freedom of expression protected speech

7/27/2019 Freedom of Expression Protected Speech

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consti part 7: freedom of expression

consti 2 all stars 1

ART III. sec 4. No law shall be passed abridging the freedomof speech, of expression, or of the press, or the right of thepeople peaceably to assemble and petition the government forredress of grievances.

A. PROTECTED SPEECH

PRIOR RESTRAINT

Near v Minnesota (06/01/31)Hughes, C.J.

Facts: A Minnesota statute (Chap285, Session Laws 1925)provides for the abatement, as a public nuisance, of a"malicious, scandalous & defamatory newspaper, [702]magazine or other periodical. Participation in such businessshall constitute a commission of such nuisance and render theparticipant liable & subject to the proceedings, orders &judgments provided for in the Act. Ownership, in whole or inpart, directly or indirectly, of any such periodical, or of any

stock or interest in any corporation or organization which ownsthe same in whole or in part, or which publishes the same,shall constitute such participation. In actions brought underabove, there shall be available the defense that the truth waspublished with good motives & for justifiable ends & in suchactions the plaintiff shall not have the right to report to issuesor editions of periodicals taking place more than three monthsbefore the commencement of the action. The statute alsoprovides that the County Atty, or any citizen of the county, maymaintain an action in the district court of the county in thename of the State to enjoin perpetually the persons committingor maintaining any such nuisance from further committing ormaintaining it. It was under this statue that the County Atty filedan action against Near (herein petitioner) for allegedlypublishing & circulating a periodical that charged public & law

enforcement officials, including the Mayor of Minneapolis, ofinefficiency, gross neglect of duty & graft for failing to quell thecity''s gangster problem. The articles made seriousaccusations against the public officers named & others inconnection with the prevalence of crimes & the failure toexpose & punish them. The District Court made findings offact which followed the allegations of the complaint &found that the editions in question were "chiefly devotedto malicious, scandalous & defamatory articles"concerning the individuals named. The court further foundthat the defendants, through these publications, "did engagein the business of regularly & customarily producing,publishing & circulating a malicious, scandalous &defamatory newspaper," & that "the said publication""under said name of The Saturday Press, or any other

name, constitutes a public nuisance under the laws of theState." Judgment was thereupon entered adjudging that "thenewspaper, magazine & periodical known as The SaturdayPress," as a public nuisance, "is hereby abated. Near appealedto State supreme court, which upheld the decision. Near nowappeals to the US SC.

Petitioner (Near):

- statute violates the due process clause of the 14thAmendment as it deprives him of liberty (his right to freespeech & liberty of the press) & property (his publication)

- District Court decision violates the due process clause of the

14th Amendment as it deprives him of any future livelihood(appellant sees the decision as a bar against his establishingany further business involving publication)

Defendants:

-insists that the questions of the application of the statute toappellant's periodical, & of the construction of the judgment ofthe trial court, are not presented for review; that appellant's

sole attack was upon the constitutionality of the statutehowever it might be applied

- that no question either of motive in the publication, or whetherthe decree goes beyond the direction of the statute, is beforethe court

-the statute deals not with publication per se, but with the"business" of publishing defamation.

-the constitutional freedom from previous restraint is losbecause charges are made of derelictions which constitutecrimes.

- the publisher is is permitted to show, before injunction issuesthat the matter published is true & is published with goodmotives & for justifiable ends

-the statute is designed to prevent the circulation of scandawhich tends to disturb the public peace & to provoke assaults& the commission of crime

Issues:

1. w/n the statute is unconstitutional for being violative of thedue process clause

Held: YES

To start, the SC notes that the liberty of the press is underthe ambit of "liberty" which is guaranteed by the 14thAmendment. Gitlaw v NY, Whitney v California. Inmaintaining this guarantee, the State has the power to enaclaws to promote the safety, health,morals & general welfare of

the people, but this power is to be determined with appropriateregard to the particular subject of its exercise. Liberty ospeech, & of the press, is also not an absolute right, & theState may punish its abuse. Whitney v. California. In thepresent instance, the inquiry is as to the historic conception othe liberty of the press & whether the statute under reviewviolates the essential attributes of that liberty.

