University College at Oxford

COMPARATIVE FREEDOM OF SPEECH

Class 1
 Pg. 1388-1391, Areopagatica, On Liberty
Notes:
I. Overall
a. What defines the limits of speech?
b. How are those limits defined?
c. How are they justified?
d. Under what circumstances are they justified?
II. John Milton, Aeropagatica
a. Milton opposed the monarchy in England and he supported Parliamentary authority
in the English Civil War—during which Charles 1st was overthrown
b. When monarchy was restored Milton had to go into hiding, he was eventually
pardoned
c. He supported principle of religious toleration, he wanted freedom in England for
practice of diverse religious views
i. But his diversity was narrow
1. He did not support tolerance for atheist, Catholics, Jews of Muslims
2. Instead he supported Protestants disagreeing with one another
3. This was a progressive view for this time
4. He was something of a radical in ways
a. He supported morality of divorce—he thought it should be
made legal
b. People regarded this as hieracy, he was subject to censorship
because of these views
d. Licensing Order of 1643 troubled Milton
i. It provided for pre-publication censorship of books, treatises, pamphlets,
anything printed
ii. It is against this order that Milton writes this essay
iii. He supported the liberty to know, to utter, and to argue freely according to
conscience above all liberties

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iv. Part of essay we do not have: he defends idea of writing an essay like this,
and he compliments the parliament for overcoming tyranny of Charles the
1st
v. He brings a complaint about the law to a largely Protestant Parliament
vi. It is better to be constructively critical then I flatter you falsely
vii. He concludes the introduction by encouraging Parliament to obey what he
calls the voice of reason
viii. Historically there was no licensing—look to Greece and Rome, there was
not practice of licensing rules
1. Some cases it is true that blashmephous writings were punished and
authors were imprisoned, but these things occurred after the
publication, not before
a. So question of when for Milton
ix. Noteworthy: practice of licensing was first instituted by Catholics during
the inquisition
1. This appeals to a Protestant Parliament
e. Principles that support his views
i. In Milton’s view why does he think licensing has been supported
1. The concern he identifies
a. Propaganda
2. What is the harm to be avoided?
a. A lack of uniformity
3. What is the evil that Parliament is seeking to prevent?
a. Pg. 2
ii. Pg. 4
1. Fear the infection might spread
a. Anything contrary to the beliefs of Parliament at the time
b. Ideas themselves can spread—they are living and they can
cause harm
i. So objective of state is to prevent harm
iii. What is the problem of preventing harm?

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1. What is actually true?

2. Smart people can separate the gold from the dross
3. But maybe the state is worried about more than just the wise people.
The infection that will spread past the wise people
iv. For whom is the harm greatest?
1. Society or the person himself?
v. We prevent you from reading these books for your own good
vi. He notes the Pope prevented the public from reading parts of the Bible
vii. Books as meat on pg. 3
viii. What about the people who have to censor the books—how are we
protecting them, the poor licensers
f. Is it the case that these books are living?
i. Yes
ii. Pg. 2
iii. They can be an active and continuing danger
iv. Pg. 4
g. What is Milton’s case against the regulation of speech?
i. Censoring books will not prevent the spread of ideas
ii. Pg. 5
1. Music, song, dancing, violins, windows and balconies, bagpipes,
gluttony and drunkenness, all discourse
2. We cannot regulate everything
3. This answer is not sufficient—because it is not complete
h. Pg. 4-5
i. By preventing the distribution of evil ideas—we limit the possibility that
people will be exposed to temptations
ii. Does he think the government will succeed?
1. No
i. Evil can be learned without books
j. You need to recognize sin to recognize virtue
k. God gives us the power of free will

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l. What is he say a licensor to need to be effective?

i. Studious, learned, and judicious people
ii. Pg. 7
iii. Sounds like a large group of people
m. Licensing scheme?
i. There is not a good system
n. Pg. 10
i. We shouldn’t fear letting these ideas out there, truth will win
ii. That is what happens in the end
o. What would Mill say about that—truth will win
i. He is a stronger defender of free speech then of Milton
p. Applying his arguments to post publication
i. You can tell after the books are out there if they do cause harm
ii. We are unsure how it will affect the public if we censor it before we release
it
q. Milton lost the battle but won the war
i. It did not persuade parliament to end licensing
ii. It happened 20 years after he died
iii. But his essay was overwhelmingly praised
r. Milton’s essay was very instrumental for later works
i. Works by John Locke and John Mill
ii. And influential for Americans fighting the royal censure
III. John Mill, On Liberty
a. He believes there is something to a contest of ideas
i. But does truth always win?
1. Even if he could be persuaded that we could identify and agree on
something that is true? Will that win in a contest with evil?
2. Mills says truth is subjective
3. Mill is agnostic about the idea that there is a truth we can know
b. Pg. 7
c. You can punish speech before it occurs or after it occurs

