development of freedom of speech

Development of Freedom of Speech

Chapter 2

• Benjamin Harris’s paper• Shut down after 1st issue

Andrew Hamilton (hand extended) defends Peter Zenger

Speech as “the” American right? First Amendment’s absolute wording• Congress shall pass no law

• Cf. “unreasonable search and seizure”

• Cf. freedom from excessive bail

• “First-ness” a quirk of history

Anti-speech legislation usually associated with wartime

•Alien and Sedition Acts•Espionage Act•Smith Act

Patriot ActPassed swiftly in response to 9/11Provides extraordinary executive powers

Makes FOIA requests more difficultExpands use of “national security letters”

Development of First Amendment doctrine

Charles Schenck

Schenck v. U.S. (Clear and Present Danger test)

Abrams v. U.S.(marketplace of ideas)

Jacob Abrams

Gitlow v. New York(applies First Amendment to states)

Benjamin Gitlow

Whitney v. California(more speech, not “enforced silence”)

Brandenburg v Ohio(imminent lawless action)

Clarence Brandenburg

Some applications of Brandenburg test

(Herceg v. Hustler)

Some applications of Brandenburg test

(Rice v. Paladin Enterprises)

Some applications of Brandenburg test

(American Freedom Defense Initiative v. WMATA)

Some applications of Brandenburg test

Olivia N. v. NBC (Born Innocent)

Byers v. Edmondson (Natural Born Killers)

Some applications of Brandenburg test

Million Youth March

Theories of Freedom of Speech

Freedom only from Prior Restraint?AbsolutismKennedy’s “absolutism with exceptions”MeiklejohnianAccess BalancingTwo StepAd HocPreferred Position

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A Prior Restraint case from the Cold War era

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A riff on “absolutism”

Why is Free Speech Important?

Seeking Truth• J. S. Mill• DuVal’s Pact with the Devil

• Jensen’s “Pot Luck”

Robert Jensen

Why is Free Speech Important?

Self-Fulfillment

C Edwin Baker

Why is Free Speech Important?Self-Governing

Alexander Meilkejohn

Why is Free Speech Important?

Safety Valve

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Why is Free Speech Important?

Checking Function Lousy People

What does Free Speech protect?

Speaking and Publishing

What does Free Speech protect?

Choosing NOT to speak

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What does Free Speech protect?

Listening or Reading

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What does Free Speech protect?

Symbolic Conduct

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Time, Place and Manner restrictions

Keep it down in there, will you?

Public Forum Doctrine

•Pure (quintessential)•Limited•Non-public

The Business of Communication:The government as speaker?

The Business of Communication:The government as speaker?

The Business of Communication:Antitrust

The Business of Communication:Taxation

The Business of Communication:Workplace Law

My BFOQ’s got me this gig.

Student Speakers

Mary Beth Tinker

Student Speakers

Matthew Fraser

Student Speakers

Kathy Kuhlmeier

Student Speakers

Student Speakers

Justin Layshock

Government EmployeesMarvin Pickering

Government Employees

Former judgeVincent Sicari (aka “Vince August”

First Amendment & Soldiers