In passing upon constitutional questions, the court has regardto substance, & not to mere matters of form, & that, inaccordance with familiar principles, the statute must be testedby its operation & effect. Henderson v. Mayor. 1s tThe statuteis not aimed at the redress of individual or private wrongsRemedies for libel remain available & unaffected. The statutesaid the state court, "is not directed at threatened libel, but a

an existing business which, generally speaking, involves morethan libel." It is alleged, & the statute requires the allegationthat the publication was "malicious." But, as in prosecutions folibel, there is no requirement of proof by the State of malice infact, as distinguished from malice inferred from the merepublication of the defamatory matter. The judgment in this caseproceeded upon the mere proof of publication. It is apparenthat under the statute the publication is to be regarded asdefamatory if it injures reputation, & scandalous if itcirculates charges of reprehensible conduct, whethecriminal or otherwise, & the publication is thus deemed toinvite public reprobation & to constitute a public scandal.

NEAR vs. MINESOTA


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2ndThe statute is directed not simply at the circulation ofscandalous & defamatory statements with regard to privatecitizens, but at the continued publication by newspapers &periodicals of charges against public officers of corruption,malfeasance in office, or serious neglect of duty.

3rd The object of the statute is not punishment but

suppression of the offending newspaper or periodical. Thereason for the enactment is that prosecutions to enforce penalstatutes for libel do not result in "efficient repression orsuppression of the evils of scandal." Under this statute, apublisher of a newspaper or periodical, undertaking to conducta campaign to expose & to censure official derelictions, &devoting his publication principally to that purpose, must facenot simply the possibility of a verdict against him in a suit orprosecution for libel, but a determination that his newspaper orperiodical is a public nuisance to be abated, & that thisabatement & suppression will follow unless he is prepared withlegal evidence to prove the truth of the charges & also tosatisfy the court that, in addition to being true, the matter waspublished with good motives & for justifiable ends.

4th. The statute not only operates to suppress the offendingnewspaper or periodical, but to put the publisher under aneffective censorship. Cutting through mere details ofprocedure, the operation & effect of the statute is that publicauthorities may

1) bring the owner or publisher of a newspaper orperiodical before a judge upon a charge ofconducting a business of publishing scandalous& defamatory matter -- in particular, that thematter consists of charges against public officersof official dereliction

2) unless the owner or publisher is able & disposedto bring competent evidence to satisfy the judgethat the charges are true & are published withgood motives & for justifiable ends, hisnewspaper or periodical is suppressed & furtherpublication is made punishable as a contempt.This is of the essence of censorship.

The question is whether a statute authorizing suchproceedings in restraint of publication is consistent with theconception of the liberty of the press as historically conceived& guaranteed. In determining the extent of the constitutionalprotection, it has been generally if not universally, consideredthat it is the chief purpose of the guaranty to preventprevious restraints upon publication. This Court said, in

Patterson v. Colorado, "the main purpose of such constitutionalprovisions is "to prevent all such previous restraints "uponpublications as had been practiced by other governments," &they do not prevent the subsequent "punishment of such asmay be deemed contrary to the public welfare. For whateverwrong the appellant has committed or may commit by hispublications the State "appropriately affords both public &private redress by its libel laws. As has been noted, thestatute in question "does not deal with punishments; it providesfor no punishment, except in case of contempt for violation ofthe "court's order, but for suppression & injunction, that is, forrestraint upon publication.