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d. Milton is only addresses the first part, pre-publication licensing

i. Do his arguments apply with equal force to post publication punishment?
1. No
e. Mill would say there shouldn’t be pre or post publication punishment
f. Overall
i. Advocated for liberty from the state
ii. He was two centuries after Milton
iii. Mill considers a number of scenarios when we suppress speech:
1. First scenario in which a speech opposes a dominant opinion
a. Dominant opinion might be false
2. Second scenario 12-21
a. The speech is contrary to received opinion
b. So it is falsehood against a received opinion aka true
c. Dominant opinion might be true
3. Third scenario 21-22
a. Most likely scenario
b. Some speech may be offered against received opinions that
contain both truth and a falsehood
iv. Can we know which category we are in?
1. You can’t have experience alone, there needs to be a discussion
2. There are cases where the received opinion is widely shared—is that
a different scenario?
v. Pg. 1 “if all of mankind minus one”
1. There are a couple possibilities
a. Four billion people believe something true and one person
believes something false
i. How are four billion benefitted by the one then?
ii. We can never be sure that a opinion is wrong
1. Even if we were sure, which we cannot be,
stifling it would still be evil
g. If you never have to defend your ideas then they experience atrophy

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h. The individual’s development is warped if the individual is not exposed to other

kinds of ideas
i. Individual needs to grow
i. Mill does say we are all fallible, and we should not be suppressing opinions, even
if a lot of us hold an opinion it could be wrong
i. Is that decisive in favor of his argument that we should not suppress
1. Four billion could be wrong and one could be right
ii. Circularity to the argument, that the argument for fallibility is fallible
1. Ex. When everyone thought the world was flat or the center of the
universe
j. Mill is a great principle theorist
k. There are a lot of errors in the past, people are fallible, we are aware of this
i. This is not true only for the regulation of speech
ii. We are fallible in every area of human endeavor
l. Is Mills argument here a recipe for paralysis?
i. We cannot wage war because we are fallible, etc.
ii. Is the argument for fallibility a recipe for disaster?
iii. Is there a difference between speech and conduct?
iv. Bad ideas help progression
v. Mill does address this argument on pg. 3
vi. The ability to contest thoughts and ideas and opinions is the basis for our
actions, this is our foundation on which we are able to act
1. We have to start with this
m. Are there any limits on speech for Mill?
i. Mills concept of speech seems to be linked to the communication of ideas—
which form the basis of human government
ii. Are there justifiable limitations?
1. Legal restraints can be a spur to social intolerance of certain kinds
of ideas
a. Because of the social intolerance they may be less likely to
express their opinions which is bad for society

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2. Pg. 24-25
a. Limiting the manner of speech
b. He does see an asymmetry
c. He does not support any limiting manner of speech?
d. The most libertarian statement
IV. West Virginia State Bd. of Educ. v. Barnette
a. A right not to speak—a right to refuse to speak
b. It occurs in the middle of WWII
c. We need to promote national unity
d. Mill would say blind actions are not enough
e. National unity is not enough
f. The problem is which the way the government sought to achieve this
g. The means are problematic in the context of this
h. Defending the state in this case
i. We are not forcing people to believe in this, even when they do not support
this—i.e. even if you do not support the war you pay your taxes
1. You are free to hold your beliefs
ii. What is lost in a compulsory flag salute?
1. You are not achieving the goal
2. Mill—might lead to social intolerance
a. Look at what happened to Jehovah’s Witnesses in the
Minersville School Dist. v. Gobitis case
i. 1391
i. most famous line for a free speech case
ii. “But freedom to differ...”
1. comes from Mill and Milton ultimately
j. Idea that the government requires the compulsory flag salute
i. Problem is the means of how the government sought to achieve this
ii. It is the compulsory affirmation of belief that troubles the court
k. What is really is the objection in the courts view to a child’s being required to salute
the flag, what is the problem?

