Here we are viewed here we are. The first class went pretty well. We are being recorded for cspan. For the folks at cspan, i am university of Tennessee College of law professor glenn harlan reynolds. This is our standard law class for 2020 and we are talking about free speech, incitement, true threats and will get started on obscenity. We will be less socratic than usual because the cspan people asked me to be. Here is the textbook we are using, constitutional law, a good casebook. The first time i have used it so we are learning our way. It is going just fine. We have been talking about free speech, equal protection, race discrimination, gender and things like that. Now we are pivoting to a core part of the bill of rights, a different section about free speech. The framers valued free speech very highly. To the extent they talked about it, they saw it as mostly political, more than artistic or expressive. The interesting thing about the First Amendment is the courts did little with it for the first centuryplus of its existence. Almost all case law comes from the 20th century or the 21st. There are a couple of reasons for that. Many matters were not federal issues for the most part. For example, incitement was considered a local criminal matter, dealt with by state courts. If there were constitutional restraints on it in the days before the First Amendment was incorporated against the state through the 14th amendment the only limits on what estate could do towhat the state could regulate incitement came from state constitutions. To obscenity, the technology was not there. There were books regarded as obscene for a long time. The ability to mass produce sexual images, which seems to set people off, did not appear until the middle of the 19th century and did not take off the big way until the 20th century. You could not have obscene movies until movies were invented so that had a lot to do with it. One of the interesting things about this is, much of the law about the First Amendment is younger than me. It is from the second half and far into the second half of the 20th century. As a result, we feel it is old settled law but it is, by the standards of constitutional law, relatively new. Your text talks about the Free Expression of ideas. That is not a phrase found in the constitution. We derive it from the things the constitution does protect. The First Amendment says Congress Make no law abridging the freedom of speech or of the press, or the right of the piece peaceably the right of the people peaceably to assemble and to petition the government for a redress of grievances. It is worth noting these are separate free speech rights. Each has its own clause. We have freedom of speech. Freedom of the press. Right of assembly. And right of petition. They are all, to some degree, analytically distinct. Enough so that when youre writing a brief or other document to a court, you want to keep that in mind. As a practical matter, we tend to lump them together as free speech or free press. But we also derive a right of association from assembly and petition and speech, that is not contained in the text at all. One other side note, freedom of the press, i should mention, madison originally called it freedom of the use of the press. It is freedom to print things and publish things. It is not a freedom for what we now refer to institutionally as the press, the media. It is the same for everybody, media or not. In Free Expression, theres a big category that is probably the single most important distinction we are going to deal with. That is between content mutual regulations of speech and contentbased regulations of speech. Contentbased regulations of speech are bad. They are presumed invalid and subjected to strict scrutiny. They are uphold upheld only in the strictest of circumstances. An example might be no discussion of the bachelor. I could go for that. Picking a topic and placing it offlimits. A subset of contentbased speech is viewpoint discrimination or viewpointbased regulation, in which you are allowed to talk about something but not from particular viewpoints. So you can talk about politics communistom a viewpoint would be a case of viewpoint discrimination, a subset of content discrimination. Content neutral regulation are not addressed to what the speech is about. Content neutral might set you cannot operate trucks between 8 00 p. M. And 8 00 a. M. It is content neutral because they do not care what youre saying but they do not want you keeping people awake with a people awake. The framers did not talk about why we have free speech, but the courts do. The courts have a number of ideas which come to the front in different ways, in Different Cases, and sometimes they are contradictory when they are thinking about what the First Amendment and free speech protects. The courts have several different lines of attack. One is selfgovernance. The notion that we need to the able to talk about issues in order to operate as a democratic society. Remember, in the american system, the voters are sovereign and the people are sovereign. If they cannot talk about issues that confront the government and society, then they cannot run the society as the people who are sovereign are intended to do. And also has the beneficial effect that people are more likely to put up with losing and politics if they feel they have had their say and can grumble about it as people do today. Theres also the notion of the search for truth, the marketplace of ideas, that by discussing things we see different angles on them, and we understand them more fully and more differently than we would if we did not have free and open discussion. Theres also the notion free speech is necessary to develop moral virtue, that if you unquestioningly accept ideas and do not reason your way to them, you do not deserve credit even when you are right. Theres also the notion that we boost tolerance in society by having open discussion of ideas. If people are forced to confront, to hear and be aware of people who have very different ideas and approaches to life than they do, they will develop tolerance. The president of columbia who