Freedom of Speech and of The Press

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 1341

As with the other constitutional doctrines discussed in this book, the First Amendment doctrine regarding "freedom of speech, or of the press," has undergone a number of transformations in our Nation's history. In each of these eras, however, the standards of review regarding "freedom of speech" and "of the press" have been the same. Thus, the term "freedom of speech" will be used in this book to encompass the judicial standards relating to both clauses of the First Amendment.

Some general observations about the nature of free speech doctrine prior to the modern era appear at § 29.1. An introduction to free speech doctrine as it exists today appears at § 29.2. Next, detailed discussion of modern free speech doctrine appears at §§ 29.3-29.6. At the end of this discussion, specific examples of cases involving the freedom of the press, as one kind of free speech case, appear at §§ As noted in the introduction to Sub-Part Four, cases involving exceptions to modern free speech doctrine for categories of speech that get their own kind of First Amendment review, less than standard First Amendment protection, are discussed in Chapter 30.

§ 29 1 Observations About First Amendment Doctrine Prior to the Modern Era
§ 29 1.1 The Original Natural Law Era

In the original natural law era there were no major Supreme Court decisions granting protection to the freedom of speech. The issue regarding freedom of speech was raised, however, with the passage in 1798 of the Alien and Sedition Acts. Among other things, the Sedition Act criminalized certain forms of politically partisan speech, which the Act termed "sedition." Compared with existing English law the Act was progressive, in that it did make "truth" a defense to the Act, which was not true of the English sedition laws of the time.1 The notion that truth should be a defense to criminal libel was reflected in colonial attitudes, such as the famous libel trial of John Peter Zenger in 1735 for publishing criticisms of the Governor of New York. In that case, Zenger's defense counsel, Andrew Hamilton, argued to the jury that they had the power to determine both law and facts, resulting in Zenger's acquittal based upon jury nullification of the English law where truth was not a defense.2

During the campaign of 1800, a number of Jefferson partisans were arrested under the Act, and Jefferson and his allies used the passage and enforcement of the Act to brand President Adams and his administration as hostile to the rights of free speech. After Jefferson's election in 1800, the Alien and Sedition Acts were repealed, in part because of the understanding of Jefferson and his supporters that the Act constituted an infringement on the rights of free speech, even though truth was a defensePage 1342 under the Act. As the Supreme Court noted many years later in New York Times Co. v. Sullivan:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. . . . Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter "which no one now doubts." . . . Jefferson, as President, pardoned those who had been convicted and sentenced under the Act. . . . The invalidity of the Act has also been assumed by Justices of this Court. . . . These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.3

§ 29 1.2 The Formalist Era

Despite this general understanding of the First Amendment during the original natural law era, the first "freedom of speech" cases of the formalist era downplayed this legislative and executive practice surrounding the Alien and Sedition Acts. Instead, following the formalist predisposition toward literal interpretation, the cases concluded that the First Amendment was directed primarily at the literal meaning of "free" speech, that is, the right to speak freely and not be limited by prior restraints.

For example, in Patterson v. Colorado,4 a 1907 case, the Court focused on literal text, as well as 18th century historical sources specifically addressing the freedom of speech, such as Blackstone, to conclude that protection against prior restraints was the full extent of the Free Speech Clause of the First Amendment. Leaving undecided whether the 14th Amendment Due Process Clause incorporated the First Amendment, thus making it applicable against the states, Justice Holmes wrote for the Court in Patterson that such incorporation would make no difference in the power of a state trial court to impose punishment for contempt on a publisher who had questioned the judge's reasoning in a pending case, so long as the judge's determination that the statements tended to obstruct the administration of justice was not an arbitrary pretense or an arbitrary punishment.5

Justifying that conclusion, Justice Holmes began by saying, "In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare."6

Even in applying this doctrine, the initial formalist-era cases gave First Amendment protection against prior restraints a limited reading. For example, the first Supreme Court case dealing with government power to regulate speech on public grounds was Davis v. Commonwealth ofPage 1343 Massachusetts,7 decided in 1897. The Court held that forbidding speech absolutely, or on condition of obtaining a license, was no more an infringement of the rights of a member of the public "than for the owner of a private house to forbid it in his house."8 Thus, the Davis Court refused to strike down a permit requirement for speaking on a highway or public park. Further, the Court in Davis was unconcerned that the law imposed a prior restraint in terms that gave the mayor unbounded discretion to grant or deny applications.

Between 1909 and 1917, various social groups, and most prominently unions, and in particular the International Workers of the World, the Wobblies, pressed for greater free speech rights than mere limitation on prior restraints. As noted by Professor Bradley Bobertz:

In this turbulent atmosphere, efforts to understand the meaning and function of free speech took on greater urgency. The proceedings of the U.S. Commission on Industrial Relations provide one illuminating source of discussion about free speech. . . . The hearings of the Commission, published in eleven volumes in 1916, contain tens of thousands of pages of testimony from an extraordinarily wide range of witnesses, including Clarence Darrow, Louis Brandeis, Mother Jones, Theodore Schroeder, William "Big Bill" Haywood, scores of ordinary workers, and the celebrated icons of capitalism, including Daniel Guggenheim, George Walbridge Perkins (of U.S. Steel), Henry Ford, and Andrew Carnegie. . . .

One witness above all others impressed the Commission with his approach to controlling protests. Arthur Woods, a longtime friend of Theodore Roosevelt, had taken over as New York City Police Commissioner in April 1914, following weeks of violent confrontations between police and protesters. Shortly before Woods took office, more than a thousand protesters had clashed with police after a march up Fifth Avenue, during which...

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