The protection even as to "previous restraint is not absolutelyunlimited. But the limitation has been recognized only inexceptional cases: "When a nation is at war, many things thamight be said in time of peace are such a hindrance to its efforthat their "utterance will not be endured so long as men fight, &that no Court could regard them as protected by any"constitutional right." Schenck v. United States Theselimitations are not applicable here. Nor are we now concerned

with "questions as to the extent of authority to preventpublications in order to protect private rights according to the"principles governing the exercise of the jurisdiction of courts ofequity. The fact that, for approximately one hundred & fiftyyears, there has been almost an entire absence ofattempts to impose previous restraints upon publicationsrelating to the malfeasance of public officers is significantof the deep-seated conviction that such restraints wouldviolate constitutional right. Public officers, whose characte& conduct remain open to debate & free discussion in thepress, find their remedies for false accusations in actions underlibel laws providing for redress & punishment, & not inproceedings to restrain the publication of newspapers &periodicals.

re: defendant's contention that the statute deals not withpublication per se, but with the "business" of publishingdefamation: If the publisher has a constitutional right to publishwithout previous restraint, an edition of his newspaper chargingofficial derelictions, it cannot be denied that he may publishsubsequent editions for the same purpose.

re: the constitutional freedom from previous restraint is losbecause charges are made of derelictions which constitutecrimes: The freedom of the press from previous restraint hasnever been regarded as limited to such animadversions as layoutside the range of penal enactments. It is inconsistent withthe reason which underlies the privilege, as the privilege solimited would be of slight value for the purposes for which icame to be established

re:is permitted to show, before injunction issues, that thematter published is true & is published with good motives & forjustifiable ends: If such a statute, authorizing suppression &injunction on such a basis, is constitutionally valid, it would beequally permissible for the legislature to provide that at anytime the publisher of any newspaper could be brought before acourt & required to produce proof of the truth of his publication,or of what he intended to publish, & of his motives, or standenjoined. If this can be done, the legislature may providemachinery for determining in the complete exercise of itsdiscretion what are justifiable ends, & restrain publicationaccordingly. It would be but a step to a complete system ofcensorship.

re:the statute is designed to prevent the circulation of scanda

which tends to disturb the public peace & to provoke assaults& the commission of crime: Charges of reprehensible conduct& in particular of official malfeasance, unquestionably create apublic scandal, but the theory of the constitutional guarantyis that even a more serious public evil would be caused byauthority to prevent publication. As was said in New YorkeStaats-Zeitung v. Nolan,"If the township may prevent thecirculation of a newspaper for no reason other than that someof its inhabitants may violently disagree with it, & resent itscirculation by resorting to physical violence, there is no limit towhat may be prohibited." The danger of violent reactionsbecomes greater with effective organization of defiant groupsresenting exposure, & if this consideration warranted legislative


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interference with the initial freedom of publication, theconstitutional protection would be reduced to a mere form ofwords.

Judgment reversed. Statute declared uncon st i tut ional

403 U.S. 713 (1971)

Voting: 5-4

Brief Fact Summary. The Supreme Court of theUnited States (Supreme Court) held that theGovernment failed to meet the requisite burden ofproof needed to justify a prior restraint of expressionwhen attempting to enjoin the New York Times andWashington Post from publishing contents of aclassified study.

Synopsis of Rule of Law. Any system of priorrestraints on expression comes to the Supreme Courtbearing a heavy presumption against its constitutionalvalidity. The Government thus creates a heavyburden of showing justification for the enforcement ofsuch a restraint.

FACTS:

The US sought to prevent publication of a classified studyentitled History of US Decision Making Process on VietnamPolicy.

In what became known as the "Pentagon Papers Case," theNixon Administration attempted to prevent the New York Timesand Washington Post from publishing materials belonging to aclassified Defense Department study regarding the history ofUnited States activities in Vietnam. The President argued thatprior restraint was necessary to protect national security. Thiscase was decided together with United States v. WashingtonPost Co.

ISSUE:Did the Nixon administration's efforts to prevent the publicationof what it termed "classified information" violate the FirstAmendment? YES

RATIO:

In its per curiam opinion the Court held that the government didnot overcome the "heavy presumption against" prior restraint ofthe press in this case. Justices Black and Douglas argued thatthe vague word "security" should not be used "to abrogate thefundamental law embodied in the First Amendment." JusticeBrennan reasoned that since publication would not cause aninevitable, direct, and immediate event imperiling the safety ofAmerican forces, prior restraint was unjustified.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLASjoins, concurring.

