CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #38
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. 1258; Schenck, p. 1260; Abrams, p. 1261
- 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
1st Amend. law of subversive speech: BRANDENBURG p. 1284 (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?
- Who decides whether the justifying risk exists?