Chapter 2 The First Amendment: wellspring for nearly all U.S laws on freedom of speech and press. -Free expression traces back to Socrates and Plate. The modern history of freedom of press began when printing developed (16 and 17th centuries). Freedom of the Press in England - Seditious libel: libeling the government. Criticizing the government or government officers. It is sometimes called sedition. - Licensing: permission to print a paper or operate a broadcasting station. Licensing of printed press in the US ended in the 1720'a - Prior Restraint: Republication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment punisher of a perpetrator after the material has been published or broadcast. - Bonds: large sums of money -The printing press broke the Crown's monopoly of the flow of information, and therefore control of printing was essential. -Seditious libel laws were used to punish those who criticized the crown or government, whether it was truthful or not. -There were also a lot of license and prior restraint laws. -As democracy grew, it was harder for the English government to regulate printing. -They English had control over American printing during the colonial era, but it was less successful. Freedom of the Press in Colonial America - Jury Nullification: The controversial power of a jury, despite its sworn duty under oath to apply a law as interpreted and instructed by a judge, to instead ignore (and thereby to "nullify") a law and decide a case according to its of conscience and sensibilities, or as the US Supreme Court once put it, the ability of a jury to acquit "in the teeth of both laws and facts." -England did was less successful in restricting American printing. -Eventually, licensing ended. -However, the taxes levied against the press were seen as censorship by American printers. -John Peter Zenger was an immigrant printer who wrote things about the government, and was tried for sedition. However, thanks to jury nullification, he was acquitted. This was a greatpolitical triumph but it did not change the law of seditious libel. This means the case did not set an important legal precedent. -Printers were still punished for libel after that, but a lot of freedom of speech started. -However, this is in part because people shared the similar ideas, so they were not afraid. -When someone printed something that many did not agree with, they would be punished or shunned. (Example: Boston printers against the revolution would get attacked.) Community Censorship, Then and Now - Heckler's Veto: A situation that occurs when the audience's negative, adverse and sometimes violent reaction to the message conveyed by a peaceful speaker is allowed to control and silence the speaker. The duty, instead, should be on the government to protect the speaker rather than to allow a "veto" of the speech by the audience. -Community censorship is being censored by private people or businesses trough pressure. It amounts to self censorship. -The First Amendment does not protect against community censorship. The First Amendment -1781 = Articles of Confederation. These did not have freedom of speech. It was not until 1872 that they decided to revise the Articles. The New Constitution -Adding the Bill of Rights to the constitution was thoroughly debated. -The original amendment concerning freedom of speech was changed several times. Today, it 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." Freedom of Expression in the 18th Century -Most everyone agrees that freedom of speech meant at least the right to be free from prior restraint or licensing. -It also precluded prosecutions for seditious libel. -It's really hard to tell what "freedom of speech" meant to Americans back then. (1790s) - Symbolic speech doctrine: The two-part judicial test used to determine when conduct should be considered "speech". The person engaging in the conduct (called actor) must be intending to convey a message and there must be a big likely hood that the audience will understand the message. Freedom of Expression Today-there are seven important First Amendment theories or strategies that help judges develop a practical definition of freedom of expression: - absolutist theory: the government cannot censor the press for any reason. No exceptions. Few have adopted an absolutist position. - Ad Hoc Balancing Theory: the court balances freedom of expression with other values. (example: military secrecy might sometimes come before freedom of press). - Preferred Position Theory: like Ad Hoc Balancing but more tilted towards freedom of expression. - Meiklejohnian theory: Expression that relates to the self-governing process must be protected directly by the First Amendment. - Marketplace of Ideas: free and fair competition of ideas is alright because the truth will be discovered. - Access theory: The public should have access and a say on what the media prints. - Self-Realization/Self-Fulfillment Theory: speech is important to an individual regardless of its impact on politics or its benefit to society as a large. The Meaning of Freedom -Three topics are at the heart of the struggle to define the meaning of freedom. - The power of the state to limit criticism or published attacks on the government. - The power of the state to use taxation to censor the press. - The power of the government to forbid the publication of ideas or information it believes to be harmful. Alien and Sedition Acts - Alien and Sedition Acts of 1798: Laws adopted by the Federalist Congress aimed at stopping criticism of the national government by Republican or Jeffersonian editors and politicians. Sedition in WW1 - Espionage Act: A law adopted by Congress in 1917 that outlawed criticism of the US government and its participation in WW1 in Europe. - Sedition Act of 1918: An amendment to the Espionage Act in the midst of WW1 that severely limited criticism of the government and criticism of US participation in the European war. Made it a crime to obstruct the recruiting service. - Criminal Syndicalism Laws: Laws that outlaw advocacy, planning or processes aimed at establishing control over industry by workers or trade unions. -A time in which the
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