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i. That the children do not believe

ii. What is the fear that the parents might have about the effect about having
the government recite these words?
1. That the government through this memorization will effect the kid’s
minds
2. It might be a kind of mind control by the government
iii. Why is this objectionable under the First Amendment?
1. It becomes a type of quasi state religion
iv. Is there something in this—altering the thoughts of the individual that is
objectionable to Mill or Milton
1. It is not your speech, it is the government speech
2. How would Mill respond to this—you cannot have the variety—the
government stamps out the variety
a. Government may be altering the debate itself
b. Concern about cramped mental development from
suppressing views
3. How would Milton respond—underlying concerns about the search
of truth—government is setting the table for what is truth
a. Concern over not being able to use God’s gift of free will
b. Concern here over losing ability to discover truth
l. Concern over individual student—people around me will falsely think that I agree
i. Legal compulsion can lead to social intolerance—the Mill view
1. Like the Jehovah’s witness case
ii. Is there a problem with a performative act?
m. Wooly v. Manard
i. Court held that individual objectors could not be required to display the state
motto on license plates—because this amounted to forcing individuals’ to
foster public acceptance of a message some did not find acceptable
V. Overview
a. Milton
i. Liberty above all liberty

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ii. Basic argument is not for free speech across the board, it is limited to his
time and place—where it was on books, pamphlets and other printed
material before it could be disseminated—based on the crown believing
they included temptation, falsehood, evil
iii. His basic view is it is futile to try to issue a prior restraint on these printed
materials
iv. You will not suppress the evil manners—they are learned without books
v. Books are a small part of this, and you will do a lot of harm
1. You are harming human reason—idea that reason itself is given to
us by God—to suppress a book is worse than killing a person, when
you suppress a book you destroy reason itself—as a result truth will
be lost for ages—opportunity to discover the truth is lost—bad
works can allow you to discover, illustrate, and forewarn. Things
can be learned from bad books
2. We can trust human reason to tease out the good from the bad
3. His opinion is tied to religion, we have free will—God has given us
this which government cannot and should not take away
vi. It is about allowing a search for truth
vii. Also—he questions how we would have a licensing system—licensors are
human—there need to be a lot of sensors available—it is a large
bureaucracy of people who will be reading a lot of evil. We need people
who are judicious and smart—it will be hard to find these people
viii. Milton has hope that truth will win in the end—his faith in a way
ix. Basic Idea
1. Milton believed we needed an engaged public
2. A public that was engaged in the pursuit of knowledge and truth, it
is the right and the duty of every intelligent person as a rational being
to know the grounds and take responsibility for her beliefs and
actions

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3. Milton wanted open discussion—sources of information should not

be contaminated by state decisions of what we cannot read—they
are not trustworthy
4. He wanted a society of political unity—secured not by force or
suppression but by a consensus that respects a variety of opinions
b. Mill
i. Does not want suppression of ideas of publication before or after publication
1. Because we can really never know whether an opinion being
expressed is false
2. He believed we are all fallible
a. But isn’t there fallibility in the argument that we are fallible
ii. Mill also worried about state authority and social intolerance that could be
fed by criminalization or suppression of speech
iii. Distinct from Milton:
1. He worried there was harm to self development in the suppression
of speech
2. Under system of censorship—the individuals’ mental development
is cramped—listening to opposing ideas is indispensable to
development
3. Milton is about objective truth
4. Mill is about the individual developing his own capacity
iv.
Class 2
 Pg. 931-946
o U.S. Constitution Amendment I and European Convention on Human Rights
Article 10
I. U.S. Constitution Amendment I
a. “Congress shall make no law . . . 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.”
II. European Convention on Human Rights

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a. Article 10 – Freedom of expression

b. “1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
c. “2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.”
III. First Amendment Overview
a. “Congress shall make no law…abridging the freedom of speech.”
b. One possible view of the meaning of these words
i. View expressed by Justice Black—1930’s appointed by Roosevelt, he
supported broad federal power and broad individual freedom
ii. He took broad approach to this
iii. He was a textualist—every argument started with the text of the
Constitution
iv. Black said this case is easy to decide
v. No law means no law
vi. Text is clear and text is absolute
vii. Speech is absolutely protected
c. You could have written everyone has the right like the European one
d. Freedom of speech comes from the English Bill of Rights
e. Freedom of speech is a term of art
i. It might mean anything you want to say, not just anything you want to say,
etc.
f. “Congress”

