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Introduction to the Free Speech Clause [First Amendment in the Bill of Rights]
law.umkc ^ | not given | Law.umkc.edu

Posted on 10/19/2009 3:21:19 PM PDT by Salvation

Introduction to the Free Speech Clause
The issues: What events influenced the thinking of the framers about the right of free speech? 
What is the original understanding of the First Amendment? 

What values does the Free Speech Clause serve? 
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. 

Introduction

Although First Amendment jurisprudence is almost entirely a creation that began in the 20th century, common law protection for free speech began much earlier, in the 18th and 19th centuries.

The trial of printer John Peter Zenger in 1735 was a landmark in the development of common law protection for free speech.  In the Zenger case, a New York jury returned a verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England where juries were permitted only to decide whether the defendant printed the allegedly libelous words.  As a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable.

In England, meanwhile, thinking about free speech issues was strongly influenced by William Blackstone who, in his Commentaries on the Laws of England (1769), wrote of the liberty of press as consisting "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

Blackstone's view of no prior restraints formed the bare minimum of protection that James Madison intended to protect when he, as a congressman from Virginia in the first House of Representatives, drafted the Bill of Rights.  Of course, most observers believe that Madison meant to protect a great deal more speech than Blackstone might have been inclined to protect. 

Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech.  One proposed amendment said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable."  The other proposed amendment of Madison read: "No state shall violate the equal rights of conscience, or of the press."  Congress, however, did not support Madison's efforts to apply free speech protections against the states, even though Madison called that amendment the "most valuable amendment on the whole list."  (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)


James Madison, drafter of the First Amendment.

Just seven years after adoption of the First Amendment, Congress passed the Sedition Act of 1798.  The Act was enforced against Republican papers in an effort to keep Jefferson's party from defeating the Federalists in the 1800 election.  Jefferson won anyway, and the Sedition Act expired by its own terms in 1801, without ever being tested by the Supreme Court.  The Act did, however, touch off a lively debate on free speech issues and prompted both Madison and Jefferson to write discourses on freedom of speech and the press.

Although a few First Amendment cases, often involving obscenity, were decided by the federal courts in the 1800s, it was not until World War I that the Supreme Court really began to develop the jurisprudence that will be our study.

Questions

1. If a referendum were held today on whether to adopt the First Amendment, do you think it would pass?
2.  Polls show that most Americans support free speech in theory, but when asked more specific questions such as "Should Americans be free to advocate communism?" most persons polled are far less willing to support free speech values.  How to you explain this?
3.  Which of the three general approaches to First Amendment analysis is best?  Why?  What are the advantages and disadvantages of each approach?
4.  Which of the values served by the Free Speech Clause to you consider to be the most important?  Why?
5.  What are some of the costs of protecting free speech?  Which are the most significant costs in your opinion?
6.  The First Amendment says that Congress shall not abridge "the freedom of speech"?  Is that different that a prohibition on abridging "speech"?
7.  What does the prohibition on abridging the freedom of the press protect that would not be protected by the prohibition on abridging the freedom of speech?  Are reporters protected in ways that other Americans are not?


TOPICS: Constitution/Conservatism; Front Page News; Government; News/Current Events
KEYWORDS: americans4prosperity; beck; billofrights; energy; firstamendment; freedomofspeech; freespech; healthcare; internet; kochbrothers; military; netneutrality; obama; obamacare; palin; veterans
Glenn Beck is going to be covering Free Speech and what the Obama administration is going to be doing to squelch/control it (Thursday) during this upcoming week.

PS. I am not an attorney, just an attorney's mother!

1 posted on 10/19/2009 3:21:27 PM PDT by Salvation
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To: All
More here


