Chapter 2: The First Amendment

Question 1

Recite the First Amendment.

Answer 1

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.

Question 2

What is seditious libel?

Answer 2

• A criminal offense against the state.

- Laws used to punish individuals for criticizing the government. (The Alien and Sedition Act of 1790 for example.)

Question 3

What is a prior restraint law?

Answer 3

• Government driven licensing of the press that stops material before its printed.
• Requires the Government or an affiliated group to review all material before publication.

Question 4

What is jury nullification?

Answer 4

The power of a jury in a criminal case to ignore that law and return a verdict according to its own conscience.

Question 5

Describe the key parts of the John Peter Zenger trial.

Answer 5

• Zenger published a newspaper that was sponsored by the political opponents of the colonial governor for seditious libel against Cosby, the colonial governor.
• After Andrew Hamilton represented Zenger and first advanced the truth defense, the jury acquitted Zenger, clearly nullifying the seditious libel laws of the Crown.

Question 6

What is community censorship?

Answer 6

• The silencing of speech by private people or businesses as a result of pressure exerted by private stakeholders, public interest groups, and political activist.
• The First Amendment does not protect against community censorship. It only protects against government censorship.

Question 7

What is the Symbolic Speech Doctrine?

Answer 7

1) The person engaging in the conduct must intend to convey a particular or specific message with their conduct.
2) There must be a great likelihood, under the surrounding circumstances in which the conduct takes place, that some people who witness it will reasonably understand the particular message that was intended by the actor.

Question 8

List and define the seven First Amendment Theories.

Answer 8

1) Absolutist Theory - The government cannot censor the press for any reason without exception or qualification.
2) Ad Hoc Balancing Theory - The Court should balance the freedom of expression with other values when a conflict between rights occurs in every case. (In other words, there’s a new scale each case.)
3) Preferred Position Balancing Theory - Similar to the balancing theory above, but the preferred position theory presumes that government action that restricts speech is unconstitutional. The burden of proof rests with the state to show the constitutionality of the statute in question.
4) Meiklejohnian Theory - Speech that relates to the self-governing process must be absolutely protected by the First Amendment. All other speech can be subject to regulation but the self-governing process has a broad reach in this theory.
5) The Marketplace of Ideas Theory - Speech should be relatively unregulated. No type of speech should have a government mandated preferred position, but instead have truth worked out in the marketplace of ideas. This requires a relatively strong protection of all speech that seeks truth.
6) Access Theory - The First Amendment protects both the ability to speak and the access to speak. In other words, economic equality is required for the protection of the First Amendment. Newspapers would have to publish the views of specific citizens.
7) Self-Realization/Self-Fulfillment Theory - The Theory that all speech that impacts an individual’s self-realization has to be protected, regardless of the speech’s impact on the rest of society at large.

Question 9

What are the major Seditious Libel acts in the United States?

Answer 9

1) The Alien and Sedition Acts of 1798
2) The Espionage Act of 1917
3) The Sedition Act of 1918
4) The Smith Act of 1940.

Question 10

What did the Alien and Sedition Acts of 1798 do?

Answer 10

• Criticism of the Federal Government (Adams’ Administration) was forbidden.
• People who criticized federal laws or stirred up sedition could be punished by a fine and jail time.
• The enforcement was aimed at publications who supported Jefferson.

Question 11

What did the Espionage Act of 1917 do?

Answer 11

• Make it a crime to interfere with the war effort in any way.
• Publications could be convicted for willfully obstructing the recruitment of soldiers through their reporting.
• Also the law prohibited the mailing of material that violated the law.

Question 12

What did the Sedition Act of 1918 do?

Answer 12

• Made it a crime to utter or print language that was intended to cause contempt for the federal government, constitution, flag, or uniform of soldiers.
• This also was enforced through the censorship of newspapers, books, and pamphlets.

Question 13

What did the Smith Act of 1940 do?

Answer 13

• Aimed at the communists in the United States.

- Made criminal speech that advocated for a violent overthrow of the government.

Question 14

What happened in Brandenburg v. Ohio (1969)?

Answer 14

• The court updated the clear and present danger test first set in 1919.
• Speech must be directed to inciting/producing immanent lawless actions and be likely to produce such action in order to be regulated constitutionally under the First Amendment.
• Involved a leader of the KKK issuing vague threats against the US government if white supremacy wasn’t restored.

Question 15

What happened in Gitlow v. New York (1925)?

Answer 15

• The Court applied the Incorporation Doctrine and federalized First Amendment Law through the 14th Amendment.
• The First Amendment and federal law supersede state law and bound it. First Amendment law is now a constitutional issue.

Question 16

What are the Four Rules regarding prior restraint?

Answer 16

1) Prior Restraint by the government is presumptively unconstitutional. The burden rests on the government to prove in a court that the prior restraint is justified.
2) The government must prove there is a compelling interest or an interest of the highest order to justify the restraint.
3) The scope of any prior restraint must be narrowly tailored to the right actors and in the least invasive manner possible.
4) Speech that falls outside the First Amendment can be restricted by the government only after a judicial proceeding in which the court has determined that the speech is not protected.

Question 17

What happened in Near v. Minnesota (1931)?

Answer 17

• Minnesota allowed for the courts to rule speech from publications that were defamatory or scandalous a public nuisance.
• Lays out the four rules regarding prior restraint as detailed above.

Question 18

What happened in the Pentagon Papers case (1971)?

Answer 18

• The New York Times and Washington Post published a series of articles based on top secret info stolen from the government. The Attorney General tried to exercise prior restraint on the publications.
• The Court ruled against the attempted prior restraint of the Attorney General.

Question 19

What happened in the Progressive Magazine Case (1979)?

Answer 19

• The Court issued an injection against a magazine article that specified the three concepts necessary to construct a hydrogen weapon under the prior restraint test in Near v. Minnesota.