Robert Sheridan, Esq.
Professor, San Francisco Law School
Constitutional and First Amendment Law
Three-unit First Amendment Elective, fifteen class hours.
June 5, 2006
INTRODUCTION TO FIRST AMENDMENT LAW
I will be looking for students to select topics to report on.
The order of topics and cases is subject to change.
The First Amendment of the Bill of Rights (ratified 1791), to the U.S. Constitution (drafted and signed in Philadelphia in 1787, ratified in stages over the next year in popular conventions in the states ) was drafted by James Madison, who at first opposed even having a Bill of Rights.
In it Madison proposed freedom of speech, press, religion (in two parts: non-establishment, and free-exercise of), petition and peaceable assembly. Press is generally considered a part of speech. The press, as an industry, is generally not given greater freedom to speak than other forms of business.
The fact that Madison opposed a Bill of Rights does not mean that he opposed having those rights. He simply reasoned that since such rights were already contained in the new state charters enacted after independence was declared in 1776, they weren’t needed. Since the new central government had not been granted powers to curtail such rights in the first place, why did it need to be told that could not abridge them? Wouldn’t this just be a set of “parchment rights” that would be easy to evade and thus illusory?
The so-called Anti-Federalists feared big government, however, and insisted on having a Bill of Rights in return for support for the new Constitution. Madison consulted the state charters, which themselves reflected hard-won victories of Parliament over the British Crown and the King’s Prerogative a century earlier (See the English Civil War, Petition of Right, Lord Coke, the beheading of Charles Stuart I who believed in the divine right of kings to a fault, the Puritan Oliver Cromwell, who didn’t, etc.)
This is where Madison got his ideas, in part. He and his fellow Framers were familiar not only with the history of their mother country, England and its laws, but also with the Protestant Reformation (most of the Framers were Protestant, with few Catholics, no Jews, no Muslims, no Buddhists, as far as is known). In drafting the Bill of Rights, Madison consulted the thirteen state charters or constitutions to see what they protected, then boiled them down to twelve action packed paragraphs, of which the first two failed of passage. His number three is our First Amendment. One of his other two was adopted in 1992 as our 27th, referring to congressional salaries.
The Protestant Reformation suddenly licensed individuals to think for themselves apart from Church authority. You were now in charge of your own salvation. You could decide whether you wanted to talk to God directly (Protestant), or with the guidance of Church authorities (Catholic and Episcopal). Puritan churches hated bishops. “Every church on its own bottom,” but still Massachusetts taxed the public to support the ministers until 1820 in, as they called it, “the New England Way.” The Episcopal church (episcopal means “bishop”) in Virginia was run by bishops.
In America, you could decide for yourself whether it made better sense to baptize infants or to wait until they grew up and understood what was happening. Those who favored later baptizing were called anabaptists in Europe. Roger Williams split from John Winthrop’s Puritan colony in Massachusetts Bay soon after it was founded in 1630 and headed down the coast to Narragansett Bay where he set up the Rhode Island Colony which guaranteed religious freedom to everyone.
The earliest Jewish Congregation in the British colonies is said to be in Newport. New York was originally a Dutch colony, business oriented from the start, and more interested in the state of your ability to provide goods and services as promised than the state of your possibly blackhearted soul, much as today. I’m proud to state that I’m a New Yorker, Staten Island variety (originally a Dutch colony, named after the Estates General of Holland, and not, contrary to popular belief, from a Dutch sea-captain’s query, “Is dot an Eylandt?”) Color of heart: optional.
The Reformation was God-shaking and Man-shaking stuff, for which Galileo paid the price at the hands of the Church in Rome.
The Scientific Revolution, begun at the turn of the previous century, circa 1600, by Copernicus, Newton, and Galileo, who put the sun at the center of the world, not the earth, as previously thought, was truly Earth-shaking. They resumed scientific tradition after a 2000 year hiatus since Archimedes and Aristotle were interrupted by Church authority. Aristotle’s logic provided a description, and prescription of the tools of valid reasoning. We base our law of evidence on it today, along with our fundamental rule that law, to be constitutionally valid, must be rational, not arbitrary.
