Notes on Free Speach

Creation Timeline:
- Primarily established during the 20th and 21st centuries.
English Common Law:
- 17th-century licensing laws enforced prior restraint on publications.
Milton's Areopagitica:
- Published in response to licensing system of 1643, promoting freedom of speech and endorsing a marketplace of ideas.
- Quote: "It's all about preventing censorship."
John Stuart Mill's On Liberty:
- Discusses the importance of individual liberties and free speech.
Case of John Peter Zenger:
- A notable early case advocating for freedom of the press.

Alien Act (1798):
- Granted the President deportation powers concerning non-citizens.
Sedition Act (1798):
- Criminalized criticism of the government.
- Trials under this act faced heavy criticism and were a contributing factor to the Federalist loss in 1800.
- Ultimately repealed or expired without Supreme Court testing (notably before Marbury v. Madison in 1803).

Interpretation:
- The Bill of Rights did not introduce new principles but merely codified existing guarantees and immunities inherited from English law.
Key Quote:
- "Thus the freedom of speech and of the press… does not permit the publication of libels, blasphemous or indecent articles or other publications injurious to public morals or private reputation."
Related Case:
- Patterson v. Colorado (1908).

"Clear and Present Danger" Test:
- Established by this case as a balancing test against the state’s interests.
Background of Case:
- Charles Schenck, General Secretary of the U.S. Socialist Party, argued against the draft in a pamphlet claiming it was unconstitutional.
- Convicted under the Espionage Act of 1917, during a time of patriotic fervor in America.
Outcome:
- Unanimous Court upheld conviction, ruling that free speech is not absolute, especially during wartime.
Key Principle:
- "Fire in a crowded theater" metaphor indicating limits to free speech in specific contexts.
- Watson creates an ongoing precedent for wartime restrictions of free speech.

Thirteenth Amendment, Section 1:
- Prohibits slavery and involuntary servitude except as a punishment for crime.
Concept of Liberty:
- The speech emphasizes that individual freedom is sacred and integral to democracy.
- Cautions against despotism under the guise of representative governance.
Conscription Argument:
- Conscription viewed as a violation of personal liberty—compelling individuals to fight against their will.
- Comparison of conscription to servitude and calls for resistance.

Overview:
- Eugene Debs, a union activist and Socialist Party leader, made a speech in Ohio condemning the government's actions.
Impact of Decision:
- Marked a return to the "bad tendency" test with conviction upheld under the Sedition Act.

Overview:
- Upheld Frohwerk’s conviction under the Espionage Act.
Development of Doctrine:
- Expanded upon the clear and present danger test, indicating that not all speech in wartime constitutes a crime.
Significant Quote:
- "We do not lose our right to condemn either measures or men because the country is at war."

Context:
- Hyman Rosansky and several others arrested for distributing anti-war propaganda during WWI.
Majority Opinion:
- Justice Clarke noted their actions aimed at exciting disaffection and sedition.
Dissenting Opinion by Oliver Wendell Holmes:
- Advocated for a marketplace of ideas, indicating that the best test of truth is competition in debate and ideas.

Case Background:
- Benjamin Gitlow charged with criminal anarchy under NY Criminal Anarchy Law of 1902.
Supreme Court Decision:
- Freedom of speech is protected under the First Amendment from government abridgment by the Due Process Clause of the Fourteenth Amendment.
Significance:
- First case argued by the ACLU, marking a significant step in the incorporation of the First Amendment to apply to state laws.

United States v. Carolene Products (1938):
- Discussed special conditions requiring more scrutiny concerning prejudice against discrete and insular minorities.
Consequential Development:
- The doctrine emphasizes narrow tailoring to meet compelling state interests.
Related Case:
- Schneider v. State of NJ (1938).

Incident Overview:
- Father Arthur Terminiello’s inflammatory speech leads to public unrest; he was convicted of breach of the peace.
Justice Douglas’s Opinion:
- Emphasized the importance of free speech as a catalyst for government reflection on the public’s will and a vehicle for peaceful change.

Legal Context:
- Encompasses the 1940 Smith Act during the Cold War focusing on advocacy.
Caveats of Smith Act:
- Limited interpretations of earlier precedents such as Yates.
Black Dissent:
- Notable opposition from Justice Black on the interpretational principles.

Case Facts:
- Feiner, notable for inflammatory speech, was arrested for his conduct rather than the content of his speech.
Supreme Court Ruling:
- Upheld his conviction regardless of the content, emphasizing public order over free expression.

Contextual Reinterpretation:
- Revises the application of the Smith Act limiting its effects following Dennis precedent.

Background:
- Case arises in the context of post-Brown v. Board of Education (1954). The case addressed issues of free speech and association, emphasizing the importance of protecting civil liberties in the face of legislative inquiries.
Ruling and Implications:
- No significant connection between NAACP membership and Communist interests; hence, there was no compelling governmental interest infringed upon.