The burning of John Peter Zenger's The New York Weekly Journal.  Zenger was tried in 1735 on charges of seditious libel, but was acquitted by a jury in what  is a landmark in free speech law.  For information on the Zenger case see: ZENGER TRIAL
 Three Possible Approaches to 
First Amendment Analysis
1. The Absolutist Approach 
The absolutist approach is most often associated with Justice Black, who held that the First Amendment meant exactly what it says: that Congress shall make NO law abridging the freedom of speech.  Under this approach, the only question is whether the action in conduct is truly "speech" (and therefore protected) or "conduct" (and therefore subject to reasonable governmental regulation.  Even absolutists such as Justice Black recognized that words might be so closely connected with producing a specific action (such as entering into a contract with a hitman or yelling "Fire!" in a crowded theater) as to be unprotected.
2. The Categorical Approach
The categorical approach would protect or not protect speech based on the label that is attached to the speech in question.  Certain categories of speech are seen (such as, for example, obscenity or "fighting words" or--at one time--commercial speech) as falling entirely outside of First Amendment protection, whereas most other categories of speech are either highly protected or protected absolutely.
3. The Balancing Approach
The balancing approach rejects the absolutist approach as impracticable and the categorical approach as artificial.  Balancers believe that in every case courts should weigh the individual's interest in free expression against the government's interest in restricting the speech in question.  Most balancers hold that the presumption should be in favor of free expression--that there is a thumb on that side of the scale--which can only be overcome with a showing of an especially strong governmental interest.   (Some commentators have distinguished between "definitional" and "categorical" balancers.  The definitional balancers favor the sort of ad hoc balancing in which every individual factual difference of a particular defendant could affect the balancing, whereas the categorical balancers look at the interests of speakers in the category that the includes the defendant.)
 Values Served by the Protecting of Free Speech
1. The Discovery of Truth
This value was first suggested by Milton, who first suggested that when truth and falsehood are allowed to freely grapple, truth will win out.
2. Facilitating Participation by Citizens in Political Decision-Making
It has been suggested that citizens will not make wise and informed choices in elections if candidates and proponents of certain policies are restricted in their ability to communicate positions.
3.  Creating a More Adaptable and Stable Community (The "Safety Valve" Function)
It has been suggested that a society in which angry and alienated citizens are allowed to speak their mind--"vent"--will be more stable, as people will be less likely to resort to violence.  It has also been pointed out that allowing the alienated and discontented to speak freely enables government to better monitor potentially dangerous groups who would otherwise act more clandestinely.
4.  Assuring Individual Self-Fulfillment
Free speech enables individuals to express themselves, create and identify--and, in the process perhaps, find kindred spirits.  Freedom of speech thus becomes an aspect of human dignity.
5.  Checking Abuse of Governmental Power
As Watergate, Irangate, Clintongate (and all the other "gates") demonstrate, freedom of the press enables citizens to learn about abuses of power--and then do something about the abuse at the ballot box, if they feel so moved.
6.  Promoting Tolerance
It has been argued that freedom of speech, especially through our  practice of extending protection to speech that we find hateful or personally upsetting, teaches us to become more tolerant in other aspects of life--and that a more tolerant society is a better society.
7.  Creating a More Robust and Interesting Community
A community in which free speech is valued and protected is likely to be a more energized, creative society as its citizens actively fulfill themselves in many diverse and interesting ways.
Links
First Amendment Center
A Panoramic History of the First Amendment (Ostrowski)

American Library Association
Reporters Committee for Freedom of the Press

Freedom Forum Site
Notes on Learning

2 posted on 10/19/2009 3:22:33 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: Jim Robinson

Thursday — trying to control the internet.

As I understood it, something is coming up in Congress. Maybe you have been following this and know more.


3 posted on 10/19/2009 3:24:23 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: Salvation

good thread, thanx, Sal.


4 posted on 10/19/2009 3:27:03 PM PDT by knarf
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To: knarf; Admin Moderator

Thanks, knarf.

Admin Mod, to we need to put (Internet Alert!) after that title.

In my opinion we do. The Obama Administration is coming after the internet!


5 posted on 10/19/2009 3:28:55 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: Salvation

Thou shalt not criticize Lord Zero.


6 posted on 10/19/2009 3:33:07 PM PDT by Chuckster (Neca eos omnes. Deus suos agnoscet)
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To: Salvation

SAVE


7 posted on 10/19/2009 3:34:28 PM PDT by Rumplemeyer
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To: Salvation

Lot’s of information here, too: http://www.firstamendmentcenter.org/

A search on the site for the word “internet” gets lots of results.


8 posted on 10/19/2009 3:38:13 PM PDT by fullchroma (Obama: GET OUT OF MY DOCTOR'S OFFICE!)
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To: Salvation
It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.

My antennae go up when an author explicitly or kinda, sorta implies that the states needed the 14th amendment to ensure 1st Amendment rights. The states created the federal government and most of the thirteen original ones preceded our Constitution by over 100 years. It is a pity and a serious blow to our liberties that federalism is gone and the states have been reduced to sniveling vassals of the federal government.

