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First Amendment: Freedom of Expression (Spring 2019 edition) Professor William M. Carter Jr. My sincere thanks to the University of Pittsburgh Provost’s Office’s Open Educational Resources Initiative and the Law School’s Document Technology Center for their support in the creation and preparation of this electronic casebook. This electronic casebook is licensed under CC BY-NC 4.0. About this casebook’s approach: Students and other readers should be aware that this casebook is comprised almost entirely of court cases. Unlike many law school casebooks, this casebook contains relatively few interstitial summaries, notational materials, or secondary sources. That is by design. Inasmuch as this casebook was designed for teaching an upper-level law school survey course, I believed it to be important that the course materials reflect the fact that close reading and analysis of the actual case law and the ability to synthesize rules and doctrine from a line of cases are fundamental lawyering skills. These skills, in my opinion, can only be fully developed by doing it oneself rather than relying upon others’ summaries and analyses. This is not at all to suggest that summaries, critiques, and analyses of the law in the form of law review articles, treatises, scholarly books, practice guides, etc., are unimportant or unenlightening (I’ve written plenty of them myself, so I certainly hope they add value). Nor do I suggest that practicing lawyers do not or should not turn to secondary sources as may be appropriate in order to supplement their understanding of the case law (I certainly did in practice). Rather, the fact that this casebook consists almost exclusively of cases reflects a deliberate pedagogical choice: that upper-level law students have sufficient foundation in legal reasoning and common-law methods to be expected to engage extensively and intensively with primary source material (i.e., cases), while still benefitting from further skill building in the close reading of the facts and the law, case analysis, case synthesis, and the analogizing or distinguishing of precedent. I have taken a fairly light hand in editing the cases. I have tried to remove clearly extraneous information (such as parallel and pinpoint citations) and have sometimes chosen not to include all dissents and concurrences in the cases. Beyond that, I have refrained from editing the cases stylistically except where absolutely necessary for the sake of clarity. Students and other readers may therefore find that the cases seem lengthier (or are lengthier) than is typical in casebooks. My reason for this approach was to preserve the cases as near as reasonably possible to the form in which students would encounter them in practice. Last: this first edition consists primarily of Supreme Court cases, which I thought best for an introductory First Amendment course. I may reexamine this approach in future. 1 I. Introduction: History of the First Amendment and Rationales for Protecting Freedom of Expression This course focuses on the First Amendment’s Speech Clause, which states in relevant part that “Congress shall make no law . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.” The historical evidence indicates that the First Amendment’s Framers primarily intended it as a bulwark against the new American federal government adopting the kinds of laws suppressing speech that existed in England at the time. To provide two examples: until 1694, English law established a detailed system of licensing requiring that any publication must undergo government review and approval and have a government license issued prior to being published. Similarly, the English law of “seditious libel” made it a crime for anyone to criticize the government. Beyond these two clear goals—prohibiting Congress from enacting prior restraints on publications and from punishing seditious libel—the historical record is hardly conclusive regarding what else the Framers thought the First Amendment’s Speech Clause would protect. Granted, there is additional evidence from the period of the “Second Framing”—i.e., the Congressional debates regarding the post-Civil War Amendments adopted during the Reconstruction Era—regarding what the Reconstruction Framers thought about freedom of speech under the Thirteenth and Fourteenth Amendments. But even that additional evidence is mixed. Hence, because courts unavoidably must decide whether a given type or form of speech is protected by the First Amendment, they have largely depended upon common-law doctrinal evolution rather than conclusive historical guidance. Although an absolutist interpretation of the First Amendment is certainly possible—i.e., “‘no law’ means ‘no law’; therefore, any law abridging ‘speech’ to any degree is unconstitutional” —the Supreme Court has never accepted the premise that the First Amendment forbids any and all government regulation of speech whatsoever. (Justice Black and, on occasion, Justice Douglas, took a nominally absolutist position regarding the First Amendment, but their views never commanded a majority of the Court and were riddled with exceptions in any event). Hence, in interpreting the First Amendment, the courts have largely been guided by precedent; and when no precedent is on point, by resort to first principles. Hence, perhaps the first “first principle” to consider is this: What constitutional values does the protection of freedom of speech promote? What constitutional values should it promote? Knowing how courts understand and are guided by these constitutional values is important, both because it will help you understand the courts’ reasoning in the cases presented but also because it can help you shape First Amendment arguments in practice. 2 Traditional Rationales for Protecting Freedom of Speech Justice Brandeis’s concurring opinion in Whitney v. California encapsulates the four traditional rationales for protecting freedom of speech: “Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Whitney, 274 U.S. 357, 375 (1927). Justice Brandeis’s quote above captures what have been thought to be the four primary constitutional values that are advanced by protecting freedom of speech: promoting democratic self-governance by ensuring the greatest amount of information and the broadest range of views are permitted in the public domain; promoting the search for truth through the operation of the “marketplace of ideas” rather than government regulation; advancing individual autonomy by protecting our ability to express ideas—whether political, artistic, ideological, etc.—without fear of punishment; providing a “safety valve” for individuals to express their dissatisfaction or anger by speech rather than turning to other means because their speech is suppressed. A fifth rationale that has been offered is promoting societal tolerance—i.e., freedom of speech requires people to learn to tolerate ideas that they may not like, which builds habits of mind that in turn lead to greater tolerance of people whom they may not like. All of these rationales are subject to elaboration, examination, and criticism, and we will discuss them throughout the course. 3 II. The Early “Subversive Advocacy” Cases and the Evolution of the Brandenburg Test for Incitement The following pamphlet was at issue in Schenck v. United States, which is presented below. 4 5 39 S. Ct. 247. Supreme Court of the United States. SCHENCK v. UNITED STATES. Decided March 3, 1919. Justice HOLMES delivered the opinion of the Court. This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, causing and attempting to cause insubordination in the military and naval forces of the United States and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire: to wit, that the defendant willfully conspired to have printed and circulated to men who had been called and accepted for military service under [the Draft Act] a document alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, to wit, the above mentioned document. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts.

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