Madison proposed the First Amendment in three parts, one ofwhich proclaimed: "The people shall not be deprived oabridged of their right to speak, to write, or to publish theisentiments; and the freedom of the press, as one of the greabulwarks of liberty, shall be inviolable." The amendments were

offered to curtail and restrict the general powers granted to thebranches of govt. The Bill of Rights changed the originaConstitution into a new charter under which no branch ogovernment could abridge the people's freedoms of pressspeech, religion, and assembly.

Solicitor General argues that the general powers of the Govadopted in the original Constitution should be interpreted tolimit and restrict the guarantees of the Bill of Rights. Both thehistory and language of the First Amendment support the viewthat the press must be left free to publish news, whatever thesource, without censorship, injunctions, or prior restraints.

First Amendment gave the free press the protection it mushave to fulfill its role in our democracy. The press was to servethe governed, not the governors. The governments power tocensor the press was abolished so that the press wouldremain forever free to censure the government. Only a freeand unrestrained press can effectively expose deception ingovt. In revealing the workings of government that led to theVietnam War, the newspapers nobly did precisely that whichthe Founders hoped and trusted they would do.

The Solicitor General stated:

" `no law' does not mean `no law', and I would seek topersuade the Court that is true. . . . [T]here are other parts ofthe Constitution that grant powers and responsibilities to theExecutive, and . . . the First Amendment was not intended to

make it impossible for the Executive to function or to protectthe security of the United States."

And the Government argues that in spite of the FirsAmendment, "[t]he authority of the Exec Dept to protect thenation against publication of information whose disclosurewould endanger the national security stems from twointerrelated sources: the constitutional power of the Presidenover the conduct of foreign affairs and his authority asCommander-in-Chief." (court being asked to impose priorestraint in the name of presidential power and nationasecurity)

To find that the President has "inherent power" to halt thepublication of news by resort to the courts would wipe out the

First Amendment and destroy the fundamental liberty andsecurity of the very people the Govt hopes to make "secure."

The guarding of military and diplomatic secrets at the expenseof informed representative government provides no reasecurity for our Republic. The Framers of the FirsAmendment, fully aware of both the need to defend a newnation and the abuses of the English and Coloniagovernments, sought to give this new society strength andsecurity by providing that freedom of speech, press, religionand assembly should not be abridged.

NEW YORK TIMES vs. US


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MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACKjoins, concurring.

There is no statute which bars the publication by the press ofthe material which the Times and the Post seek to use.

Title 18 U.S.C. 793 (e) provides that "[w]hoever havingunauthorized possession of, access to, or control over any

document, writing . . . or information relating to the nationaldefense which information the possessor has reason to believecould be used to the injury of the United States or to theadvantage of any foreign nation, willfully communicates . . . thesame to any person not entitled to receive it . . . [s]hall be finednot more than $10,000 or imprisoned not more than ten years,or both."

The Government suggests that the word "communicates" isbroad enough to encompass publication. There are eightsections in the chapter on espionage and censorship, 792-799.In three of those eight "publish" is specifically mentioned:

794 (b) applies to "Whoever, in time of war, with intent that thesame shall be communicated to the enemy, collects, records,publishes, or communicates . . . [the disposition of armedforces]."

Section 797 applies to whoever "reproduces, publishes, sells,or gives away" photographs of defense installations.

Section 798 relating to cryptography applies to whoever:"communicates, furnishes, transmits, or otherwise makesavailable . . . or publishes" the described material. 2 (Emphasisadded.)

Thus it is apparent that Congress was capable of and diddistinguish between publishing and communication in thevarious sections of the Espionage Act.

The other evidence that 793 does not apply to the press is arejected version of 793 which read: "During any nationalemergency resulting from a war to which the United States is aparty, or from threat of such a war, the President may, byproclamation, declare the existence of such emergency and,by proclamation, prohibit the publishing or communicating of,or the attempting to publish or communicate any informationrelating to the national defense which, in his judgment, is ofsuch character that it is or might be useful to the enemy.".During the debates in the Senate the First Amendment wasspecifically cited and that provision was defeated.The Act of September 23, 1950, in amending 18 U.S.C. 793states in 1 (b) that: "Nothing in this Act shall be construed toauthorize, require, or establish military or civilian censorship or

in any way to limit or infringe upon freedom of the press or ofspeech as guaranteed by the Constitution of the United Statesand no regulation shall be promulgated hereunder having thateffect."

