FREEDOM OF SPEECH

SCHENCK v. US (1919)[ Freedom of speech may be constitutionally

prohibited when the expression poses a Clear and Present Danger to the
values within Congresss power to protect. ]
FACTS: During WWI, Schenck, an officer in the Socialist Party, prepared a leaflet
distributed to men conscripted in the draft. The leaflet encouraged the men to sign
a petition to repeal the draft, but never expressly told the men to resist the draft.
Schenck was tried and convicted under the Espionage Act of 1917a FEDERAL
LAW, which banned acts of insubordination and interfered with military
recruitment. Schenck challenged the constitutionality of the act.
HOLDING (Holmes): 9-0. Espionage is upheld as constitutional. The First
Amendment is not absolute. Freedom of speech may be restricted when the
expression poses a clear and present danger to values within Congresss power
to protect.
Holmes Opinion: Holmes claimed that the leaflet was clearly aimed to discourage
conscription. He said it was not necessary to show whether the leaflet actually
succeeded in causing people to defy the draft. Holmes also claimed that in times
of war, restrictions that would otherwise not be imposed may be necessary
(Schenk). Acts should be considered in light of the circumstances in which they
are done. Free speech doesnt permit someone to shout, fire! in a theater and
cause a panic. The question we must answer is whether speech expressed in the
particular circumstance are of the nature to create a clear and present danger
that will cause others to take actions that Congress has an interest in and power to
prevent.
IMPACT/TAKEAWAYS: Speech may be prohibited if it has the tendency to cause
unlawful activities to occur. (Schenck; Debs). However, when expression of speech
does not pose an imminent threat of danger, it must be protected or else we
will impede upon the market place of ideas.

CHAPLINSKY v. NEW HAMPSHIRE

(1942) p. 1091Fighting

Words

[ State laws that prohibit expressions of speech likely to provoke the average
person to retaliation, and thereby cause a breach of the peace are
constitutional under the 1st and 14th Amendments (Chaplinsky, 1092). ]
FACTS: Chaplinsky, a Jehovas witness, stood on a street in NH, proclaiming that
organized religions were rackets and issued other insulting remarks aimed at
certain religious groups. After being warned by police that people were getting
restless about his remarks and still refusing to stop, he called the marshal a
fascist and a disturbance broke out and he was arrested under a NH law that
prevented utterance of offensive, derisive or annoying word (see 1091 yellow
HL). Convicted in NH, he appealed, alleging that the law violated the First
Amendment.
Chaplinskys Argument: Chaplinsky argued that the law was unconstitutionally
vague and thus people couldnt know when they were in violation of it. BUT
SCOTUS rejected this argument, noting, the English language has a number of
words and expressions which by general consent are fighting words and

phrases like damned racketeer and damned facist... are likely to provoke the
average person to retaliation and thereby cause a breach of the peace
HOLDING: 9-0. Law is upheld as constitutional under the 1st Amendment.
IMPACT: Chaplinsky was the last case in which SCOTUS upheld someones
conviction for using fighting words against a public official. Today, almost
certainly insulting a policeman would not constitute fighting words. Subsequent
decisions have narrowed the law so that only in-your-face utterances causing
imminent lawlessness are prohibited. For example, in Cohen v. California (1971),
SCOTUS held that wearing a jacket adorning a Fuck the Draft slogan was not
prohibited. An immense departure from the Chaplinskys standard of not
protecting fighting words occurred in R.A.V. v. City of St. Paul (1992, p. 1243), in
which a city ordinance making it illegal to burn crosses, wear swastikas, or
display any symbol that one reasonably knows arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion or gender (1243) is
declared unconstitutional. This is based on the fact that trying to start trouble is
not protected (so trying to start trouble by burning a cross isnt protected). Even
within cateogries of speech with low or no protection, there cant be discrimination
of certain kinds of speech (certain kinds of cross-burning) within the category. [ 1:
22 ]
QUOTES:
- FIGHTING WORDS (def.): Words which by their very utterance inflict
injury or tend to incite an immediate breach of the peace (Chaplinsky).
o R.A.V. v. CITY OF ST. PAUL (1992)Scaliaallows cross-burning
FACTS: Minors (one called R.A.V) burned a cross in the backyard of a
black family were charged with violating the ordinance above. HOLDING:
SCOTUS unanimously declared the ordinance unconstitutional because it
signaled out punishment for certain content-based expressions, but not
all fighting words.
QUOTES:
o The danger of censorship presented by a facially content-based
statue requires that that weapon be employed only where it is
necessary to serve the asserted compelling interest (R.A.V, 1246).
o The existence of adequate content-neutral alternatives
undercuts significantly any defense of such a statue (R.A.V, 1245)
o The point of the First Amendment is that majority preferences must be
expressed in some fashion other than silencing speech on the basis of its
content (R.A.V, 1245)
o The reason why fighting words are categorically excluded from the
protection of the First Amendment is not that their content
communicates any particular idea, but that their content embodies a
particularly intolerable (and socially unnecessary) mode of
expressing whatever idea the speaker wishes to convey (R.A.V,
1245)
EXAMPLES:

