Chapter 13. GOVERNMENT CONTROL OF THE CONTENT OF EXPRESSION

1. Introduction

• Amendment I (1791): "Congress shall make no law...abridging the freedom of speech, or of the press; ...": issues of interpretation
• "Speech"
• words only, or communicative conduct generally?
• political speech only, or expression generally?
• self-expression only, or also "commercial speech"?
• "Abridging"
• "prior restraints"?
• after-the-fact sanctions?
• content-neutral as well as content-based restrictions?
• "the freedom": absolute or qualified?
• "Congress"
• Executive or judicial restrictions?
• state restrictions?
• private restrictions?
• Historical setting of the First Amendment
• English common law (Blackstone, and "licensing")
• no prior restraints ("licensing" disapproved)
• forms of libel which were punishable after the fact
• "seditious libel"
• other forms (obscenity, defamation, blasphemy)
• Colonial law: Zenger's Case and reforms
• truth as a defense
• jury decides all issues
• Did the Framers intend to abolish the crime of seditious libel, or only to incorporate Blackstone and Zenger reforms? cf.Sedition Act (1798)
• Masses, p. 1213; Schenck, p. 1215; Abrams, p. 1216
• do these cases represent different theories of protected speech?
• to what extent is purpose, as distinguished from likely effect, relevant?
• how does Holmes distinguish Schenck from Abrams?
• Current 1^st Amend. law of subversive speech: BRANDENBURG p. 1239 (1969)
• what law is being challenged?
• what standard of review does the Court apply?
• what must now be shown, in order to punish subversive speech?
• Is this a "clear and present danger" test, as Douglas suggests?
• What is the weakness of such a test, that there should be "no place" for it?