| Chapter 2 |
| A. First Amendment Background |
| 1. The Printing Press (1450s -) |
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"the right of kings" |
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sedition laws (criticizing the govt) |
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prior restraint |
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censorship |
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licensing |
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| 2. John Milton: Areopagitica (1644) |
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a defense of free speech/press |
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argues against prior restraint |
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however, certain types of speech shouldn't
be protected |
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speech that is: treasonous, blasphemous,
or slanderous |
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| 3. Zenger case (1734) |
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John Peter Zenger - publisher of the
New York Weekly Journal |
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paper published attacks on the Colonial
Governor (sedition) |
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clearly guilty under existing law |
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"no man should be imprisoned or
fined for publishing criticism of the government that was both truthful
and fair" |
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acquitted! |
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| 4. William Blackstone (1760s) |
| "Commentaries on the Law of England" |
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argued against prior restraint |
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but, not all speech should be protected |
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blasphemous |
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schismatical |
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immoral |
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scandalous |
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seditious |
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treasonable |
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| 5. Ben Franklin (1770s) |
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Liberty to discuss the propriety of public
measures and public opinions, "let us have as much of it as you please."
Liberty to calumniate another has limits." |
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(calumniate - to utter false statements,
charges, or imputations to impair the reputation of another) |
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what's the difference between Milton and Blackstone, and Franklin? |
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| 6. The Federalist papers (1780s) |
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debates over the philosophy of government |
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| The conflict |
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free and open debate is ideal |
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but, not all speech/press contributes
to free and open debate |
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where is the line drawn? if it is drawn
at all |
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truth? harm? utility? |
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7. Constitutional issues - First Amendment "Congress shall make no law ... abridging the freedom of speech or of the press" |
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government is rooted in the consent of
the governed |
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an informed electorate is necessary for
democracy |
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Justice Holmes - "the best test
of truth is the power of the thought to get itself accepted in the competition
of the market" |
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Prior restraint v. punishment after the
fact (chilling effect) |
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who is protected? |
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the government? the public (harm/right
to know)? the speaker? |
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| B. What does the First Amendment mean? |
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the First Amendment means what the Supreme
Court says it means |
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how does the SC determine that? |
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First Amendment theories |
| 1. Absolutist theory - "no law" means no law |
| 2. Ad hoc balancing theory |
| 3. Preferred position balancing theory |
| 4. Meiklejohnian theory |
| 5. Marketplace of ideas |
| 6. Access theory |
| 7. Self-realization |
| 8. Rational relationship (not in Calvert) |
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| C. Sedition |
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How far does the right to criticize the government go? (that which is false, scandalous or malicious?) (that which causes contempt of, or scorn for, the govt.?) (that which advocates the violent overthrow of the govt.) |
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| 1. Schenck v. U.S. (1919) |
| Charles Schenck published 15,000 leaflets protesting U.S. involvement in WW1. He called for young men to resist the draft. He was found guilty of violating the Espionage Act. |
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| "the character of every act depends upon the circumstances in which it was done ... The question in every case is whether the words used ... create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent" |
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during peacetime - okay, during wartime... |
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We should do something - not clear at some time - not present |
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| Holmes test - Congress has the right to outlaw certain kinds of conduct that might be harmful to the nation (and words that might push certain people toward violating the laws passed by Congress) |
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you can't yell fire in a crowded theater! |
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| 2. Brandenberg v. Ohio (1969) |
| Ku Klux Klan leader convicted for saying: |
| "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to supress the white Caucasian race, it's possible there might have to be some revengeance taken" |
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| Overturned conviction. "The Constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce or incite such actions." |
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advocacy of ideas v. incitement to unlawful
conduct |
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where is the line drawn? |
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ability to refute (more speech)? time
to consider? likelihood of action? reasonable person? |
Madonna - "Yes, I'm angry, yes I'm outraged, yes I have thought an awful lot about blowing up the White House, but I know that this won't change anything." |
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| What about Trump's January 6th speech? |
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| D. Prior Restraint |
| 1. Near v. Minnesota (1931) |
| Was the state law "overbroad" by enjoining the paper from publishing unless it could prove to the court that it would remain free of objectionable material? |
| when might prior restraint be permissible? |
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obscenity |
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material that incites people to acts
of violence |
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certain materials during wartime |
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notice the "open door" - prior
restraint is not prohibited absolutely |
| "It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits." |
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what does this mean? |
Matt. 13: 24-30 |
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could v. should |
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implications for Christians? |
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what if the Gospel were considered a
"noxious branch"? |