Download 4 MB 22nd Jan 2015 00 First Amendment

You have to know history

Invention of printing press led to fear from those
in control
 John Milton (1644) argued for freedom of the
press Areopagitica


Seditious libel:


Argued for Protestant English men to have the right to
free expression
Law against print with ill opinions of the government
or advocated change
Publications critical of the king were looked at as
treason

1663 William Twyn killed for printing a book
1735 Trial of John Peter Zenger

NY Gov. William
Cosby angered
colonists
 Citizens fought back
with own newspaper
(Zenger printed)
 Zenger arrested for
seditious libel
 Defended by Andrew
Hamilton

Argued against
tyranny and truth and
won
Reasons for Freedom of Speech:

Social Reasons: provides some functional
benefits to society.

Discovery of Truth:
• freedom of speech and is essential if individuals and ultimately
society are to move toward the truth.

Participation in Democracy:
• voters are more likely to participate meaningfully in democracy

Check on Government:
• deters or brings to light abuses of power by public officials

Social Stability:
• free flow of information allows for society to see its problems
better and to respond
The First Amendment reads:
 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.
Restrictions:

Prior Restraint: The First Amendment guarantee
most clearly protects against prior restraints made
upon the content of speech

Near v Minnesota: 1931
• Most important decision formalizing the doctrine against prior
restraint
• Newspaper practiced extorting money from Prohibition
lawbreakers


also published articles charging that public officials
local court got a injunction from the court and prohibited future
publications
• Supreme Court’s 5-4 decision ruled the state’s prior restraint of
future issues was unconstitutional.
Restrictions:
 Punishment



After the Fact:
Generally considered a more acceptable way to
deter irresponsible speech
Allows the communicator to make a reasoned
decision about whether something can and
should be expressed, and then pay the price
Subsequent sanctions against speech usually
come in three basic forms:
• Contempt citations
• Enforcement of criminal statutes and regulations
• Private lawsuits
The States MUST Adhere
 Gitlow


v. New York 268 U.S. 652 (1925)
United States Supreme Court rules that,
through the 14th Amendment, the Bill of Rights
applies to the states and trumps any state law
or state constitution
14th Amendment guarantees due process and
prohibits state or local governments from
depriving a person of due process
The States MUST Adhere
 Gitlow



v. New York 268 U.S. 652 (1925)
Repeals an 1833 Supreme Court Decision
(Barron v. Baltimore) that said the Bill of Rights
only applied to the Federal Government
14th Amendment comes in 1968
“Barron” still the precedent for almost 60 years
The States MUST Adhere
 Gitlow


v. New York 268 U.S. 652 (1925)
Bill of Rights extension an unintended
consequence
Socialist Benjamin Gitlow, author of "Left Wing
Manifesto"
• Advocated overthrowing the government
• Convicted of criminal anarchy

Supreme Court affirms his conviction
• Speech may be restricted if it presents a “clear and
present danger”
The States MUST Adhere
 Gitlow

v. New York 268 U.S. 652 (1925)
Justice Edward Terry Sanford writes: “For
present purposes we may and do assume that
freedom of speech and of the press-which are
protected by the First Amendment from
abridgment by Congress-are among the
fundamental personal rights and 'liberties'
protected by the due process clause of the
Fourteenth Amendment from impairment by the
States.”