Short Freedom of Expression

Short Freedom of Expression - CONSTITUTIONAL LAW II Prof....

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CONSTITUTIONAL LAW II Prof. Stern, Fall 2009 THE PROBLEM OF “DANGEROUS” SPEECH Determining if regulation is Content Neutral Tips Would the harm the govt is trying to prevent exist to the same degree if the listener/reader did not understand English If not the regulation is probably content based If Content Based use Strict Scrutiny o Necessary to achieve a compelling governmental purpose and there is no less restrictive way of handling it Holmes, the “Clear and Present Danger Test” Schenck and Debs : Both cases dealt with the Anti-espionage Act of 1917. o Schenck – published a circular urging people to petition to have the draft repealed o Debs – Debs was a leader of the socialist party and delivered a speech opposing WWI o Both were convicted under the act o SC upholds convictions simply on the basis of words; regarded under Espionage law as attempts to interfere w/ the war effort Holmes : there’s a distinction between agitation against the draft system (protected) and a direct incitement to violent resistance (not protected) Holmes lays groundwork for more protection in the future in Shenck by writing ab context---clear and present danger associated w/ yelling Fire! In a crowded theater. Abrams : pamphlets being issued by Communist sympathizers and Homes 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.” Lays the groundwork for modern theory: there’s a difference between advocacy and incitement Gitlow v. NY : Gitlow, a left wing member of the NY Socialist Party, published an article that advocated communist revolution through violent means. Even though his article did not cause violence to occur, Gitlow was convicted for advocating the overthrow of the government under a NY criminal anarchy act. Holding – the court upheld the convictions based on the Bad Tendency test o A state can forbid speech that tends to result in action that is dangerous to public security, even if the speech doesn’t actually present a “clear and present danger” to public security. Holmes Dissent
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This note was uploaded on 04/05/2010 for the course LAW LAW5502 taught by Professor Stern during the Spring '10 term at Florida State College.

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Short Freedom of Expression - CONSTITUTIONAL LAW II Prof....

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