Rousseau’s “Social Contract,” Locke’s Essays on Toleration, and the history of the classical civilizations of Greece and Rome were studied and well known to the Founding Fathers, indeed.
Madison studied at the College of New Jersey, later re-named Princeton, a divinity school at first established to train ministers of the Puritan clergy, what was left of them as they morphed into competing sects including Unitarians, Baptists, Methodists, and other faith-based systems of salvation.
During the pre-revolutionary period, James Madison and Thomas Jefferson, both sons of inherited wealth (land and slaves) of the slave-holding “Tidewater Aristocracy,” served in the Virginia legislature. The Anglican (English) Church (renamed after the Revolution, for the obvious reason that the English had lost) to the Episcopal Church, was the established church of Virginia, meaning that its ministers received their pay out of tax money collected from all citizens. This meant that Presbyterians and Baptists were paying for Episcopal preachers. Jefferson drafted his famous Statute on Religious Toleration that, when enacted after a political contest, forbade the practice. Jefferson put that accomplishment on his tomb-stone, so proud he was of it, along with his establishing of the University of Virginia.
After the United States opened for business under the new Constitution, headquarters in New York, in 1789, then Philadelphia, and now Washington, D.C., we experienced any number of First Amendment crises that did not reach the Supreme Court. FA issues were more readily determined in the various military and political upheavals that occurred, such as during the Quasi-War with the French during and following their Revolution (1789) when France was at war with Britain and we were the ant trying to keep from being trampled by elephants. Our navy was tiny, while theirs was great.
The issue of slavery was slowly percolating as petitions poured into the House, and former president John Quincy Adams, representing Massachusetts, was gagged for presenting them to a Congress that did not wish to consider them, even as coffles of chained slaves were marched past the Capitol building for sale on the streets of the nation’s capital.
The Civil War resulted in arrests of politicians and editors opposed to Lincoln’s war effort to, at first, re-unite the country, and later, to free the slaves.
The First Amendment, one that expressly invoked and was decided on FA grounds case was the Mormon polygamy case in 178*, Reynolds v. U.S. Polygamy was outlawed in the U.S. despite the claim of religious protection, which was disallowed.
Civil rights cases were decided on the basis of other constitutional provisions such as the 14th Amendment guarantees of Equal Protection and Due Process.
The First Amendment didn’t apply to the states anyway pursuant to Barron v. Baltimore.
It was not until the post-WWI case of Gitlow v. New York that the First Amendment was deemed to be “incorporated” via the 14th Amendment to restrict the states. That began the incorporation doctrine by which virtually all of the rest of the guarantees of the Bill of Rights was found to apply to restrict the states, provided deemed fundamental, which most were.
World War I coincided with the 1917 Bolshevik Revolution (Lenin) in Russia. America was frightened of Communists, called Reds. The Czars troops were called Whites. Many emigrated to San Francisco, forming the Russian Community here, if you don’t count Russian Hill and the earlier Russian presence in Sitka, Alaska and Northern California.
The U.S. and Britain sent troops, who had been sent to fight Germany during WWI, to Russia to try to topple the new Communist regime, without success. Opponents of the draft here, and proponents of Socialism, such as presidential candidate Eugene V. Debs, aroused fury and were imprisoned for speaking out against the war and the conscription of men to fight it. This resulted in the first free speech cases to reach the courts, of which U.S. District Judge (in N.Y.) Learned Hand’s opinion in “Masses” is a landmark.
U.S. Supreme Court Justice Oliver Wendell Holmes enunciates what he calls the “clear and present danger” test of what you can say during wartime, which isn’t much because CPD was no test at all, but an elastic rubric that allowed juries to convict whom they disliked (which was most speakers who got arrested) and appellate courts to uphold convictions. Debs and others received federal and state prison sentences of ten and twenty years for passing out pamphlets that today we would laugh at. The prevailing climate of fear and politics are the most important components of First Amendment law, it appears.
