First Amendment
U.S. Constitution ratified in 1789
Bill of Rights added 1791
Incorporation Doctrine
By its terms, 1st Amendment applies only to the federal government: “Congress shall make no law . . . abridging the freedom of speech or of the press; . . .”
Gitlow v. New York (1925) - 1st Amendment applies to the states
Incorporation of the provisions of the Bill of Rights into the 14th Amendment’s due process clause: Section 1 mandates in part that “nor shall any State deprive any person of life, liberty, or property, without due process of law”.
Incorporation’s rationale
NB: 1st Amendment applies only to governmental action, not private action
Hence, no violation of 1st Amendment rights:
- Copyright
- Corporate censorship
Rationales for Free Speech
Abrams v. U.S., 250 U.S. 616 (1919)
Defendants argue:
1. Speech was protected by 1st Amendment and Espionage Act is unconstitutional
2. Not sufficient evidence in the record to support the verdict of guilty
Majority upholds conviction – 20 year sentence
Oliver Wendell Holmes, Jr. (1841-1935) dissents:
1. Clear and present danger test – not a 1st Amendment absolutist
2. “Free trade of ideas” – rationale for 1st Amendment
Whitney v. California, 274 U.S. 357 (1927)
Louis Brandeis (1856-1941) concurs with the majority
Nonetheless gives impassioned plea for free speech
1. Clear and present danger test
- Notes that contours are not clear
- Danger must be real – “Men feared witches and burnt women”
- Danger must be serious one to the state
2. “Free trade of ideas” – variation
- “the remedy to be applied is more speech, not enforced silence”
Obscenity
Roth v. U.S., 354 U.S. 476 (1957)
I. Can obscenity be constitutionally suppressed?
“[I]mplicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . We hold that obscenity is not within the area of constitutionally protected speech or press.”
II. What constitutes obscenity?
It is not the same as sex - “It is . . . vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.”
Test of obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
Miller v. California, 413 U.S. 15 (1973)
Guidelines:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Reaffirmed Roth’s holding that obscene material was not constitutionally protected
Notes that “prurient, patently offensive depiction or description of sexual conduct . . . [that has] serious literary, artistic, political, or scientific value . . . merit[s] First Amendment protection.”
The Miller standards have provided a more or less lasting test
Prior Restraint
Near v. Minnesota, 283 U.S. 697 (1931)
Statute allowed abatement of newspaper article and then permanently enjoining the author from further similar publications
William Blackstone (1723-80)
- “The liberty of the press consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
The court agrees:
- “For whatever wrong the appellant has committed or may commit, by his publications, the state appropriately affords both public and private redress by its libel laws.”
Freedom from prior restraint is not absolute
- At a time of war certain limits
- Words that may have the effect of force, e.g., incitement to violence
Reporter’s Privilege: Shielding Sources
Branzburgh v. Hayes, 408 U.S. 665 (1972)
All the cases based their defense of their refusal to testify in part on the 1st Amendment - to be forced to identify sources is to the detriment of the free flow of information protected by the 1st Amendment
Court held: “[W]e perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”
A reporter has no absolute privilege flowing from the 1st Amendment not to appear and testify in judicial proceedings
With the absence of absolute immunity, the refusal to reveal sources and testify may end in with the reporter being charged with contempt resulting in a fine and/or jail
Importance of the privilege:
(1) encourages the free flow of information to the public
(2) corruption in government might go unreported
(3) the physical safety or economic security of sources might be jeopardized
State Law
Supremacy Clause
Article. VI, Clause 2 of the US Constitution states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Federal law trumps state law, i.e., federal law is supreme
While the States may have laws regarding the suppression or allowance of speech, these cannot be more restrictive than federal law.
- state law cannot prohibit what federal law allows
If federal law makes something a crime, state law cannot de-criminalize this
- state law cannot invalidate federal prohibitions
Idaho
Article I, Section 9 of the Constitution of the State of Idaho:
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.
According to the case law, this does not grant more liberty than the US Constitution’s 1st Amendment