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Unformatted text preview: Table of Contents The Problem of "Dangerous" Speech Fi rst Amendment; Carolene Products n.4 (handout p. 1) • Carolene Products FN4: 3 categories of legislation/gov action that are subject to heightened scrutiny if it appears that gov is infringing on certain types of freedoms. Gov action that restricts freedom of expression falls into all three categories: o 1. Legislation that impinges on one of the rights/liberties protected in the Bill of Rights o 2. Legislation that restricts the political processes which can ordinarily be expected to bring about repeal of undesirable legislation Prohibiting people from expressing their opinions will undermine our democratic process (informed self-government and political accountability) o 3. Statutes directed at particular religious or national or racial minorities and statutes animated by prejudice against discrete and insular minorities (usually associated w/ EP) Tendency to trample on unpopular minority viewpoints Courts will apply STRICT SCRUTINY to statutes that do any of the above Holmes, the "clear and present danger" test, and the marketplace of ideas : (pp. 1061-78) Schenck v. United States ; • Schenck – published a circular urging people to petition to have the draft repealed and gave it to draftees • Both were convicted under the act • SC upholds convictions simply on the basis of words; regarded under Espionage law as attempts to interfere w/ the war effort o Holmes : there’s a distinction between agitation against the draft system (protected) and a direct incitement to violent resistance (not protected) o Jarring to find an individual can be convicted of espionage b/c his/her words had a tendency to cause some kind of significant harm at some undetermined point in the future o Big Red Scare going on; even Holmes was caught up in It—voted to uphold convictions 1 Holmes lays groundwork for more protection in the future in Shenck by writing about context---clear and present danger associated w/ yelling Fire! In a crowded theater and the fact that the nation was at war certain things tolerated during peace will not be during war Abrams v. United States; • Abrams : pamphlets being issued by Communist sympathizers and Holmes uses the clear and present danger test from Schenk to PROTECT freedom of speech in his dissent (convictions are upheld); places much more emphasis on the immediacy of the threat than in earlier decisions; immediacy of threat means gov can suppress the speech o Majority endorses the idea that if there is speech that has a foreseeable tendency to cause this harm at some point in the future—that’s enough and gov can act • Holmes, Marketplace of Ideas: “the ultimate good desired is better reached by free trade in ideas— that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” o Lays the groundwork for modern theory: there’s a difference between advocacy and incitement...
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- Spring '10
- Law, Gov, First Amendment to the United States Constitution