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g. “abridging”
h. Black took a narrow view of what constitutes speech—not conduct—that was not
speech
i. Looking to history and theory
i. What is the function of the First Amendment?
j. History
i. Antecedents to First Amendment
1. Bill of Rights
a. Guaranteed freedom of speech, only in Parliamentary debate
2. Two possibilities from framers with this protection
a. One—problem of licensing
i. When printing press was developed—crown claimed
a right to control it—it had to be submitted to a royal
censor for approval
ii. Everyone agrees this was to guard against licensing laws
k. Seditious Libel
i. Allowed the judge to decide whether the speech in question was seditious
under this question
ii. Truth was not a defense
iii. Some scholars believe FA was to abolish seditious libel and licensing laws
1. But shortly after FA was adopted, Congress passed our own
seditious libel law—known as the Sedition Act of 1798
l. Sedition Act of 1798
i. Banned false, scandalous, and malicious writing against the government
ii. Federalists thought we needed this to keep our country safe, we were weak
iii. Republicans opposed this because they knew the Sedition Act would be
used against them, they cited FA in opposition to it
1. They did not cite the FA primarily on libertarian grounds—instead
they said the FA was a protection of state’s rights because it says
Congress shall make no law
2. They said there is no specific enumerated power

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m. Example
i. Prosecution of Congressmen
1. He published criticism of Adams and he was prosecuted under the
Sedition Act
n. The court never ruled on the constitutionality of the SA
i. But the remedy for the SA was political, the country as a whole got rid of it
through politics and it expired in 1801
ii. President Jefferson pardoned everyone under the SA
IV. Theories of the First Amendment
a. Attempt to find out truth
i. Political, religious, truth in general
ii. We saw this in Milton and Mill
iii. Protecting speech helps facilitate the search for truth
iv. Milton says truth will win in the end
v. Mill says it may not always be correct if the truth wins, or if it does win it
will take a long time and a lot of bad things will be done
vi. Metaphor
1. Marketplace of ideas
2. Let the ideas compete with each other
3. Markets do have imperfections
a. We have to regulate the market place to correct for those
imperfections—we have to eliminate monopolies
4. Why would this not be in the market place for ideas
5. Approaches to marketplace of ideas
a. Government regulation in terms of speech liberty and on the
other hand the regulation of economic liberty
b. How should we approach these liberties?
c. Symmetrical or asymmetrical
d. Four possible combinations
e. One view—is neither speech or economic liberty should be
protected by courts

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i. This is held by people who advocate judicial restraint

across the board
ii. People who do not trust legislatures
iii. Critical of current doctrine that accords a great deal
of protection to speech
iv. No reason to treat these things differently
f. Second view—courts should guard both the speech and
economic
i. View of strong libertarians
g. One and two are symmetrical and three and four are
asymmetrical
h. Third view—speech should not be protected and economic
liberty should be protected
i. Held by certain conservative commentators who
distrust government regulation of markets but also
certain kinds of violent and sexual speech should be
regulated
i. Fourth view—speech should be protected and economic
theory should not be protected
i. Court stands here in the fourth view
1. Any justifications for why the court takes this
approach?
a. Speech is personal and intimate to us
i. Autonomy
b. Can speech affect partisanship of
people in government?
i. Speech is more susceptible to
government over reaching so
we need to the counter
balance of the courts to make
sure that does not happen

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ii. Comes from the negative

theory
c. Regulating speech can have more
consequences than regulating
economics
d. Speech leaves open the opportunity
for critique
vii. Do we really need speech to find out the truth?
1. We need an active and engaged public—Milton
b. Self-Government
i. Role of free speech is to inform political, democratic deliberation and
decision making
ii. Speech helps us to become responsible citizens in a representative
democracy
iii. Political speech—intended to contribute to debate about public issues
1. That kind of speech should enjoy highest possible protection
2. It values rational, deliberative, thoughtful contributions to public
debate
3. If you follow this view—you would not give protection to perjury,
libel, criminal solicitation or incitement, pornography, commercial
advertising, hate groups
iv. Metaphor
1. Town meeting
c. Autonomy
i. Speech is not an instrument
ii. It is really about the good of the individual, it helps people achieve self-
fulfillment
iii. Under this approach we would give very broad protections to art, literature,
and advertising—not just political speech
d. Negative Theory
i. Speech does not accomplish affirmative give