This is the beginning of First Amendment law as we know it. The First Amendment, along with other constitutional provisions is concerned with freedom, but freedom of a special sort called expression or conscience, to which I would add many more including individual and group identity. The First Amendment protects your right to develop and exercise your mind as you wish, not as how your neighbors or the government or church wishes, although if you are willing to subordinate your thinking to them, you have that freedom. The FA is the shining light of artists, intellectual creators, dissenters, proponents of new political theory, poets, writers, and thinkers everywhere.
When Pres. Bush proposes to export democracy, he must be talking of more than an elected form of government. He must be advocating freedom of thought in Baghdad, Kabul, Damascus and Teheran although he doesn’t seem to stress it, perhaps for fear of frightening Cairo and Jakarta.
From Madison we can look backwards to a long history of repression that he, and the Framers, were trying to prevent from recurring here, down to today, in which we are vigilant to protect our liberties via a host of cases that enable us to view First Amendment law through cases instead of wars, if we’re lucky.
I propose to select a number of such cases and current issues in order to begin our study. Since the Constitution and the First Amendment cover the world, this may seem like our own Theory of Everything, but one has to start somewhere and leave the rest to future investigation and theorizing.
I’ll suggest the following for our immediate notice:
1. The claim to a privilege by reporters and news gathering media to refuse to name sources, leaks, information thieves, whistle-blowers, and the like as essential to the proper functioning of a free press. The case is Branzburg v. Hayes (1972)
2. The two new Ten Commandment cases, McCreary and Perry (2005). Nativity scenes at city hall, the public square, crosses on city hills.
3. New York Times v. Sullivan (1964). Freedom to criticize government employees even at the expense of their reputations and even incorrectly, factually, so long as the mistake is one of mere negligence and not wilfulness or the reckless turning of a blind eye through a failure to investigate.
4. Outrageous statements, satire and parody. Falwell v. Hustler (1989). In which Larry Flynt takes on the Rev. Jerry Falwell and comes out ahead. See the movie.
5. Brandenburg v. Ohio (1969). The current state of the law of advocacy and imminence, following the Clear and Present Danger test, which no longer exists. The question is which test is more protective of free expression.
6. Invention of the Categorical Approach to making specific exceptions to First Amendment Protection; Chaplinsky, Cantwell, Garcetti.
a. Fighting words
b. Libel
c. Obscenity. Miller v. California (1972 or 3); Stanley v. Georgia; private possession protected.
d. Kiddy porn. Ashcroft v ACLU and related. Cyber porn, virtual vs. real children
e. Sexual harassment in workplace.
f. Retaliation against subordinate government employees for speaking inconvenient or disloyal thoughts in workplace; Garcetti v. Ceballos.
7. Government support for parochial schools:
a. Everson
b. Zelman-Harris
8. Expressive Organizations
a. Boy Scouts of America v. Dale
b. Parades; Hurley
9. Conduct as speech
a. Cohen v. California (“Fuck the Draft” worn on jacket in courthouse; arrest);
b. Tinker; Vietnam era high school students wear black armbands to protest war. Protected speech?
c. O’Brien; draft card burning during Vietnam war; not protected; why? Speech plus regulable misconduct.
10. Hate speech, College Speech Codes, the Political Incorrect.
a. RAV v. St. Paul
b. American Booksellers v. Hudnut
11. Cross-burning
a. RAV v. St. Paul
b. Virginia v. Black
c. O Brother Where Art Thou
12. Campaign funding and lobbying reform efforts
13.
a. Current scandals, Abramoff, DeLay, Randy “Duke” Cunningham
b. Buckley v. Valeo; soft money, PACs; distinction between raising and spending others’ money and your own as a matter of free expression, politically.