So any power that the Government possesses must come fromits "inherent power."

The power to wage war stems from a declaration of war. TheConstitution gives Congress power to declare War. Nowhereare presidential wars authorized.

These disclosures 3 may have a serious impact. But that is nobasis for sanctioning a previous restraint on the press. Asstated by Chief Justice Hughes in Near v. Minnesota: "Thefact that the liberty of the press may be abused bymiscreant purveyors of scandal does not make any theless necessary the immunity of the press from previousrestraint in dealing with official misconduct."

Secrecy in government is fundamentally anti-democraticperpetuating bureaucratic errors. Open debate and discussionof public issues are vital to our national health. On publicquestions there should be "uninhibited, robust, and wide-open"debate.

MR. JUSTICE BRENNAN, concurring.The First Amendment tolerates absolutely no prior judiciarestraints of the press predicated upon surmise or conjecturethat untoward consequences may result.

There is a single, extremely narrow class of cases in which theFirst Amendment's ban on prior judicial restraint may beoverridden. Such cases may arise only when the Nation is awar, during which times no one would question but that a govtmight prevent actual obstruction to its recruiting service or thepublication of the sailing dates of transports or the number andlocation of troops. In neither of these actions has the Govpresented or even alleged that publication of items based uponthe material at issue would cause the happening of an event ofthat nature. Only govtal allegation and proof that publicationmust inevitably, directly, and immediately cause theoccurrence of an event kindred to imperiling the safety of atransport already at sea can support even the issuance of aninterim restraining order.

MR. JUSTICE STEWART, with whom MR. JUSTICE WHITEjoins, concurring.

The Executive is endowed with power in the two related areasof natl defense and intl relations.

In the absence of the governmental checks and balancespresent in other areas of our national life, the only effectiverestraint upon executive policy and power may lie in aninformed and critical public opinion which alone can hereprotect the values of democratic government.

The successful conduct of intl diplomacy and the maintenanceof an effective natl defense requires both confidentiality.

The responsibility must be where the power is. If theConstitution gives the Executive a large degree of unsharedpower in the conduct of foreign affairs and the maintenance o

our national defense, then under the Constitution the Executivemust have the largely unshared duty to determine andpreserve the degree of internal security necessary to exercisethat power successfully. Moral, political, and practicaconsiderations would dictate that a very first principle would bean insistence upon avoiding secrecy for its own sake. Forwhen everything is classified, then nothing is classified, andthe system becomes one to be disregarded by the cynical othe careless, and to be manipulated by those intent on self-protection or self-promotion. A truly effective internal securitysystem would be the maximum possible disclosurerecognizing that secrecy can best be preserved only whencredibility is truly maintained. But be that as it may, it is clear to


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me that it is the constitutional duty of the Executive is to protectthe confidentiality necessary to carry out its responsibilities inthe fields of intl relations and natl defense.

I cannot say that disclosure of any of them will surelyresult in direct, immediate, and irreparable damage to ourNation or its people. That being so, there can be but onejudicial resolution of the issues before us.

MR. JUSTICE WHITE, with whom MR. JUSTICE STEWARTjoins, concurring.

United States has not satisfied the very heavy burden that itmust meet to warrant an injunction against publication in thesecases, at least in the absence of express and appropriatelylimited congressional authorization for prior restraints incircumstances such as these.]

In the absence of legislation by Congress, based on its owninvestigations and findings, I am quite unable to agree that theinherent powers of the Executive and the courts reach so faras to inhibit publications by the press. Much of the difficultyinheres in the "grave and irreparable danger" standardsuggested by the US.

In Gorin v. United States, 312 U.S. 19, 28 (1941), the words"national defense" as used in a predecessor of 793 were heldby a unanimous Court to have "a well understood connotation"- a "generic concept of broad connotations, referring to themilitary and naval establishments and the related activities ofnational preparedness" - and to be "sufficiently definite toapprise the public of prohibited activities" and to be consonantwith due process. Also, as construed by the Court in Gorin,information "connected with the national defense" is obviouslynot limited to that threatening "grave and irreparable" injury tothe United States.

