First Amendment Development

1
First Amendment Development

• Freedom of Press in England
• William Caxton first Printing Press 1476
• Had no restrictions
• 1476-1776 Seditious libel
• Licenses
• Publish Bonds (upfront)
• Freedom of Press in the Colonies
• Laws existed 30 years before the first paper was
  published
• Prior Restraint but a reluctance to convict
• Licensing was prohibited in England in 1695 but
  not until 1720 in the U.S.
• John Peter Zinger seditious libel
• Published the New York Weekly Journal Jailed in
  Nov. 1734.
• Acquitted, even though it was illegal
• Fair and True Criticism key
• Censorship of Unpopular Ideas

2
First Amendment

• 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 to peaceably assemble, and to petition the
  Government for a redress of grievances.

3
The First Amendment

• Freedom of expression in the 18th century
• Original intent they didnt leave much record
• No Prior Restraint
• No Seditious libel
• PERHAPS the original intent was to let anyone say
  anything, in order to protect the publics right
  to know
• Freedom of expression today
• 1st amendment is based on Supreme Court
  interpretations, not just founders

4
Five First Amendment Theories

• Absolutist theory
• no law
• Black and Douglas
• Ad hoc balancing theory
• Balance against social values
• Preferred Balancing
• Some rights of free expression are more valuable
  than others, free expression does not trump other
  rights, like fair trial, free speech is the
  preferred value though
• Meiklejohnian theory
• Free speech is a means to the end of self
  government public speech v. private speech -
  Brennan
• Access theory
• What good is free speech if you dont have access
  to the press?

5
Struggle for Freedom

• Alien and Sedition Acts
• of 1798 - Fear of French revolution spreading to
  America
• 2000 and 2 years in Jail
• Prohibited false, scandalous and malicious
  publication against the govt
• Used by Adams to try to squelch opposition voices
• Expired in 1801, another peacetime sedition law
  would not be passed until 1940
• Various laws also passed during the prohibition
  era

6
Sedition in WWI

• Very unpopular war not our struggle
• 1917 Espionage act, crime to willfully convey
  false information with the intent to cause
  insubordination, disloyalty, mutiny, or refusal
  of duty
• 1918 Sedition Act, amended Espionage act crime
  to obstruct draft recruitment
• 900 convictions 20 years, 10K
• Criminal syndicalism (passed by states) no
  opposing symbols, flags etc.

7
Smith Act

• 1940 Communism on the rise
• Crime to advocate the violent overthrow of the
  govt or be a member of a group that does so
• Overturned in 1957, saying in Yates that although
  it was advocated, abstract doctrine v. action