core values served by the First Amendment:     - Discovery of truth     - Political participation by citizens     - "Safety valve" (allowing for peaceful venting of grievances)     - Individual self-fulfillment     - Checking government abuse     - Promoting tolerance     - Building a robust community

• Perspectives on Censorship: Ira Glasser (ACLU) famously stated: "Censorship is like poison gas: effective when your enemy is in sight — but the wind has a way of shifting."

The History of Religious Liberty: From Edict to Disestablishment

• Timeline of Religious Liberty:     - Edict of Milan ($313\,AD$): Early move toward religious toleration.     - Gutenberg printing press: Revolutionized the spread of religious and political ideas.     - Protestant Reformation: Challenged the religious monopoly of the time.     - Martin Luther and the Diet of Worms ($1521$): Crucial moment of dissent against ecclesiastical authority.

• Disestablishment in America:     - The transition moved from mere toleration to full religious liberty.     - Elder John Leland (MA Baptist minister, $1781$): Argued strongly against religious tests and state-funded teachers. He observed that Massachusetts laws only provided for Protestant teachers, effectively proscribing "Pagans, Turks, and Jews" and denying maintenance to "Papists." He asked: "Why should a man be proscribed, or any wife disgraced… when his talents and veracity as a civilian, entitles him to the confidence of the public?"     - Leland on Toleration ($1790$): "The very idea of toleration is despicable, it supposes that some have a preeminence above the rest, to grant indulgence; whereas all should be equally free, Jews, Turks, Pagans and Christians. Test oaths, and established creeds, should be avoided as the worst of evils."

Ancient Foundations: Freedom of Expression in Greece

• Judaic Concepts:     - Early restrictions centered on blasphemy, impiety, mockery, comedy, and slander.     - Ten Commandments (Exodus $20$):         - "You shall have no other gods before me."         - "You shall not make for yourself a carved image."         - "You shall not take the name of the Lord your God in vain."         - "You shall not bear false witness against your neighbor."     - Leviticus $19:16$: "You shall not go around as a slanderer among your people, and you shall not stand up against the life of your neighbor: I am the Lord."     - Judeo-Christian moral principles established a framework against slander, lying, and gossip.

• Classical Democracy:     - Aimed to control "the mob" while allowing the citizenry a voice.     - Greek Tragedies: Oldest form of Greek plays; patronized by tyrants and oligarchs. Limits remained on impiety.     - Greek Comedies: Not recorded at the Dionysia until $487/6\,BC$. This serves as evidence that democratic patronage allows for ridicule and mockery. State monies subsidized these festivals.     - The Limits of Comedy: Comedies were often used as a cover for mockery/attack, but were subject to "chilling effects."     - Aristophanes in "The Frogs" wrote: "Some people there are who, when guyed in a play, / Take it out on the poet by cutting his pay."     - Usual limits in Ancient Greece:         - Impiety (with exceptions for minor deities and demigods).         - "Wrong the Polis" (treasonable statements/insinuations).         - Outright slander by name.     - Aristophanes' "The Babylonians" ($426\,BC$): The play attacked the demagogue Cleon and portrayed Athenian city-state allies as slaves. Cleon sued Aristophanes and won.     - The Death of Socrates ($1787$ painting by Jacques-Louis David): Represents the ultimate consequence of being convicted for impiety and corrupting the youth.

Freedom of the Press: Historical Evolution and Philosophical Defense

• Technological Catalyst: The Gutenberg Printing Press allowed for the mass dissemination of ideas.

• Institutional Control: Index Librorum Prohibitum ($1564$): A list created under the authority of Pope Pius IV to ban books considered dangerous to the faith.

• John Milton - "Areopagitica" ($1644$): A classic argument against licensing and censorship. Milton argued that:     - Censorship is unsustainable.     - Learning is discouraged.     - The whole nation is insulted.     - The government is discredited.     - Censorship is hostile to the truth.

• General John Peter Zenger Case ($1735$): Established important precedents in the colonies:     - Foundational argument against prior restraints.     - Established the idea that truth is a defense against seditious libel.

Legal Standards for Free Speech and Incitement

• Evolution of Doctrine: American law separated from English law, eventually becoming broader than the English standard.

• Scope: The First Amendment, as written, originally applied only to the federal government. "Speech" is interpreted broader than just words; "Press" now debates inclusion of modern formats like blogs.

• Clear and Present Danger Standard (Justice Holmes): Uses the proximity and harm model (e.g., the "Tort example" regarding the context of speech).

• Marketplace of Ideas: The theory that the remedy for bad speech is more speech.

• Brandenburg v. Ohio ($1969$):     - Involved KKK speech.     - Struck down an Ohio law.     - Test for Incitement:         - Is the speech imminent?         - What is the likelihood it will produce violence?

• Rice v. Paladin Press ($4th\,Cir., 1997$):     - Case regarding the book "Hit Man: A Technical Manual for Independent Contractors."     - Used in $3$ contract killings.     - The court upheld civil liability.     - SCOTUS denied cert.; the imminence requirement of Brandenburg did not apply to this specific type of technical speech.

• "Fighting Words": Speech that by its very utterance inflicts injury or tends to incite an immediate breach of the peace.

Specific Doctrines of Speech Regulation

• Overbreadth: A law is unconstitutional if it prohibits too much protected speech.     - Coates v. Cincinnati: Struck down a law regarding $3$ or more people acting in a "manner annoying to persons."     - Osborne v. OH ($1999$): SCOTUS upheld a conviction for child pornography under a statute outlawing "nude pictures of children." The Ohio Supreme Court narrowed the construction of the words to save the statute's constitutionality.

• Chilling Effects: Occurs when broad or vague laws cause people to self-censor for fear of prosecution.