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ii. Even if speech has no value it should not be regulated, we should distrust
regulation because we should distrust government power in this area
because the history of government regulation is a history of incompetence,
foolishness, etc.
iii. A lot of bad will be done if we regulate speech
V. Overview
a. FA is not that convoluted
b. For some the outcome of these cases should be easy because the FA seems so easy
c. However, the words can be interpreted to be not so straightforward—we have to
give them meaning in the context of actual conflicts
d. European convention
i. You explicitly say speech is strongly protected, but there are important state
interests to balance against those rights in the judicial process
1. We will take certain things into account
2. Article 10
e. Because the words themselves do not readily supply a meaning, we turn to other
sources to understand the words
i. History
1. Magna Carta, English Bill of Rights
2. Suggests there was a desire to get rid of seditious libel in addition to
getting rid of licensing
3. History has played a very minor role in our understanding of the FA
4. Practices of the Framers
a. What they were concerned with
i. System of licensing—it had ended in colonies 70
years before FA
ii. Theories
1. What could a FA be designed to do in our liberal democracy
a. One: the FA is about the search for truth
i. Truth will come out in the end in the market place of
ideas

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ii. Ideas compete against each other

iii. The best goods/ideas win in the end
iv. But there are imperfections/monopolies in the
market
b. Two: what we are really aiming at is bettering the process of
self government
i. We want a society in which speech contributes in a
serious way to debate about public issues
1. As long as it does that it deserves the highest
degree of protection
ii. We are not as concerned with protecting public
speech
iii. Political speech is at the heart of the FA
iv. The town meeting, where citizens come together
c. Three: theory of autonomy
i. Speech serves individual good, not the good of the
community
ii. We need broad protection for art and literature
iii. We need to grow as individuals to realize our destiny
d. Four: negative theory
i. Government should not be trusted with regulating
speech
ii. History shows they are incompetent and foolish
iii. Government restricts speech to favor itself
iii. Regulation of speech v. regulation of markets
1. Asymmetrical v. symmetrical
2. Justification for asymmetry: speech is more important to
personhood and autonomy over economic activity
a. There may be fewer political safeguards for protection of
speech over protection of markets

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b. Speech is more vulnerable because private markets help to

drive and oppose regulations will have money and influence
to protect themselves
Class 3
 Pg. 947-57
 Special Attention to: 947 Shank, two note cases: 949—Froworth and Debs v. US,
Abrams—Dissent by Justice Holmes, and extra attention to final paragraph of Holmes
o Compare cases together
o Think about reading in terms of above four theories
 Truth, Self-Government, Autonomy, and Negative Theory
 Schneck v. United States, Supreme Court 1919, pg. 947
o First charge was for conspiracy to violate the Espionage Act of 1917 by causing
insubordination
o Second charge was for the transmission of matter declared to be non-mailable
o Third count was for unlawful use of the mails for transmission
o Holding: the defendants were found guilty on all counts
o The document in question was printed
 One side had the 13th amendment and the other side said “Assert Your
Rights”
o Clear and present danger test came from this case
o The character of the act depends on the circumstances
 Frohwerk v. United States, Supreme Court 1919, pg. 949
o Affirmed convictions under the 1917 Act for conspiracy to cause disloyalty, mutiny
and refusal of duty in the military—all on account of publishing 12 newspaper
articles
 Debs v. United States, Supreme Court, 1919, pg. 949
o Eugene Debs was a candidate of the socialist party
o Frist count that he intended to cause insubordination
o Second count he obstructed and attempted to obstruct the recruiting and enlistment
services of the US
 Abrams v. United States, Supreme Court 1919, pg. 951

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o Abrams defendants were Russian immigrants

