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(1)

FREEDOM OF SPEECH

in the case-law

of the Supreme Court of the United States

(2)

The First Amendment

Part of the Bill of Rights, approved by congress in 1789, came into force after being ratified by required number of states in 1791.

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.

(3)

The First Amendment (FA) and the Article 10 of ECHR: a comparison

Congress shall make no law […] abridging the freedom of speech, or of the press…

Art. 10.1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

(4)

The First Amendment (FA) and the Article 10 of ECHR: a comparison

FA is much more concise.

A structure of the Art. 10 includes the principle and exceptions; nothing like this in the FA.

The Art. 10 contains the duties and responsibilities clause;

nothing like this in the FA

(5)

U.S. Supreme Court (S.C.) and the ECtHR:

a comparison

Formal position: S.C. - the court of constitutional law;

ECtHR - the court of international law

Legal status of rulings:

rulings of S.C. are binding precendents (de iure precendents);

jugments of ECtHR are not formally binding in abstracto and may be treated merely as persuasive (de facto) precedents.

Fundamental values: dignity (Europe) vs. freedom (USA)

Strategy of interpretation: balancing approach (ECtHR) vs. rule based approach (S.C.)

(6)

U.S. Supreme Court (S.C.) and the ECtHR:

a comparison

An approach to regulating social relations

USA: a wide range of personal freedom, yet law is strictly applied (e.g., Three strikes law)

Europe: personal freedom is more limited, yet the law’s execution less rigid and based on the principle of proportionality

The scope of protection of the Freedom ECtHR: vertical and horizontal relations

S.C.: solely vertical relations (the doctrine of state action)

Obligations of the state: ECtHR – negative and positive; S.C. – only negative

(7)

A very short history of the FA

Historically speaking, it was interpreted in a very narrow

way: only as a prohibition of a pre-publication censorship. A legal (including criminal) liability for one’s own expressions was genreally accepted.

Even within this limited scope, the freedom of speech was not fully respected.

1915: a preventive censorship of movies accepted by the S.C.

1918: Sedition Act

(8)

Sedition Act of 1918 (section 3)

Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, ...or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct ...the recruiting or enlistment service of the United States, or ...shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States ...or shall willfully display the flag of any foreign enemy, or shall willfully ...urge, incite, or advocate any curtailment of production ...or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both....

Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, ...or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct ...the recruiting or enlistment service of the United States, or ...shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States ...or shall willfully display the flag of any foreign enemy, or shall willfully ...urge, incite, or advocate any curtailment of production ...or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than

$10,000 or imprisonment for not more than 20 years, or both....

(9)

United States v. Motion Picture Film „The Spirit of 76”, 1917

Robert Goldstein, producer of the 1917 Revolutionary War epic The Spirit of ’76, was arrested under the Espionage Act, charged with making a motion picture that portrayed Britain, now America’s ally, in an unfavorable light. Among other unflattering depictions, the film showed Red Coats bayoneting babies, raping women, and massacring Patriot soldiers. 

In building its case against Goldstein—ironically named United States v. “The Spirit of '76”—

the government asserted that Goldstein had knowingly made a pro-German propaganda movie with the intent to impugn the nation’s allies, foment disloyalty, and impede the U.S.

military’s conscription efforts.  Goldstein countered, to no avail, that his main motivation in making the picture had been  financial—that he believed a movie dealing with America’s victory in the War of Independence would have broad box-office appeal, given the patriotic mood of the country.   The atrocities committed in the film by British soldiers were, he further contended, historically accurate and necessary to the plot.

In the end, a jury would have none of Goldstein’s arguments. On April 15, 1918, he was sentenced to 10 years in federal prison (later commuted to 3 years) and fined 5,000 dollars. 

Said sentencing judge Benjamin F. Bledsoe at the trial’s conclusion, “Count yourself lucky that you didn’t commit treason in a country lacking America’s right to a trial by jury.  You’d already be dead.”

https://www.nypl.org/blog/2014/07/30/us-v-spirit-76

(10)

New York Times Co. v. Sullivan (1964)

The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page advertisement taken out in the New York Times. The advertisement was entitled, “Heed Their Rising Voices”

and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South.

Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police.

The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false.

There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the advertisement libelous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed.

(11)

Basic points of the ruling of S.C.

Application by state courts of a rule of law to award a judgment in a civil action, is "state action".

FA takes a central position in relations between government and citizens; it should take a priority over other rights.

The doctrine of „breathing space”: even false statements deserve protection.

Factual error, content defamatory of official reputation, or

both, are insufficient to warrant an award of damages for false statements unless "actual malice" -- knowledge that

statements are false or in reckless disregard of the truth -- is alleged and proved.

The burden of proof is on a plaintiff who claims the presence

of actual malice.

(12)

FA and a doctrine of constitutional interpretation

Originalism: a doctrine of constitutional

interpretation, according to which the Constitution's meaning is stable from the time of enactment.

Living Constitution: the meaning of the Constitution is

dynamic and it can change in time. When interpeting

key constitutional terms, the contemporaneous social

cirumstances should be taken into account.

(13)

Basic principles of interpreting the FA:

The state action doctrine

„The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment.

Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.”

https://nahmodlaw.com/2015/02/19/know-your-constitution-8-what-is-state-action/

(14)

Clear and present danger doctrine

Originally intended as a ground for a charge in cases of sedition:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right”

Justice O. W. Holmes, Schenck v. United States, 1919 Nowadays it is used mainly in favour of defendants.

