Controls on the Press in
Colonial America
Type of control Source of control
licensing royal governors
seditious libel courts
breach of privilege colonial assemblies
(contempt of assembly)
Licensing in the colonies
1st newspaper in the colonies, Publick Occurrences,
Both Foreign and Domestick, 1690, Boston, shut down
after one issue for publishing without a license.
2nd newspaper, also in Boston, 1704, licensed and
subsidized by colonial authorities.
How and when ended?
In the mid-1720s, largely due to efforts of James
Franklin, who refused to submit to licensing, jailed twice.
Public opposition. Licensing just died out.
Seditious libel in the colonies
What was seditious libel?
Any criticism of government. Anything causing public to
think ill of government. Truth is irrelevant. In fact, “the
greater the truth, the greater the libel.”
How and when ended?
1735 seditious libel trial of John Peter Zenger effectively
ended prosecutions but did not change the law of
seditious libel. Change in the law didn’t come until the
end of the 18th century.
Breach of privilege (or contempt
of the assembly) in the colonies
What was breach of privilege?
Criticism of the colonial assemblies or their members.
How punished?
Summarily by the assemblies. None of the rights
available to the accused that he would have had in a
regular court of law.
How and when ended?
Enforced until the Revolution.
Blackstone’s definition of freedom
of the press, 18th century
No prior restraints on publication but not
freedom from post-publication punishments
for “criminal” publications.
Was this what the framers of the First
Amendment meant when they protected
freedom of the press in the First
Amendment?
First Amendment to the
U.S. Constitution
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.
Added to the Constitution Dec. 15, 1791.
The Sedition Act of 1798
A crime to speak, write or publish any false,
scandalous and malicious statements about
Congress or the president.
Law incorporated the two protections Hamilton
had argued for in the Zenger trial:
1. Truth was a defense.
2. The jury was responsible for determining
whether the words were criminal.
The Sedition Act of 1798
Led to the development of a new definition of
freedom of the press:
Freedom of the press consists of no prior
restraints and the freedom to criticize
government.
Law expired in 1801. President Jefferson repaid fines
and pardoned those who had been convicted.
20th Century Sedition Cases
Schenck v. United States, 1919: The clear and present
danger test is enunciated by Justice Holmes.
Abrams v. United States, 1919: Holmes dissents,
saying the majority is misconstruing the clear and
present danger test.
Gitlow v. New York, 1925: For the first time the U.S.
Supreme Court applies the First Amendment to the
states via the Fourteenth Amendment; the Court
incorporates the First Amendment’s free speech
provision into the Fourteenth Amendment by declaring
the word “liberty” included the liberty of speech.
Incorporation
Until 1925, the Bills of Rights, including
the First Amendment, applied only to
actions of the federal government
Gitlow v. New York, 1925, U.S. Supreme
Court applied the First Amendment to the
states via the Due Process Clause of the
14th Amendment.
Incorporation
The process by which the U.S.
Supreme Court has applied portions
of the Bill of Rights to the state via
the 14th Amendment’s due process
clause.
More sedition cases
Dennis v. United States, 1951: It becomes
obvious that the justices do not agree on the
meaning of the clear and present danger test.
Yates v. United States, 1957: The Court begins
developing a new test, drawing a distinction
between advocacy of abstract doctrine and
incitement to imminent illegal action.
Brandenburg v. Ohio, 1969: The Court
announces the new test -- Advocacy of abstract
doctrine is protected by the First Amendment;
incitement to imminent lawless action is not.
Functions of freedom of expression in
a democratic society
for individual self-fulfillment
for the advancement of knowledge and discovery of
truth (marketplace of ideas theory)
to enable citizens to participate in social, including
political, decision-making (self-government
rationale)
to maintain a balance between stability and change
in society (safety valve function)
to serve as a check on government (watchdog
function)
First Amendment tests
Bad tendency test
If expression had a tendency to cause
harm, it could be prevented and/or
punished.
First Amendment tests
Clear and present danger test
The First Amendment does not protect speech
that creates “a clear and present danger of
bringing about substantive evils that Congress
has the power to prevent.” First articulated in
Schenck v. U.S., 1919.
When can “dangerous” speech
be prohibited?
The “clear and present danger” test has been
modified (some say replaced). The current test for
determining when speech is so dangerous it is
unprotected by the First Amendment distinguishes
between incitement and advocacy.
Advocacy of abstract doctrine is protected by the
First Amendment.
Incitement to imminent lawless action is not
protected.
Based on Yates v. U.S., 1957, & Brandenburg v. Ohio,
1969
First Amendment tests
Balancing test
The right to freedom of expression is balanced
or weighed against competing rights and
interests, for example, the right to reputation or
to a fair trial by an impartial jury.
Ad hoc — Each case handled separately, no
standards or definitions.
Definitional — Specific, defined standards
applied. Preferred approach for consistency
and predictability.
Levels of scrutiny
Courts apply different level of scrutiny
(review) to regulations on expression
depending on a number of factors, e.g.,
whether the regulation is content-based or
content-neutral, what type of expression is
at issue, the goal of the regulation.
Strict scrutiny
If a regulation is aimed at restricting expression
or is a content-based restriction affecting fully
protected expression (such as political
speech), courts apply strict scrutiny.
The regulation will be held constitutional only if
1. There is a compelling governmental interest to
justify the regulation
2. The regulations is narrowly tailored, the least
restrictive means available to achieve the goal.
Intermediate scrutiny
If the regulation is not aimed at
expression, is content-neutral or
affects less protected speech (such
as commercial speech, courts apply
intermediate scrutiny.
The O’Brien
(or intermediate scrutiny) test
Is the regulation within the power of
government?
Does the regulation further a substantial
government interest?
Is the interest unrelated to the suppression of
expression?
Is the restriction on free speech no greater than
necessary to achieve the government interest?
(We’ll cover other types of intermediate scrutiny
later in the semester as well.)
Fighting Words
Chaplinsky v. New Hampshire, 1945: Words
“which by their very utterance inflict injury or
tend to incite an immediate breach of the
peace.” Must be aimed directly at an individual.
R.A.V. v. St. Paul, 1993: Local ordinance
prohibited conduct for the purpose of arousing
anger, alarm or resentment “on the basis of
color, creed, religion, or gender.” U.S. Supreme
Court struck the law down as unconstitutional
since it amounted to viewpoint discrimination.