State prohibiting only those obscenity

- State may NOT prohibit ONLY
which is the most patently offensive in
obscenity which includes offensive
its prurience
political messages
- Ex) State can prohibit the most
- Federal government cannot criminalize
lascivious displays of sexual activity)
only threats against the President
- Federal Govt can criminalize only
ONLY those threats against the
President that mention his policy on
threats of violence directed toward the
aid to inner cities
president (falls within 1st A.)
- State may NOT prohibit only that
- State may choose to regulate price
commercial advertising that depicts
advertising in one industry but not in
men in a demeaning fashion (p. 1244)
others because the risk of fraud is
greater in that industry
- City Ordinances can choose to prohibit
only those fighting words that
communicate idea in a threatening (as
opposed to a merely obnoxious)
manner
DIRECT QUOTES:
- There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or fighting words. (Chaplinsky, 1092).
- Fighting words are words that by their very utterance inflict injury or tend
to incite and immediate breach of the peace (Chaplinsky, 1092).
- The state statues purpose was said to be preserv[ing] the public peace
- THIS WOULD BE A CONSTITUTIONAL STATE STATUE:
No words being forbidden except such as have a direct tendency to cause
acts of violence by the persons to whom, individually, the remark is
addressed.
-

DENNIS v. UNITED STATES (1951)[ UPHOLDS law that criminalized

teaching, advocating, or conspiring to advocate the overthrow of the govt as
CONSTITUTIONAL under the 1st A. ]

HOLDING: 6-2. Upheld the 11 communists conviction. If what the Ds are

advocating for is proved to be serious and dangerous enough to warrant
restriction, it can be prohibited. The fact that the threat to overthrow the
government is not imminent does not make it unable to be punished.
IMPACT/KEY TAKE-A-WAYS: Instead of applying the clear and present danger
test from Schenck, Learned Hand developed a new formula to determine whether
speech was punishable in Dennis: In each case we must ask whether the gravity
of the evil discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid danger (Dennis, 1064). Employing this
standard made it easier to charge communists even if they presented not imminent
threat. The Dennis case was reflective of the anticommunist wave throughout the
nation.
- Dennis balancing test (if the harm is great enough, even if such harm is not
likely to occur in the imminent future, the speech will still be unprotected

NOTE: balancing test in Dennis was only adopted by a plurality and is NOT
binding precedent

BRANDENBURG v. OHIO[ UPHOLDS law that criminalized teaching,

advocating, or conspiring to advocate the overthrow of the govt as
CONSTITUTIONAL under the 1st A. ]

HOLDING: State laws that criminalize speech intended to advocate the use of
violence are in violation of the 1st Amendment. Such laws are only constitutional
if specifically prohibit speech intending to incite imminent unlawful actions AND
are likely to succeed in doing so.
- Brandenburgs 3 part test:
1. Intent to incite
2. Imminence
3. Likelihood
- Under Brandenburg, even speech that advocates unlawful actions (low-value
speech) is protected unless it is likely that, given the context, such speech
will cause such actions to imminently occur

A line of cases, starting with Schenck and Abrams in 1919 held that First
Amendment freedoms of speech were not absolute. Schenck developed and
applied the clear and present danger test, also applied by the Debs court,
which prohibited speech that posed a clear and present danger to the values
within Congresss power to protect. In Holmes Abrams dissent, however, he
claimed that the leaflets criticizing US involvement in WWI were by no means
enough to show an attempt to produce that effect of clear and present danger. In
1925, Gitlow upheld the conviction of a man charged with violating a state statue
against criminal anarchy because he had advocated, advised and taught the duty,
necessity, and propriety of overthrowing and overturning organized government by
force, violence and unlawful means (Gitlow, 1054). Again, Holmes dissented in
Gitlow claiming that the clear and present danger that the state has a right to
prevent was not present through the distribution of such pamphlets (1055).
Whitney v. California (1927) then unanimously upheld a conviction of a member
of the Communist Party for her membership in an organization that advocates the
commission of crime, sabotage, or unlawful acts of force and violence or unlawful
methods of terrorism (Whitney, 1057).
Gitlow v. New York
- Freedom of speech and of the presswhich are protected by the 1st
Amendment from abridgment by Congressare among the fundamental
personal rights and liberties protected by the due process clause of the
14th Amendment from impairment by the states (Gitlow, 1054)
DARBY

Darby loosened regulations on what Congress could do via the Commerce

Clause. It weakened the concept of federalism as a check on the exercise of
national power.
NY v. US (1992) (E&E sup. p. 282-5)Low-Level Radioactive Waste Policy A. Act
In NY v. US, the take-title provision of the Low-Level Radioactive Waste Policy
Amendments Act of 1985 was declared unconstitutional as it served to force a
state to administer a federal regulation. States were not presented with two
legitimate choices, as their only options were to either take title to the waste
product and risk attendant liability or regulate according to the congressional
scheme. So, although enticing the states to adopt the scheme is constitutionally
permissible, the act was unconstitutional in that Congress cannot force a state
to adopt the federal regulatory scheme. Commandeering invasion of state
sovereignty violates the 10th Amendment and principles of federalism. The
crucial distinction that NY v. US draws is between enticement and direct
coercion.
- As long as the federal government does not coerce a state into adopting a
federal regulatory scheme, it may use federal money to entice the state into
complying with the regulation
Printz v. US
p. 285 E&E Supp.
HOLDING: The Brady Act is unconstitutional since it violates federalism and
forces the states to administer a federal regulatory scheme.
RULE: A federal law whose intention and effect is to force states to
participate in a federal regulatory scheme is unconstitutional. (Printz;
Sebelius). (see Sebelius, invalidating federal Affordable Care Act insofar as its
funding withdrawal provision coerced states into implement a federal healthcare
program)
MASSES PUBLISHING CO. v. PATTERN [OVERTURNED!] (1917)supp. Briefs p. 122
- Masses applied a test that weighs the value of content of freely spoken
opinions against its impact on the orderly conduct of governmental policy
o Hand: distinguishes btwn incitement (triggers; do X) vs. persuasion (i.e.
the war is bad which could lead to a decrease in ppl joining the draft)
- Masses was overturned by the COA on the ground that people will be held
accountable for the natural consequences of his words