• Void for Vagueness: A due process (DP) argument that a law must clearly define what it prohibits.

Prior Restraint, National Security, and Political Speech

• Prior Restraints: There is a heavy legal presumption against them.

• Historical Restraints:     - $1798$ Sedition Act.     - World War I Espionage Act.     - $1950s$ Subversive Group cases: Distinguishing between different groups (e.g., Communists vs. KKK).

• NY Times v. U.S. ($1971$) (Pentagon Papers case):     - Government bears a heavy burden for prior restraint injunctions.     - Questions raised: Is it a time of "war"? How specific is the information?     - Contemporary issues: National security involving NSA wiretap stories or bank account search stories.

Coerced Speech and Freedom of Association

• Coerced Speech (Compelled Expression):     - Barnette ($1943$): Jehovah's Witness case; students cannot be forced to recite the pledge of allegiance.     - Wooley v. Maynard ($1977$): New Hampshire cannot force residents to display the "Live Free or Die" slogan on license plates (also a JW case).     - Southworth ($2000$): UW student fees must be paid even if they support views the student disagrees with, provided the distribution is "viewpoint-neutral."     - Nat’l Inst. Of Fam. And Life Advocates v. Becerra ($2018$): California cannot force pregnancy centers to advertise abortion services.     - Masterpiece Cakeshop v. CO Civil Rights’ Comm’n ($2018$): A baker cannot be forced to put a specific message on a cake.     - Janus v. AFSCME ($2018$): Public sector union dues cannot be coerced if used for political activities.

• Membership in Groups:     - Hurley: Gays could be excluded from marching in a private parade because including them would change the public message of the organizers; forcing them to include the group would coerce them to express a view they disagreed with.     - Boy Scouts v. Dale ($2000$): The BSA has the right to exclude homosexual scoutmasters based on their right of expressive association.

Symbolic Speech and Expressive Conduct

• General Rule: Non-speech elements of conduct can be regulated to achieve legitimate government ends.

• Examples of Regulation:     - Prohibiting the burning of draft cards.     - Prohibiting sleeping in National Parks to protest homelessness.

• Texas v. Johnson ($1989$):     - Flag burning during the Republican Convention in Dallas is protected symbolic speech.     - Statutes must be viewpoint-neutral (e.g., Arson or city ordinances might apply, but not bans on the symbolic message itself).

Unprotected Speech: Fighting Words, Hate Speech, and Obscenity

• Treason: Not protected speech.

• Chaplinsky v NH ($1942$): Defined "fighting words" (‘damned Fascist and racketeer’).

• Hate Speech: Generally protected unless it crosses into incitement or threats; speech codes and hate crime laws must be content-neutral.

• VA v. Black ($2003$): Virginia can outlaw cross burning only if it is done with the intent to "intimidate."     - Justice Thomas’ Dissent: Thomas argued that cross burning is a "paradigmatic example" of the profane and carries a deep cultural meaning of terror that justifies a broader ban.

• Obscenity:     - "Fuck the Draft" printed on a jacket (Cohen v. California) is protected OK.     - Ashcroft v. Free Speech Coalition ($2002$): Struck down an overbroad statute.

Time, Place, and Manner Restrictions and Government Funding

• Regulation of Broadcast: FCC v. Pacifica: Regulation of indecent speech to nighttime hours is OK.

• Janet Jackson and CBS fine: Issues regarding a "captive audience" and the different standards for high school students vs. adults.

• Permits: Governments can require permits for parades and assemblies.

• Government Sponsorship:     - NEA: The government can limit speech to program goals.     - Rust v. Sullivan ($1991$): The US government can limit abortion counseling in federally funded clinics because of program specific goals.     - Velasquez: Government-paid lawyers cannot be prevented from challenging welfare laws.     - Harris v. Quinn ($2014$): Struck down an Illinois "fair share statute" requiring dues for public employee unions from home care workers.

Judicial Restraints on the Press and Newsroom Protections

• Prior Restraints and Publication Bans:     - Near v. Minn. ($1931$): Prior restraints are impermissible except for:         - Safety in wartime.         - Obscenity.         - Inciting government overthrow or violence.         - Invading private rights.

• Manuscripts: The CIA can require prior approval for manuscripts (e.g., books by former employees).

• Truthful Information: Richmond Newspapers ($1980$): No prosecution for truthful information lawfully gained.

• Access to Information:     - Nixon v. Warner Comm. ($1978$): Media has no special right of access beyond the general public.     - Zurcher v. Stanford Daily ($1978$): Search warrants of newsrooms are constitutional; however, Congress limited this access later via statute.

Broadcast vs. Print Media Regulation

• Medium Differences: Courts distinguish between Cable, Broadcast, and the Internet.

• FCC "Fairness Doctrine":     - Red Lion ($1969$): Upheld the fairness doctrine for broadcast due to limited airwaves.     - Miami Herald ($1974$): No "equal time" requirement for print media.

• Licensing: Broadcast is treated as a privilege, not an inherent right.

Libel Law and the Doctrine of Actual Malice

• General Defenses: Truth is an absolute defense to libel.

• Public Figures: Famous individuals receive less protection and must meet a higher burden of proof to sue for damages.

• NY Times v. Sullivan ($1964$):     - An Alabama police officer's damage award was overturned.     - There is no such thing as "seditious libel."     - Even false statements are protected unless made with "Actual Malice":         - Knowledge of falsity, or         - Reckless disregard for the truth.

• Journalistic Ethics: Courts examine whether standard journalistic practices were followed.

• Privacy and Gathering Information:     - Hustler v. Jerry Falwell: Protected offensive parody against public figures.     - Protection of sex crime victims' identities and financial info.     - Expectations of privacy relate to $4th\,A.$ issues.     - Includes the right not to speak.