Thomas L. Tedford
Dale A. Herbeck
Freedom of Speech: The English Heritage
OUR ISSUES:
The
meaning of free speech
The
rationale for allowing free speech
Who
could practice free speech
Standards
of practice and contraint
Freedom of speech was born in Athens (800-400 B.C.)
That
liberty was not absolute.
Its
exercise was reserved for adult male citizens.
The Athenians had traditions or laws against:
Slander
(speaking ill of others)
Impious
Speech (blasphemy of the sacred)
Sedition
(severe criticism of the government)
Rome: dissent by permission
Became
accepted practice in Europe and the British Isles for 17 centuries
NO
Western nation – and the Christian church --guaranteed freedom of expression
The Magna Carta (1215)
Justice
could not be sold, denied or delayed except by peer judgment and the law of the
land
Sir William Blackstone
Commentaries
on the Laws of England (1765-69)
“Liberty
of the press is indeed essential to the nature of a free state”
Freedom
of speech exists when there is no prior restraint on publishing
However,
bad tendency doctrine (punishment acceptable)
until Reform Bill of Rights of 1832
Freedom of speech depends on:
Protection
from arbitrary arrest and imprisonment (the writ of habeas corpus)
The
right of EACH citizen to communicate
In England, three phases of freedom of speech:
The
monarch and high clergy
Members
of Parliament
All
citizens
Competent authority = the only source of theological
truth
The English Bill of Rights (1689)
Expands
freedom of speech to members of Parliament in their official capacity during a
legislative session ONLY
During
most of the 17th century, Parliament was the principal deterrent to
freedom of speech in England
The four libels
Sedition
Defamation
Blasphemy
Obscene
libel
Seditious libel
The
Privy Council (to control seditious speech)
The Court of the Star
Chamber (1542 to 1641)
Fox Libel Act (1792):
truth accepted as a defense
Henry VIII (1531): Blasphemy became a concern of the
state in England with the Church of
England
The first Index of banned books: 1564
Johann Gutenberg invents the printing press in 1450
Prior
communication: voice, hand-copied manuscripts (NO mass audience)
Licensing: controls printing presses and manuscripts
Henry
VIII: takes control of licensing in 1538
Stationers’
Company monopoly in 1557 (Queen Mary) … charter reconfirmed in 1559 by Queen
Eliabeth … finally expires in 1594 … Queen Eliabeth used the Stationers’
Company, the church and the business community to control freedom of speech
Statute of Anne (1710) and copyright
1774:
copyright the author’s right, not the publisher’s
Chapter 2
OUR ISSUES:
Tolerance
of dissent during the Colonial period
The
Bill of Rights
Freedom
of speech and the Alien and Sedition Acts
In prerevolutionary America, the issues were similar
to England:
Who was
allowed to speak
What
religious and political ideas were permitted
Degree
of prior restraint of the press practiced
Governor Thomas Dale of Virgina (1612)
“Lawes
Divine, Moral and Martial”
The chief oppressors of political dissent in
prerevolutionary America were: elected assemblies
Roger Williams banished in 1635 from Massachusetts
for: advocating the separation of church and state
John Peter Zenger trial (1735)
Truth
is a defense
Licensing in America: not the issue it was in
England (with local exceptions)
Freedom of speech for ALL citizens did not become
official government policy in America until: 1791, ratification of the Bill of
Rights
Constitution of the United States (Sept. 17, 1787;
ratified June 21, 1788)
Promised
a Bill of Rights
Guarantees
(p. 22)
Copyright Act of 1790
Author-creator
rights (14 years plus 14 years) until 1831 and Weaton v. Peters
James
Madison and the 12 proposed amendments
Madison:
states should be required to guarantee certain rights
House
vs. Senate: controls on the federal governemtn but NOT on state governments in
vital civil liberty areas
Significance
of Gitlow v. New York (1925)
The conflict over civil liberties
International
affairs
The
Civil War
The
feminist movement
The
growth of the publishing industry
Post-Civil
War moral crusades
White male establishment vs. aliens, women, slaves
Alien and Sedition Act of 1798
The
Naturalization Act
The
Alien Act
The
Alien Enemies Act
The
Sedition Act
Four major First Amendment crises
The
period of the Alien and Sedition Acts
The
pre- and post-Civil War period
World
War I
World
War II
And … ?
Private libel
All
defmation statues are at the state level
The
defamation of private persons is excluded from the protection of the First
Amendment
Religio-moral heresy
Early
in the Republic, assurances of freedom of speech and separation of church and
state ad little deterrent effect on pious prosecutors, judges and jurors
Federal obscenity statues
1842:
Section 28 of the Tariff Act
1865:
Postal Act (section 16)
1873:
Comstock Act and Anthony Comstock
Constraints upon media
1834: Wheaton
v. Peters – copyright law is whatever the Congress says it is
What
may be sent through the mail
Technological
innovation
Constraint of time, place, manner
1897 –
Davis v. Massachusetts (til 1939)
Chapter 3
Political Heresy:
Sedition in the United States Since 1917
“The absence of seditious libel as a crime is the
true pragmatic test of freedom of speech.” – Harry Klaven Jr.
This chapter deals with the Supreme Court’s great
debate from 1919 (Schenck) to 1969 (Brandenburg) over freedom of expression for
political dissent:
From bad tendency doctrine to a more liberal
incitement rule
Turner v. Williams, 1904
The tendency of (John Turner’s) views, not actual
action or incitment
The doctrine of bad tendency was the predominant
judicial approach in First Amendment cases up to 1919
How has First Amendment evolved since 1919?
Molded by the Supreme Court involving decision
concerning seditious libel …
… over two periods:
1. Schenck v. United States, 1919 (clear-and-present-danger
test is proposed) to the Smith Act of 1940
2. The Smith Act prosecutions following WWII to the
present
1919-1940
Bad tendency doctrine still overrules CAPD
CAPD: government must PROVE speech produces a danger
BOTH clear and present
CAPD not used to reverse a conviction prior to 1940
Yates v. United States (1957)
Moves away from bad tendency and toward CAPD
Brandenburg v. Ohio (1969)
Supreme Court decisively rejects bad tendency and
adopts an incitement test (before speech/expression can be supressed, the
government must prove incitement