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Unformatted text preview: E ARLY H ISTORY OF F REEDOM OF S PEECH First Amendment : Text : 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. US v. Carolene Products Co (1938, fn.4) (handout p. 3) - Lists several instances of governmental action that courts scrutinize more carefully than others- Issue : At what point does the governmental regulation or support of a private party become so pervasive and substantial that we can attribute the actions of the private party to the state as well?- Rule : Government cannot restrict people from trying to repeal unconstitutional legislation. Nor can government make statutes directed at religious, ethnic, or racial minorities . Theories of Free Speech : Utilitarian Rationale : Marketplace of ideas theory. The best way to arrive at the truth is by encouraging circulation of all ideas and information, allowing the most compelling ideas to win. No suppression of ideas is allowed. Democratic Rationale : Shared by the framers of the constitution. They wanted to protect the rights of everyone to engage in public discussion on matters of public importance. This protects the most important forms of speech. Libertarian Rationale : Instead of being concerned with free speech as a whole, free speech should be protected simply because of the benefit doing so brings to the individuals engaging in it. The court has historically recognized a major distinction between express advocacy of unlawful actions (unprotected speech) and advocacy of abstract doctrines or general discussions of policies and ideas (protected speech). The Government May Prohibit or Restrict The Following Forms of Speech : Expression that induces unlawful conduct. Expression that threatens harm to others. Expression that provokes a hostile audience. Expression that discloses confidential information. OUTDATED CLEAR AND PRESENT DANGER STANDARD : (no longer used) Dont look at the content of the speech, look at the context in which the speech was made. Schenck v. US (1919) (p. 1009) (no longer the law) Justice Holmes : Outspoken advocate and protector of free speech. However, many of his opinions uphold the convictions of people who spoke out against the war efforts. He thought free speech depended a lot on the circumstances and immediacy surrounding the speech. Facts : The 1917 Espionage Act made it a crime to willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the US. Schenck, a publisher, mailed circulars to draftees designed to cause insubordination and obstruct recruiting services. The circulars argued the Conscription Act was unconstitutional and urged people 1 to petition to have it peacefully repealed. The circulars did not explicitly advocate illegal resistance...
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