Controls on the Press in Colonial America

licensingseditious libelbreach of privilege

(contempt of assembly)

royal governorscourtscolonial assemblies

Type of control Source of control

Licensing in the colonies

1st newspaper in the colonies, Publick Occurrences, Both Foreign and Domestick, 1690, Boston, shut down after one issue for publishing without a license.

2nd newspaper, also in Boston, 1704, licensed and subsidized by colonial authorities.

How and when ended?

In the mid-1720s, largely due to efforts of James Franklin, who refused to submit to licensing, jailed twice. Public opposition. Licensing just died out.

Seditious libel in the colonies

What was seditious libel? Any criticism of government. Anything causing public to

think ill of government. Truth is irrelevant. In fact, “the greater the truth, the greater the libel.”

How and when ended? 1735 seditious libel trial of John Peter Zenger effectively

ended prosecutions but did not change the law of seditious libel. Change in the law didn’t come until the end of the 18th century.

Breach of privilege (or contempt of the assembly) in the colonies

What was breach of privilege? Criticism of the colonial assemblies or their members.

How punished? Summarily by the assemblies. None of the rights

available to the accused that he would have had in a regular court of law.

How and when ended? Enforced until the Revolution.

Blackstone’s definition of freedom of the press, 18th century

No prior restraints on publication but not freedom from post-publication punishments for “criminal” publications.

Was this what the framers of the First Amendment meant when they protected freedom of the press in the First Amendment?

First Amendment to the U.S. Constitution

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.

Added to the Constitution Dec. 15, 1791.

The Sedition Act of 1798

A crime to speak, write or publish any false, scandalous and malicious statements about Congress or the president.

Law incorporated the two protections Hamilton had argued for in the Zenger trial:

1. Truth was a defense.

2. The jury was responsible for determining whether the words were criminal.

The Sedition Act of 1798

Led to the development of a new definition of freedom of the press:

Freedom of the press consists of no prior restraints and the freedom to criticize government.

Law expired in 1801. President Jefferson repaid fines

and pardoned those who had been convicted.

20th Century Sedition Cases

Schenck v. United States, 1919: The clear and present danger test is enunciated by Justice Holmes.

Abrams v. United States, 1919: Holmes dissents, saying the majority is misconstruing the clear and present danger test.

Gitlow v. New York, 1925: For the first time the U.S. Supreme Court applies the First Amendment to the states via the Fourteenth Amendment; the Court incorporates the First Amendment’s free speech provision into the Fourteenth Amendment by declaring the word “liberty” included the liberty of speech.

Incorporation

Until 1925, the Bills of Rights, including the First Amendment, applied only to actions of the federal government

Gitlow v. New York, 1925, U.S. Supreme Court applied the First Amendment to the states via the Due Process Clause of the 14th Amendment.

Incorporation

The process by which the U.S. Supreme Court has applied portions of the Bill of Rights to the state via the 14th Amendment’s due process clause.

More sedition cases

Dennis v. United States, 1951: It becomes obvious that the justices do not agree on the meaning of the clear and present danger test.

Yates v. United States, 1957: The Court begins developing a new test, drawing a distinction between advocacy of abstract doctrine and incitement to imminent illegal action.

Brandenburg v. Ohio, 1969: The Court announces the new test -- Advocacy of abstract doctrine is protected by the First Amendment; incitement to imminent lawless action is not.

Functions of freedom of expression in a democratic society

for individual self-fulfillmentfor the advancement of knowledge and discovery of

truth (marketplace of ideas theory)to enable citizens to participate in social, including

political, decision-making (self-government rationale)

to maintain a balance between stability and change in society (safety valve function)

to serve as a check on government (watchdog function)

First Amendment tests

Bad tendency test

If expression had a tendency to cause harm, it could be prevented and/or punished.

First Amendment tests

Clear and present danger test The First Amendment does not protect speech

that creates “a clear and present danger of bringing about substantive evils that Congress has the power to prevent.” First articulated in Schenck v. U.S., 1919.

When can “dangerous” speech be prohibited?

The “clear and present danger” test has been modified (some say replaced). The current test for determining when speech is so dangerous it is unprotected by the First Amendment distinguishes between incitement and advocacy.

Advocacy of abstract doctrine is protected by the First Amendment.

Incitement to imminent lawless action is not protected.

Based on Yates v. U.S., 1957, & Brandenburg v. Ohio, 1969

First Amendment tests

Balancing test The right to freedom of expression is balanced

or weighed against competing rights and interests, for example, the right to reputation or to a fair trial by an impartial jury.

Ad hoc — Each case handled separately, no standards or definitions.

Definitional — Specific, defined standards applied. Preferred approach for consistency and predictability.

Levels of scrutiny

Courts apply different level of scrutiny (review) to regulations on expression depending on a number of factors, e.g., whether the regulation is content-based or content-neutral, what type of expression is at issue, the goal of the regulation.

Strict scrutiny

If a regulation is aimed at restricting expression or is a content-based restriction affecting fully protected expression (such as political speech), courts apply strict scrutiny.

The regulation will be held constitutional only if 1. There is a compelling governmental interest to

justify the regulation2. The regulations is narrowly tailored, the least

restrictive means available to achieve the goal.

Intermediate scrutiny

If the regulation is not aimed at expression, is content-neutral or affects less protected speech (such as commercial speech, courts apply intermediate scrutiny.

The O’Brien(or intermediate scrutiny) test

Is the regulation within the power of government?

Does the regulation further a substantial government interest?

Is the interest unrelated to the suppression of expression?

Is the restriction on free speech no greater than necessary to achieve the government interest?

(We’ll cover other types of intermediate scrutiny later in the semester as well.)

Fighting Words

Chaplinsky v. New Hampshire, 1945: Words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Must be aimed directly at an individual.

R.A.V. v. St. Paul, 1993: Local ordinance prohibited conduct for the purpose of arousing anger, alarm or resentment “on the basis of color, creed, religion, or gender.” U.S. Supreme Court struck the law down as unconstitutional since it amounted to viewpoint discrimination.