9 posted on 10/19/2009 3:42:12 PM PDT by Jacquerie (Understand Natural Law and understand our Declaration of Independence & Constitution.)
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To: fullchroma

Wow! Thanks for that.


10 posted on 10/19/2009 3:47:00 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: Jacquerie

Were states trying to circumnavigate the First Amendment? Like I said above, I am not an attorney — just the mother of one!

Inquiring mind here!


11 posted on 10/19/2009 3:49:47 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: Salvation

The 1st Amendment Free speech clause only applies to GOVERNMENT entities....just like the 2nd! LOL.


12 posted on 10/19/2009 3:52:10 PM PDT by 2harddrive
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To: Salvation

Great stuff.


13 posted on 10/19/2009 7:45:36 PM PDT by 1010RD (First Do No Harm)
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To: 1010RD; All; Jim Robinson
From Will Kerpen who was on Beck's program today. Bolding and largers fonts are from me.

Americans for Prosperity

Dear----------,

As important as all the fights are that we're in right now, perhaps the biggest of all is the fight over whether the government will take over the Internet.  That's because as long as the Internet is free, we can use it to communicate, educate, and organize.  Tea parties, townhalls, and AFP events would be very difficult to organize if government owned and controlled the Internet and chose to interfere with it.  That's what's at stake this week as the Federal Communications Commission decides on Thursday whether to move forward with so-called "net neutrality" regulations.

The net neutrality movement is an outgrowth of the larger so-called media reform project of radical left-wing activists like Robert McChesney who seek to destroy private control of the country's communications systems. 

I discussed McChesney and the so-called media reform movement last night on the Glenn Beck show, and you can watch that clip here.  I'll be on with Glenn again tonight to discuss net neutrality specifically.

As the Internet Freedom Coalition shows on our Net Neutrality Scare Ticket it has now been nearly 7 years since the November 19, 2002 letter that started the net neutrality scare, without a single significant incident of the kind of egregious behavior by evil phone and cable companies we're told require government intervention.  It's a solution in search of a problem.

Net neutrality sounds simple--force phone and cable companies to treat every bit of information the same way--until you realize that modern networks are incredibly complex, with millions of lines of code in every router.  Making sure services like VoIP, video conferencing, and telemedicine (not to mention the next great thing that hasn't been invented yet) get priority may be necessary to make the Internet work. But the government is working to do just the opposite.

These networks cost billions of dollars to build and maintain, and if there is uncertainty whether there will be a good return on that investment, private investment will dry up.  And then government will step in, spending billions of our tax dollars on a government-owned and controlled Internet.

That's their plan.

The push for a Washington takeover of the Internet is coming from the White House.  It includes Susan Crawford, the so-called Internet Czar, who told The Wall Street Journal in April that the $7.2 billion of stimulus money for broadband she is helping spend is a "down payment on future government investments in the Internet."  She went on to say: "We should do a better job as a nation of making sure fast, affordable broadband is as ubiquitous as electricity, water, snail mail or any other public utility."

It comes right from the top.  President Obama himself said on the campaign trail: "I will take a backseat to no one in my commitment to Net Neutrality."

The FCC will vote Thursday on what it calls a Notice of Proposed Rulemaking on Net Neutrality.  If it passes, it will start a public comment period and I'll be emailing you again with instructions on how to file comments.  But for the next couple days, we need to make our case against the FCC even taking that first step down the road to a Washington takeover of the Internet. 

Here's what you can do to help: The FCC created a website at www.OpenInternet.gov where you can comment on government regulating the Internet under so-called net neutrality rules.  The left has been flooding it with comments.  Please take a moment to head over to www.OpenInternet.gov and click on "Join the Discussion" to make your voice heard for keeping the Internet in private hands.

Thanks for all you do.

Phil Kerpen

Director of Policy, Americans for Prosperity
Chairman, The Internet Freedom Coalition

P.S. Wanted to remind you again that you can see me tonight on the Glenn Beck program on FOX News at 5PM and 2AM Eastern, 2PM and 11PM Pacific.  You can also contact me any time through Twitter (http://twitter.com/kerpen) or Facebook (http://facebook.com/PhilKerpen).


14 posted on 10/20/2009 3:13:10 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: All

Posted because of the net neutrality vote coming up this Thursday!


15 posted on 10/20/2009 8:41:18 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: Salvation

We’ve got so many fights on so many fronts. Thanks for keeping up on this.


16 posted on 10/21/2009 4:09:19 AM PDT by 1010RD (First Do No Harm)
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