Freedom of Speech

and

Freedom of the Press:

History and Philosophy

The paradox of The paradox of FreedomFreedom

Public Safety

v.

Individual Rights

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty or safety.”

Benjamin Franklin, Historical Review of Pennsylvania (1759)

John MiltonAreopagitica

1664

1608-1674

“…who ever knew Truth put to the wors, in a free and open combat”

Two Treatises on Government

1690

1. Written constitution to define limits of government by those creating the new government

2. “Natural rights” are not all surrendered to the government 1632-1704

John Locke

The trial of John Peter Zenger (1734)

1. Jury decides the case (nullification)

2. Truth is a defense in a libel case

The Constitution of the United States (1789)

Article I, Section 8

“To establish Post Offices and Post roads.”

“To promote the Progress of Science and the useful Arts, by securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Bill of Rights (ratified 1792)

Amendment 1

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridgingthe freedom of speech, of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Bill of Rights (ratified 1792)

Amendment 6

“In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed...”

Philosophies of Free Speech and Press

I. Individual Fulfillment (Thomas Emerson)

II. The attainment of truth: the marketplace of ideas (Oliver Wendell Holmes)

III. Governance (Alexander Meiklejohn)

IV. Watchdog (Vincent Blasi)

V. Agent of Peaceful Change

VI. Access (Jerome Barron)

Hierarchy of Protected Expression

Political Speech (Meiklejohn)

Advertising (since 1976)

Indecent Speech (Seven Dirty Words)

Obscenity,False Advertising, Fighting Words

Protected

No protection

QUESTION: HOW DOES ONE KNOW THE INTENT OF THE “FRAMERS?”

The nature of the guarantee

Liberty v. Government power: Check on state actions under the 14th

Amendment

Expression v. ConductIs entertainment afforded 1st Amendment protections?

Symbolic Speech (expressive conduct)Texas v. Johnson (1989)R.A.V. v. City of St. Paul (1992)

Suspect Restrictions

Prior RestraintNear v. Minnesota (1931)New York Times Co. v. U.S. (1971)

Hazelwood School District v. Kuhlmeier (1988)

Contract and Administrative Law (Marchetti and Snepp)

LicensingWatchtower Bible and Tract Society of New York v. Village of Stratton (2002)

Time, Place, and Manner RestrictionsContent Neutral?

Compelled SpeechMedia Access Laws: Tornillo v. Miami Herald Pub. Co. (1973)

Punishment After The FactSpeech CodesHate Speech: R.A.V. v. St. Paul (1992)

Financial BurdensTaxes: Grosjean v. American Press Co. (1936)