Civil Rights and Civil Liberties – 1st Amendment – Free Speech
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Civil Rights and Civil Liberties – 1st Amendment – Free Speech

Our current standard for determining the constitutionality
of legislation restricting or punishing speech — which is that the speech in question
has to result in “imminent lawless action” — was formulated by the Supreme Court in
1969 in a case called Brandenburg v Ohio — a mere 45 years ago.  That means that it
was not until the second half of the twentieth century that we developed our current approach
to free speech. But, why did it take so long?  This question
is important not only for understanding the history and development of this free speech
right itself, but it’s also important for understanding how Civil Rights & Civil Liberties
developed more generally in the 20th century.  Contextual, historical developments outside
of the Court, including the emerging civil rights revolution and the Vietnam War, combined
with the Court’s new role as a protector of fundamental rights and liberties after 1937
drove free speech jurisprudence in the second half of the twentieth century.  These 20th
century developments, though, not only had to become politically possible in the 20th
century, but they also had to upend and replace older conceptions of free speech that stretched
back centuries. The original understanding of free speech
in the United States was one that was inherited from England, and was thus woven into the
customs and laws of both the states and the federal government. These understandings included ideas like “no
prior restraint,” which meant that speech vehicles (newspapers, pamphlets, etc.) could
not be restricted.  However, the author and publisher of these speech vehicles could be
prosecuted or muted for publishing anything after publication that was determined by the
state to be licentious, libelous, obscene, or detrimental to the state itself. In the first decade of American government
we saw this play out with the passage of the Alien & Sedition Acts by the administration
of President John Adams in the late 1790’s.  In part, the Act made it criminal to punish
anything negative about the Adams administration, and many people, like Benjamin Franklin’s
grandson, were prosecuted.  Others, like James Madison and Thomas Jefferson, who had
a more libertarian view of free speech, protested the acts most famously in the Virginia and
Kentucky resolutions, which argued that states could declare federal law unconstitutional.
 Nevertheless, the views of Jefferson and Madison remained a minority well into the
20th century.  Moreover, even among those who were against the Alien & Sedition Acts,
there was still the belief that individual states restrict speech in many different ways
— after all, the Free Speech clause would not be incorporated against the states until
the 1920’s. Older, common law understandings would continue
to shape the development of the free speech clause, especially as the slavery controversy
heated up in the first half of the nineteenth century.  Anti-Slavery abolitionists often
used heated rhetoric in the condemnation of slavery, leading some states to ban such material
through the mails. And then in the 1870’s, the federal government
passed the Comstock Act, which prohibited the sending of obscene materials through the
mail. On the state level, states routinely banned certain materials and books, like those
by Gustav Flaubert and James Joyce. But the rumblings of change began with the
wars of the twentieth century.  During WWI, states and the national government passed
syndicalism laws and Espionage Acts, which severely restricted free speech, both written
and verbal.  By the end of WWII, 32 states had passed syndicalism laws, 1900 people had
been prosecuted, and more than 100 newspapers, pamphlets, and periodicals were censored.
 And from WWII to the change we see in 1969 in the Brandenburg case, the Court, with some
exceptions, was unable to muster a majority of justices to strike down these laws as violative
of free speech. So what changed? For one, our experience with totalitarian
states during WWII gave some pause to our mechanically applying the older common law
rules, such as the doctrine of no prior restraint.  How were we any different than Nazi Germany
or Imperial Japan if we arrest and censor people for their speech? Relatedly, the Cold War was a fight between
the US and Russia over power throughout the globe.  At the very least, older more restrictive
understandings of free speech were bad “PR” for the United States as they sought to project
US values abroad. During the Cold War, tensions ran high in
the upper echelons of government — and in Hollywood, too — about Communist infiltration.
 Led by Senator Joseph McCarthy of Wisconsin, his committee on Un-American Activities ruined
professional and personal lives with witch hunt’s centered around things people simply
said or wrote or who they met with. The emerging Civil Rights movement and growing
concern about the Vietnam war also contributed to the Court crafting a new, more libertarian
standard of balancing free speech rights with governmental interests. So by the late 1960’s we can generally see
the development of the Free Speech clause during the 20th century:  In the first half
of the twentieth century, the Court produced balancing tests that sought to balance legitimate
governmental interests with free speech; in the second half of the twentieth century,
the court will produce a two-level theory, where political speech (like in the cases
for this section) receive special protection (or strict scrutiny) unless they fall into
four categories: obscenity, libel, fighting words, or commercial speech. So as you read these cases here are some things
to consider: How valuable is free speech to self-government
and the democratic process?  Is it possible that it’s the most important right?  And
if so, why did it take so long for us to recognize it as such?
What, if any, are examples of legitimate governmental interests that curtail free political speech?
 Is war one of them? Could you think of a test that could balance
the interests of the state with the free speech interests of the individual? In this section, enjoy your relatively new-found
right to free speech.

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