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 great political 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 The New Constitution 1781 Articles of Confederation These did not have freedom of speech It was not until 1872 that they decided to revise the Articles 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 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 expression 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 Sedition in WW1 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 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 First Amendment was sort of weak The Smith Act overthrow of the government Defending the Limits of Freedom of Expression Smith Act A federal law adopted in 1940 that makes is illegal to advocate the violent Strict Scrutiny The
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