14. Picketing abortion clinics
15. Leafleting a neighborhood
a. Village of Stratton;
i. prior identification required? Anonymous speech? Signs on lawns? Flags?
b. Sanctity of home
i. Dr. Frisby, abortion doctor
16. Forced affirmation of belief:
a. School Prayer, moment of silence, non-sectarian invocations, team prayers, pledges, “under God,” Bible readings in class; The values evangelicals
i. Barnette
ii. Lee v. Weisman
iii. Newdow
(1) Legal secularists v. Values Evangelicals.
17. Language restrictions; English as official language.
a. Freedom of identity
b. Wearing of religious garb in public and the workplace; Muslim head scarves, Jewish yarmulkas, Christian crosses;
18. Science and religion; the fight for intellectual freedom in academia
a. Edwards v. Aguillard
b. Scopes “Monkey trial; Charles Darwin, Social Darwinism, Clarence Darrow v. William Jennings Bryan; Strict secularists v. Evangelical Christianity
c. The recent Dover, Pennsylvania trial over “intelligent design.”
There are various approaches to deciding FA cases:
• Absolutist, exemplified by Justice Hugo Black and to a lesser extent by William O. Douglas.
• Strong: See Justices Brennan (liberal) and Scalia (conservative). See Rehnquist in Falwell.
• Balancing: how to subordinate one conflicting right to another which you prefer will dominate. Caveat throwing the baby out with the bathwater. It’s the First Amendment freedom of expression we’re trying to protect here, along with competing values such as reputation and national security.
• Rule, Exception, Exception to the Exception: Scalia in RAV.
• Categorical approach; see the new one created in Garcetti v. Ceballos (2006); some constitutional categories are more soft-sided, osmotic, than others. They tend to morph into one another as they, sometimes, surprisingly, conflict, and one has to give way to another. Do try to preserve as much of the FA as you can.
• Some of the commonly used tools used to strike down restrictions on free expression as unconstitutional include:
• Vagueness doctrine, that puts too much power in hands of the censor, police, and fails to apprise the speaker when s/he risks going over the line. What rule did Janet Jackson and her TV station violate during her famous SuperBowl “wardrobe malfunction?”
• Substantial overbreadth (SOB) & underbreadth: seeing what isn’t there but is definitely implicated by rules restricting expression.
Broadrick v. Oklahoma.
American Booksellers v. Hudnut
There’s lots of criss-crossing from FA to other constitutional doctrines including Equal Protection and Due Process. See Lawrence v. Sullivan. Is this a multi-clause Privacy case? A 14th Amendment Equal Protection case, a due process of law case, a FA identity/expression case? Or other.
See the line of Privacy cases: Griswold, opinion by Douglas on contraception, reproductive rights, marital privacy, bodily integrity, decision-making power of the woman, etc.
Followed by Roe/Casey and then Lawrence.
Does the FA speak in terms of values protected to issues in these contexts? Are the value contexts overlapping?
What about the right to control the quality and end of ones life? Does it make sense to import FA values into such contexts?
What if general laws of general application, which have no intent to curtail religious expression, have an adverse impact on ones right to the free exercise of ones religion? See
Employment Division of Oregon v. Smith
RFRA
Boerne v. Flores, the Archbishop.
RLUIPA - Religious Land Use and Institutionalized Persons Act. Zoning out churches, synagogues, mosques from neighborhoods; protecting , prisoner religious expression.
Note that we’ve left out other important contexts of FA law including political speech, commercial speech, and intellectual property law in anticipation of time constraints. In a nation of 300 million people, you can imagine that the number of conflicts in values is virtually limitless. We’ll do the best we can to hit the high points of the FA mountain range and leave it to you to check out the rest as you go along.
Try to remember that there are values to protect and that the FA goal is to maximize the value of expression as opposed to the many who protest that other values are far more important, especially considering that FA law is pressed, most usually, by those who are often deemed by the majority of public opinion to be the least deserving: Jehovah’s Witnesses who, during wartime, refuse to pledge allegiance to the flag, Nazis who wish to march in Skokie, the home of many Jewish survivors of the Holocaust, American flag-burners (Johnson v. Texas), etc.