 They were charged under the 1918 amendments to the Espionage Act for
committing actions intended to incite, provoke, and encourage resistance to
the United States
o Holmes famous dissent
 No intent was proved
 Under this indictment the defendants were deprived of their constitutional
rights
Notes:
I. Background
a. These cases come out of WWI
b. All four cases were within a few months of each other
c. Significant undercurrent of dissent over participation in WWI in the U.S.
d. Enemy in WWI did not have the same “evil” as the enemy in WWII
e. Espionage Act of 1917
i. Prevents disruption of recruiting, enlistment, or war production
ii. Also prohibited attempts to do these things and conspiracy to do these
things, and actually doing these things—all of these are crimes
II. Schenck v. United States
a. First case to come after the Espionage Act to the Supreme Court
b. Why do we start this late, 1919, this is the earliest case of free speech, they do not
exist before this:
i. This is the first time the supreme court considers the substantive protections
afforded by the FA
ii. Prior to this Congress has passed very few laws restricting speech
iii. And a lot of the speech cases we will read will be state cases, this is federal
c. These defendants were convicted of violating the Espionage Act of 1917
d. Holmes says on 948, was the FA only designed to end prior restraints on speech
(i.e. licensing and Milton) here he says no and that is the end of the debate
e. What did these defendants do?
i. They conspired to send out documents, they did not actually send them out

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ii. It said do not submit to intimidation, assert your rights, and it quoted the
13th Amendment which is opposed to slavery, anti capitalist rhetoric
iii. They conspired to circulate this to men who had been drafted
iv. Is there any evidence that the draft was obstructed?
1. No.
v. Does it matter to Holmes whether the activities the defendants were engaged
in had these effects?
1. “success alone” it does not matter
vi. The most famous metaphor in con law
1. falsely shouting fire in a theatre
2. how would Black respond? He is an absolutist
a. he could argue this is more like conduct than speech, if it is
not conduct it is protected speech
vii. How would you respond—we have a pamphlet they are conspiring to
distribute—argue they cannot be prosecuted under this
1. they never distributed the pamphlet
2. yelling fire—that can cause panic and death
3. talk about how does this metaphor really work here, “falsely
shouting fire”
a. falsely shows they knew there was not a fire
b. this is a truth, this has an immediate effect, there is no harm
in this case—Holme says makes no difference whether there
was actual harm
viii. How does shouting fire work here v. distributing pamphlets
1. no political content with shouting fire
2. here defendants contribute to political debate
ix. The clear and present danger test
1. Clear: degree of probability attached to this danger
a. no probability then no danger
b. why does it have to be clear?

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i. The government does not like the speech, there is no

danger or harm, they are going after the ideas
c. How probable does this danger have to be?
i. How clear does it need to be?
ii. Feels like not a lot
2. Present: it means eminent, immediate, now
a. it has to be probable that it will occur now as opposed to
some future date
b. why add a presentness test?
i. The people or government could come to a different
belief—the politics could include other people
hearing what they are saying and the people could
respond differently
ii. There is an opportunity for counter speech
iii. If the danger happens now—we know about it
3. Danger: stop production, conscription, recruitment, enlistment, we
need soldiers and ammunition
III. After Schneck—do the clear and present danger variable move up and down?
a. i.e. if very serious danger it does not have to be as clear or as present or if it is a
smaller danger does it need to be clearer and more immediate
b. In Schneck Holmes does say there is less protection for speech when the country is
at war
c. Three hypothetical situations
i. For all hypotheticals: a group of Americans is held hostage in a foreign
country by the government or people acting for the government
1. A speaker X exhorts an angry crowd in front of the embassy in D.C.
to burn the embassy to the ground and they burn it to the ground
2. Y, gets up and specifically intending to have the crowd burn the
embassy, says “we must take revenge,” and the crowd hearing this
burns it to the ground. He wanted the crowd to do this.

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3. Z, intending to encourage the crowd to support economic sanctions,

“we must take revenge,” and the crowd burns it down
ii. Could X be prosecuted under the Schenck test?
1. Yes
2. It is clear there is a high degree of probability
3. It is present—the crowd is there
4. It is a serious danger
iii. Could Y be prosecuted under the Schenck test?
1. Yes
2. This is Schenck in a sense—very similar to defendants here
3. Seems to be a clear enough danger
4. He specifically intends that it happen
5. It is present
iv. Could Z be prosecuted under the Schenck test?
1. Yes
2. Z does not intend it, but the crowd takes it that way
3. Same words are said as Y
4. Same degree of danger and probability
d. In general
i. Schneck case is brought to you on the Supreme Court—do you affirm the
convictions?
1. No
a. Danger is not likely
b. No express incitement
c. Charges were conspiracy
d. No evidence of this being a danger
2. Yes
a. Government can act before there is success
IV. Frohwerk v. United States
a. We have pro-German sympathizers who published articles in a newspapers—
critical of the war and of the draft

