Con Law II - Larson - B

Con Law II - Larson - B - FIRST AMENDMENT "Congress...

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FIRST AMENDMENT " 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 ..." o 14 th Am makes 1 st Am applicable to states as well Doesn’t say “no law abridging speech” o Govt does limit spch; consqncs from legal syst for certain kinds of speech i.e. threaten to kill/harm someone, conspiracy, copyright violations, etc. Importance of FS: o Can criticize govt leads to change thru democratic process o Artistic expression of individual/autonomy o Marketplace of ideas hope truth will prevail/techno advances Two theories; o Instrumental: FS is important b/c it serves some other goal o Non-instrumental: FS is an end, good in/of itself; ultimately leads to truth History: o FS abridged in 3 ways in past: 1) Constructive treason: prosecution of ppl simply for saying supposedly disloyal things (rare) 2) Seditious libel: crime of speaking ill of govt; truth ≠ defense in Eng 3) Licensing and monopolies: need license from govt to run printing press, certain companies given monopolies over printing o 1689, Eng creates Bill of Rights FS not mentioned o 1735, NY printer published articles critical of NY govt; charged w/sedts libel Atty argues truth should be defense FS to oppose arbitrary pwr He wins, but takes long time b4 implemented o 1765: William Blackstone wrote commentaries on Eng law Liberty of press essential to free state Advocates freedom to print what u want w/o getting license, but if print something w/pernicious intent, may be liable under law o 1776: we overthrow King in colonies, only 2 colonies include FS in BR o 1787: Const doesn’t mention FS o FS came as part of BR little debate on it, so don’t really know purpose Structural arg fails: 1 st Am would’ve been 3 rd but 1 st two not ratified o 1798: one of most viciously partisan eras, the Prez passes Sedition Act Prohibits false, scandalous, malicious writing against US govt Supporters claim better than Eng law b/c 1) requires malicious intent [publish neg = won’t be punished] 2) truth is a defense 3) jury decides re: whether the speech is libelous Start prosecuting lots of ppl Jefferson, leader of Dem party, VP ≠ included in SA
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Claims SA violates 1 st Am o 1800: Jefferson elected prez o 1801: SA lapses by own terms, Jefferson pardons all ppl convicted under SA Thought it was federalism issue, this something states should deal with o 1868: 14 th Am makes 1 st applicable to states o 1907: SC decides Patterson st Am prohibits prior restraints, but if speech has bad tendency, can punish after the fact (like Blackstone) o WWI: more FS cases SC basically decides it doesn’t mean much o 1914: WWI starts o
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Con Law II - Larson - B - FIRST AMENDMENT "Congress...

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