It takes guts to defend the FA, is all I can say, and it will not make you popular anywhere. Even the ACLU split over the Nazi march.
But it’s fun to defend the FA, provided that you have a confrontive personality to begin with. Your opponents can often be shown to be oh, so shortsighted, after all, and it makes for good debate. It might even do you good to practice your technique and to recognize values worth preserving for the other 300 million Americans, not to mention the rest of the world that sometimes views us as a beacon of freedom. Why don’t we try to keep it shining brightly, shall we?
I could go on. We haven’t scratched the surface, yet, of how we got to this point, starting from just 5,000 years ago. Do you think that there may be a Free Expression Gene? An Altruism Gene? A brain that is hard-wired to speak and express?
Explain speaking and dancing in biological terms. Cognitive science, a reasonably new discipline, is devoted to answering such questions. See Stephen Pinker (Harvard) and Michael S. Gazzaniga (Dartmouth), as just two examples to lead you into such terrain.
And recall that the First Amendment is just a subset, almost an afterthought, to the rest of the Constitution, whose structure of government and other protective provisions (test-oath prohibition, Art. I, Sec. 6) were thought to be sufficient at the outset, to protect the development of the individual in America.
What have we done that is so good?
Not only have we identified specific values worthy of protection in various conflicted contexts, but we have gotten government to do the heavy lifting for us. We’ve got government on out side, as individuals, at least some of the time. When you realize that the movement favoring civil rights across racial lines was moving oh, so slowly until the Civil Rights Act of 1957 (LBJ, Speaker of the Senate, presiding), established the Civil Rights Division of the U.S. Department of Justice, you can see that getting government behind the individual is no small thing. The Constitution protects individuals, who can go to court to have oppressive laws struck down as unconstitutional. Now that is power. It is government judo, in which you use the power of your opponent to defeat him. First Amendment lawyers are experts in legal jiu-jitso, the tae kwon do of the legal world. You should have earned a colored belt by the time this class ends.
Have I suggested, yet, the unifying theme for all the different contexts? Suggestion: look back vertically rather than across the board horizontally. First Amendment law evolved through trial and effort, including plenty of error. See the Inquisition.
You need to be more like Darwin than Linnaeus. Look to where old values were applied in new contexts, such as where church and state were combined at first, then separated. Repression could then be parsed into whether it was state controlled or church controlled. Why should the state be concerned with your soul? Your salvation? Your relationship with your God? Or no God? New regimes presented new questions.
The resulting principles could then be applied to even more new contexts and given new names for new doctrines. The result is a sort of speciation among First Amendment contexts, doctrines, and rules. See the Breyer dissent in Garcetti for a reference to the many contexts.
Thus speech, press, religion (in its three constitutional references, two in the FA itself and the third, test-oaths, in Art. I, Sec. 6.), petition, and peacable (not violent) assembly all relate to one another historically and perhaps logically, but this can be seen most clearly by traveling back to the various points of separation, one from another, in earlier contexts. Law, in this sense, is history, written down or dwelling in the hearts of men and women, and enforced by lawful authority, which in some places is church dominated authority and in others, a more secular authority.
Which is ours?
Does God really live in the White House?
The I.R.S.?
The Board of Supervisors?
Animal control?
Really?
Note the volatile combination of values in tension:
Freedom, individuality, society, repression;
Law
Religion, science
Identity, Creativity
The FA problem: to accommodate as much free exercise of one without impairing the core functions of others.
How: Hard to prescribe a universal rule, but one way might be by separating what you can and relegating some to other or private spheres under a neutral tent, which government could provide. Don’t forget to insist on a rational material world (as opposed to one that admits supernatural influence or control) as explanations for real world events, as in the evolution vs. creationism controversy and to regulate public affairs.
Did I mention Time, Place, and Manner regulations, above? Let’s not forget them and the forum rules in which government wears different hats to perform different functions as sovereign, landlord, property manager, etc.
Check for updates and comments on the blog, Sheridan Conlaw at:
http://sheridan_conlaw.typepad.com/
rs