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b. Given the result in Schenck can we say their FA should be protected?

i. Publishing the newspaper—not a targeted audience
ii. No clear or present danger—no immediacy here they are just critical of the
war and of the draft—not circulating it to draftsmen—not direct incitement
iii. It was a small German language newspaper in Missouri
c. What is the test in this case?
i. “On this record…where a little breath would be enough to kindle a flame”
ii. kindle a flame test
iii. there is a very forgiving evidentiary standard
iv. all three hypotheticals would clearly be yes under the kindle a flame test
V. Debs v. United States
a. He suggests people who oppose the war are correct
b. He is charged for violating the Espionage Act
c. Evidence:
i. Evidence that he believed it himself shows he wanted other people to
believe it
d. The test:
i. Intent plus probable effect
ii. We can call it the bad tendency test
iii. If words intend to cause a bad reaction
iv. It is the tendency and the specific intent to bring about an obstruction
v. Under the three hypotheticals under this test:
1. X—yes
2. Y—yes, they have intent
3. Z—might actually be able to escape because he doesn’t have the
intent
VI. Under the approach of Schenck, Frowerk, Debs, is any criticism of the war constitutionally
protected?
a. In opposing the war it is less likely that other people will enlist
i. It has a bad tendency, it could kindle the flame, it is clear and present
b. Given how forgiving these tests are—to the government?

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VII. Abrams v. United States

a. Leftists sympathetic to Russia and angry at presence of American troops on Russian
soil—they distributed leaflets in NY advocating a general strike and urging workers
to stop producing weapons
b. The test: men must be held to have intended and to be accountable for, the effects
which their acts were likely to produce
i. Forgiving to the government, comes out of Debs
c. Conditions relevant to whether they could have their convictions upheld
i. They are in NY asking people to stop producing ammunition, this was a
major center for war production and you are urging a strike right where it is
happening
ii. Majority opinion is not a surprise
VIII. Overview
a. Espionage Act was aimed at opposition to war
b. In Schenck and Frohwerk
i. All hypotheticals would be convicted
c. In Debs
i. X and Y would be convicted, Z cannot be convicted—Holmes talks about
intent
Class 4
 Abrams Case, Pg. 961-79 and Article
Notes
I. What is the Holmes test in the Abrams case?
a. Speech can produce or is intended to produce
b. Speech can produce a clear and imminent danger
c. Or speech can produce a clear and imminent danger
d. This is a version of the clear and present danger test
e. Compared to the other cases
f. The most dangerous of the cases:
i. Schneck—13th amendment
ii. Frohwerk: middle of Missouri

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iii. Debs: socialist convention

g. Arguing for producing a clear and imminent danger
i. We are in New York a lot of people will see this, this is the hub of
activity
ii. Against: this is a silly leaflet
h. Arguing for intending to produce clear and imminent danger
i. The leaflet says stop producing, lets have a general strike—they
intended to stop war production
ii. Under the Holmes test is is an “or” not an “and”
iii. It is not their intent to stop the war against Germany—they are trying to
stop ammunition getting to Russia
1. This is important because they intend to stop war production, but
the aim is not to stop production to Germany
2. It is to hinder the war with Russia
3. They do not have the specific intent to obstruct the production
of weapons for the war in which the Espionage Act was designed
in mind with
4. Holmes says there is a difference between their intent and their
aim
5. Holmes mixes up intent and motive
a. Under the Espionage Act do you need to have intent and
motive?
b. The EA does not say anything about motive directly so
Holmes reads the statute in a way that is consistent with
the test he made
i. The sentences
i. Twenty years for passing out leaflets
ii. We are punishing them for being Communist
iii. 20 years—looks like we are in the middle of hysteria and panic—it is
about Communism and their beliefs—it is going after something more
than the harm they are going after the ideology