(15)

The scope of protection

Chaplinsky v. New Hampshire (1942)

Appellant, Walter Chaplinsky, a member of the sect known as Jehovah's Witnesses, was

convicted in the municipal court of Rochester, New Hampshire, for violation of Chapter 378,

§ 2, of the Public Laws of New Hampshire:

"No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation."

On 6 April 1940 Chaplinsky was using the public sidewalk as a pulpit in downtown Rochester, passing out pamphlets and calling all religion a "racket." After a large crowd had begun

causing a scene, a police officer removed Chaplinsky to take him to police headquarters.

Being on their way, they met the town marshal, who had returned to the scene after warning Chaplinsky earlier to keep it down and avoid causing a commotion. Chaplinsky attacked the marshal verbally. The complaint against Chaplinsky stated that he shouted: 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are

Fascists or agents of Fascists’. Chaplinsky admitted that he said the words charged in the complaint, with the exception of the name of the Deity.

(16)

Supreme Court: no violation of the FA.

„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 those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”.

Justice Frank Murphy

Two-tiered doctrine of the FA

(17)

The closed list of exceptions (low value speech)

We can distinguish two forms of speech: low value and high value speech A list of forms of low value speech, which are either unprotected or

experience a lower level of protection is closed and determined originally in the moment of enactment (1791).

Exemplary forms of speech which do not deserve protection:

-Obscene content (e.g., child pornography)

-Speech incitied by rasicm

-„Fighting words”

A discretion of a state legislature to determine legal sanctions.

(18)

Two-tiered doctrine: an evolution

„The "fighting words" analysis in Chaplinsky has been modified since the decision was handed down in 1942. Chaplinsky was the last case to uphold a conviction for the use of fighting words against a public official. Edwards v. South Carolina (1963) introduced the notion of a "heckler's veto," a doctrine which states that mere threats cannot trump free speech rights. In Cohen v. California (1971), the Court went further, stating that in order to override First Amendment protections, "fighting words" must provoke an immediate hostile reaction. What is more, the Cohen Court recognized that even threatening words have a communicative aspect that is worth protecting.

Cohen illustrates the erosion of Chaplinsky's double standard on free speech. In the later case, a young man was convicted of disturbing the peace for wearing a jacket bearing the legend "F*** the Draft" while standing in a courthouse. The Supreme Court overturned his conviction, finding that neither the "vulgar" language on his jacket nor its provocative message were outside the ambit of First Amendment protection.”

Read more: Chaplinsky v. New Hampshire - Court Develops Two-tiered Theory Of The First Amendment - Words, Speech, Fighting, and Free - JRank Articles http://law.jrank.org/pages/22994/Chaplinsky-v-New-Hampshire-Court- Develops-Two-Tiered-Theory-First-Amendment.html#ixzz4jEKQ4Q9W

(19)

Two-tiered doctrine: an evolution

In the case of high value speech, it is by principle unacceptable to limitate it. Any hypothetical interference with the freedom of such a speech due to its content (content-based restriction) must be proved to be justified against the so called strict scrutiny test. According to the test, the restriction must be:

-

necessary to serve a compelling state interest;

-

narrowly tailored to achieve that goal.

(20)

Content-neutral restrictions

Content-neutral (time, place, and manner) regulations:

the intermediate scrutiny test

-

The restriction is content-neutral;

-

It serves a substantial governmental interest;

-

It is narrowly tailored to achieve this goal;

-

It leaves open ample alternative channels of communication.

Ward v. Rock Against Racism (1989)

(21)

Content-based or content neutral?

City of Renton v. Playtime Theatres, Inc.

The Respondent purchased two theatres in Renton, Washington for the purpose of showing adult films. The Respondent filed suit in Federal District Court seeking an injunction and declaratory judgment claiming that the First and Fourteenth Amendments of the Constitution were violated by a city ordinance, which prohibited adult motion picture theatres from being located within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school. The District Court entered summary judgment in favor of the Petitioner, the City of Renton (Petitioner), holding that the ordinance did not violate the First Amendment of the Constitution. On reversal, the Court of Appeals held that the ordinance constituted a substantial restriction on First Amendment constitutional interests and remanded the case for reconsideration.

The Petitioner’s City Council was predominately concerned with the secondary effects of adult theaters and not with the content of the adult films themselves. The secondary effects were crime, the effects on the city’s retail trade, property values, and the effects on the general quality of urban life. The ordinance was not designed to suppress the expression of unpopular views. It was designed to serve the substantial government interests of crime prevention, protection of retail trade, maintenance of property values and the protection of the quality of life. Thus, it is a time, place, manner restriction.

(22)

Viewpoint discrimination

An Illinois statute generally prohibits picketing of residences or dwellings, but exempts from its prohibition peaceful picketing of a place of employment involved in a labor dispute. Appellees were convicted in state court of violating this statute when they picketed the Mayor of Chicago's home in protest against his alleged failure to support the busing of school-children to achieve racial integration. Thereafter, appellees brought suit in Federal District Court, seeking a declaratory judgment that the statute is unconstitutional on its face and as applied, and an injunction prohibiting appellant and other state and local officials from enforcing the statute. The District Court denied all relief, but the Court of Appeals reversed, holding that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment.

Judgment: The Illinois statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment since it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing.

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