used to be a law professor, has a good book on this from many years ago that makes that point well. And autonomy, expression. People want to express themselves. They want to let other people know what they think and feel. Free speech allows them to do that. All of these come into play in different degrees in Different Cases and at a different settings. You should, as you read a case, and read what the court does with it, think about what vision of free speech is the court applying here . And why is it applying that one and not one of the others . It is worth looking at. Lets go back to content neutral and contentbased as your text book does. Contentbased regulation is very disfavored. Playboy case is a good example of this. In the old days before cable went digital, they would scramble stuff. I remember when i was in law school we went to rudys bar and they had a tv with cable and people would turn into the playboy channel. Sometimes you could kind of fiddle with it and unscramble it and people found that titillating. Congress forced the playboy channel and other channels with content to scramble it or otherwise make it unavailable to households with children. The court said this is content based regulation. Your regulating sexually explicit, not of, thus the statue has to pass strict scrutiny and the court says it does not pass strict scrutiny. There are less restrictive as of it,lating and regulating for example, not delivering it to houses that do not want it , allowing people to block channels so their kids cannot watch it. The town of gilbert is a contentbased case, a sign case. Cities are always regulating signs and getting in trouble for it. If you find yourself in city law, you will probably have to deal with the sign ordinance at least once a year as unconstitutional or so it seems. Gilbert banned signs unless the permit was obtained. They regulated things strictly. Poor mr. Reed with his church with temporary signs to tell people where they were meeting this week because it floated from one location to another, kept getting cited for not taking his signs down within an hour of the event ending. He sued on the grounds this was contentbased. That they were treating temporary directional signs differently and he won. The court said, this is a contentbased regulation and it does not pass strict scrutiny. They disagreed with the city argument that we are regulating speakers, not speech, because we dont care what is on the sign, except you do care what is on the sign because you have rules that are different for different signs about different things. The courses the purpose is not relevant when allies content based on its face. Contentbased regulation is unusual but not unknown. One place where it has traditionally come up that gives us a lot of our cases is the incitement. Incitement is when you encourage someone to commit a crime. That is one of the unprotected categories the court has set out. The unprotected categories of speech are obscenity, child porn , incitement, and fighting words. Although i warn you you hear talk in public discussion about fighting words as an exception to free speech, but that comes from the 1942 case against new hampshire, and the Supreme Court has never upheld another regulation of speech on the grounds of fighting words, so it is not really a relevant case. It has not had a lot of weight. Incitement is where we get a lot of our cases, especially from the early 20th century. Incitement was used regularly to regulate speech that the government did not like, frequently from communists, anarchists, and other flavors of political undesirables. This led over time to the development of a doctrine called clear and present danger. A couple things worth noting in these cases. First, if you look at what people are actually saying today, none of this would seem controversial or subject to regulation. Second, much of this doctrine has been dealt with Oliver Wendell holmes and Louis Brandeis in dissent and frequently you hear cases quoting that dissent and when he you read the case you will see the person involved went to jail. Shank is one case where he is a standard model socialist and he is opposing the draft in world war i, making the argument, which i believe to be correct, that the draft violates the 13th amendment. The Supreme Court said otherwise a few years earlier in the Selective Service cases, but it is a respectable constitutional argument. Piece and form confined itself to peaceful measures, such as a petition for the repeal of the Selective Service act. So, shank loses is the bad news. The court says he would not have sent these documents unless it had been intended to have an effect and we do not see what effect it could be expected to have upon person subjected to the draft except to influence them to obstruct carrying it out. That is, if you tell people youre drafted and the draft as unconstitutional then that is bad. That would only be done if you have some sort of intent to obstruct the draft. And that is good enough. The most stringent protectionist, famous line, most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. That is a famous holmes line and you hear it all the time, though people often say you cannot shout fire in a crowded theater. It is important to remember the falsely part of the statement. It is fine to shout fire in a crowded theater if there is a fire, though maybe not the most constructive approach. Shank is an unfriendly case to free speech. The court takes the position that if you Say Something that may have a bad consequence, the government can shut you up. Even if, as in this case, it is a reasonable argument to make cute under the espionage act ,hey upheld the conviction publishing articles in a german language newspaper talking about how the draft was illegal. Circulation of the paper was tiny but the court said it might produce disaffection among germanamericans and that is that. Debs involved the conviction and jailing of a prominent socialist. He was a candidate for president three million votes running for the socialist party. Giving a speech that today seems like something you could hear all