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II. Final Paragraph of the Abrams Case

a. Why under Holmes theory do we protect freedom of speech?
i. The free marketplace of ideas—we allow everyone to be heard
1. What is the objective of the marketplace?
a. Truth. Political truth for Holmes—which sounds like
Milton
b. Is there an echo of Mill?
i. Life is an experiment and there is imperfect
knowledge
ii. There is a lot of doubt about our premises
ii. Time has upset many fighting faiths means:
1. We can rely on anything we believe today because it has gone
through testing
2. If what we have is remaining—it has survived the competition
of the market
iii. Correction of evil councils to time means:
1. Evil council: wrong beliefs
2. The correction—we can leave correction of ideas to time—they
will fall out because they are bad—and the market will correct
them
3. The correction will not happen through government action—but
by the counter speech
4. Counter speech is the way to deal with bad ideas
iv. Do people have the right to obstruct recruitment according to Holmes?
1. Can government punish them?
2. If you actually obstruct you can be punished
3. What about speech, can that be punished?
a. He is not talking about conduct, only expression of
speech
III. Under the Abrams test that Holmes gives us:

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a. Test: produce clear/imminent threat OR intend to produce a clear/imminent

danger
b. The hypotheticals
i. Could X be convicted?
1. Yes
2. There is intent
3. Argue he intends to produce
ii. Could Y be convicted?
1. Yes
2. He is producing
3. Intent is harder
a. It could be argued there is intent since the crowd already
has the torches lit
iii. Could Z be convicted?
1. Same analysis as above
2. Most speech protective test—likely produces affirmations of
convictions
IV. Gitlow v. New York
a. These cases are prosecuted in peacetime
b. New York adopted law forbidding violent overthrow of government
c. Defendant published a manifesto that wanted a mass action to destroy the
representative parliamentary state
i. This is a state prosecution, not a federal prosecution
ii. We have in this case for the first time, the application of the first
amendment to the states
d. the court had begun a process of saying there are certain fundamental rights
protected by the 14th amendment—applies to state and federal government
e. taking the Schenck decision—argue for a reversal on Gitlow
i. is there a call to action?
1. The time is indefinite

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2. There is no evidence that there is a danger—no evidence that

anything has happened
3. No presidential candidate making statements, no pamphlets to
fighting aged men, there is nothing like that
4. Nothing like the clear and present danger
5. Schenck test is most forgiving test so far—clear and present
f. Has the court rejected the clear and present danger test?
i. Defendants argued the clear and present danger test
ii. Why is this different from Schenck?
1. Legislature is in a better position to make decision argument
a. They can weigh all the circumstances, interview, etc.
2. But why wasn’t that the case in Schenck?
a. The statute in Schenck was more vague—the statute was
directed toward obstruction nothing in the statute talked
about speech
b. This statute on the other hand targets speech
g. Why would we adopt a lower standard with this statute since it deals with
speech?
i. We as a legislature have made a determination that this speech is
dangerous—this is a specific determination about speech and it is
entitled to great weight
ii. Scenario: you build a campfire
1. Gitlow—do not build campfires
2. Schenck—do not make an unreasonable risk of starting a fire
iii. The government has already done the weighing and that is what gets
deference
iv. Is that deference appropriated
1. Legislature can be in a better position to make the laws
h. The first amendment is supposed to make the government better
i. Make it more substantive, better, organized

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ii. This speech is an incitement is to do something that is antithetical to the

FA itself you could say
i. How does Holmes respond to this?
i. Every idea is an incitement
ii. Eloquence may set fire to reason
j. Even advocacy of overthrow of the government has some value argument:
i. Even radical ideas have a role
ii. Chilling the speech argument—when you punish people for advocacy
of the revolution—people on the line of advocacy will be reduced to
more moderate views because they are afraid of the line and want to stay
clear of it
iii. Maybe the speech has some intrinsic value
iv. Even if it doesn’t we have to protect it in order to protect enough
speech—sometime you have to protect the wrong speech to protect the
right speech or the chilling speech effect can come into place
k. Taking the Gitlow decision—how would they decide a case involving a statute
state law that was applied to prosecute a teacher who taught her poly sci class
that there might be times when revolution was morally acceptable?
i. Bottom of pg. 962
V. Whitney v. California
a. In the Whitney decision—pay attention to concurrence by Justice Brandeis
i. Especially paragraph—furst full paragraph on 968—those who one our
independence
Class 5
No new reading—make sure you can discuss Arrowsmith in terms of the cases we have read

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