over the place, talking about how socialism was great. And said i cannot say everything i would like to say here and apparently that was considered enough to justify the inference that he would have said things that were illegal, and that would place thoughts and listeners minds that were the same as if he had said things that were illegal and therefore debs could go to jail, which indeed, he did. Really quite different from today. Abrams against the United States. Most americans do not remember that toward the end of world war i, the United States and other western countries invaded russia. The russians do remember. In a way it is too bad it did not work. They wanted to put on the communist revolution there and had they succeeded, it would have saved the world and russia a world of pain and hurt. But it was a failure. Abrams and others who sympathized with the russian revolution, tried to encourage workers in the United States to oppose it. The result was that they went to jail. The Supreme Court says even if their primary purpose was to aid the cause of the russian revolution, they would nonetheless injure the war effort with germany. The plan of action they adopted necessarily involved that. Therefore the purpose of the propaganda was to excite at the supreme crisis of the war, disaffection, sedition, riots, and as they hoped, revolution in this country about for the purpose of embarrassing and possibly relegating and defeating military plans of the government in europe. Again, nowadays we see all kinds of antiwar activism that is mundane. At the time it was controversial. Holmes and brandeis dissent. They say you should not be able to punish speech unless it is proven to intent the actual consequence you are punishing it for, and that it should probably be likely to. Congress certainly cannot forbid all efforts to change the mind of the country. This is the famous passage from this dissent. Persecution to the expression of opinion seems to be perfectly logical if you have no doubt of your premises or power and want a certain result with your heart, you naturally express your wishes and law and sweep away opposition. But when men have realized time has upset many fighting fates , they may come to believe the ultimate good desire is better reached by free trade in ideas, that the best test of truth is the power of a thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out. That is the theory of our constitution. When you hear people talk about the marketplace of ideas, that is where this theory came from. Holmes idea that i did should have to pay with other ideas in a marketplace and that truth would be arrived at. And his notion that it makes sense to suppress people who disagree with you if you are sure that you are right, but you can be wrong. Indeed you could. Holmes and brandeis are dissenting and the court is not moving in their direction as we see in gitlow v. Ny. In the defense of people 100 were not afraid of communist revolutions because they were happening. It was a shock when the communists overthrew the czar. The old russian empire, they killed the czar and his ministers, anastasia screamed , as the song says. Everyone was shocked by that. This country seen as huge and powerful with an established monarch could be turned upside down overnight. It made people afraid and there were communist and countries around the world, not exclusively in the west, who desired to bring about a similar result themselves. These red scares were not the result of fantasy, exactly. But they were quite extensive and swept an awful lot of people in who were no real danger. Getlow was a good example of that. He published the leftwing manifesto and the revolutionary age, containing writing advocating, advising and teaching the doctrine, that organized government should be overthrown by force, violence and unlawful means. He was pretty straightforward about what he believed. Clearly to do that would be illegal. However, as the court itself says, there is no evidence of any effect resulting from the publication and circulation of the manifesto, which is typical. Your text has extracts from it which sound like typical leftist revolutionary boilerplate, which remains the same hundred years later. The court was quite unsympathetic. The jury did not find advocated abstract doctrine of overthrowing by force but action to that effect. A single revolutionary spark may kindle a fire that smoldering may burst into a sweeping and destructive conflagration. When courts talk about sparks and fires, that is always a sign someone is going to go to jail and they are worried and upset. Again, we get a holmes dissent. He says this is a clear and present danger tariff and there is no clear and present danger. There is no danger of an attempt to overthrow the government by force of the part of the small minority who share the defendants use. In some sense and incitement if you believe you will act accordingly, but we do not throw people in jail for having ideas. He said that the publication of this document had been an attempt to induce an uprising and not at some indefinite time, it would have presented a different question but there is insufficient definiteness in terms of the time. We had a lot of cases after this where the court remained on to remained unsympathetic to the usually communist or anarchist, and a lot of overlap of those groups. Brandeis added to his theory that there should be serious injury resulting from the speech. Whitney post no such danger but posednvicted whitney no such danger but was convicted. Brandeis argued for test that the danger from the speech must be clear, eminent, substantial or serious, but the court did not adopt it. The court said later being a member of a group that has as a syndicalism was enough to make you level. We see similar stuff in cases involving the communists after world war ii. There were lots of communists after world war ii and many were in the government, and many were directly connected to the soviet union. Back in the 1990s, some previously unknown material from a project called vanilla intercepting communications from soviet spies showed the