It has apparently been satisfied to rely on criminal sanctionsand their deterrent effect on the responsible as well as theirresponsible press. I am not, of course, saying that either ofthese newspapers has yet committed a crime or that eitherwould commit a crime if it published all the material now in itspossession. That matter must await resolution in the context ofa criminal proceeding if one is instituted by the United States.In that event, the issue of guilt or innocence would bedetermined by procedures and standards quite different fromthose that have purported to govern these injunctiveproceedings.

MR. JUSTICE MARSHALL, concurring.

It would, however, be utterly inconsistent with the concept ofseparation of powers for this Court to use its power ofcontempt to prevent behavior that Congress has specificallydeclined to prohibit. There would be a similar damage to thebasic concept of these co-equal branches of Government ifwhen the Executive Branch has adequate authority granted byCongress to protect "national security" it can choose instead toinvoke the contempt power of a court to enjoin the threatenedconduct. The Constitution provides that Congress shall makelaws, the President execute laws, and courts interpret laws. Itdid not provide for government by injunction in which the courtsand the Executive Branch can "make law" without regard to theaction of Congress.

Congress has on several occasions given extensiveconsideration to the problem of protecting the military andstrategic secrets of the United States. This consideration hasresulted in the enactment of statutes making it a crime toreceive, disclose, communicate, withhold, and publish certaindocuments, photographs, instruments, appliances, andinformation. The bulk of these statutes is found in chapter 37 of

U.S.C., Title 18, entitled Espionage and Censorship.

There has been no attempt to make such a showing. TheSolicitor General does not even mention in his brief whethethe Government considers that there is probable cause tobelieve a crime has been committed or whether there is aconspiracy to commit future crimes.

If the Government had attempted to show that there was noeffective remedy under traditional criminal law, it would havehad to show that there is no arguably applicable statute.

Even if it is determined that the Government could not in goodfaith bring criminal prosecutions against the New York Timesand the Washington Post, it is clear that Congress hasspecifically rejected passing legislation that would have clearlygiven the President the power he seeks here and made thecurrent activity of the newspapers unlawful.

On at least two occasions Congress has refused to enaclegislation that would have made the conduct engaged in hereunlawful and given the President the power that he seeks inthis case. In 1917 during the debate over the originaEspionage Act, still the basic provisions of 793, Congressrejected a proposal to give the President in time of war orthreat of war authority to directly prohibit by proclamation thepublication of information relating to national defense thamight be useful to the enemy.

MR. CHIEF JUSTICE BURGER, dissenting.

These cases are not simple for another and more immediatereason. We do not know the facts of the cases. No DistricJudge knew all the facts. No Court of Appeals judge knew althe facts. No member of this Court knows all the facts.

The haste is due in large part to the manner in which the Timesproceeded from the date it obtained the documents. It seemsreasonably clear now that the haste precluded reasonable anddeliberate judicial treatment of these cases and was nowarranted. The precipitate action of this Court aborting trialsnot yet completed is not the kind of judicial conduct that ought

to attend the disposition of a great issue.

It is not disputed that the Times has had unauthorizedpossession of the documents for three to four months, duringwhich it has had its expert analysts studying them, presumablydigesting them and preparing the material for publicationDuring all of this time, the Times, presumably in its capacity astrustee of the public's "right to know," has held up publicationfor purposes it considered proper and thus public knowledgewas delayed.

Would it have been unreasonable, since the newspaper couldanticipate the Government's objections to release of secre


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of such person, by two or more members of the Board, and thesame finally approved or disapproved promptly after such re-examination, with the right of appeal from the decision of the Boardto the Baltimore City Court of Baltimore City. There shall be a furtherright of appeal from the decision of the Baltimore City Court to theCourt of Appeals of Maryland, subject generally to the time and

manner provided fortaking appeal to the Court of Appeals."

State concedes that the picture does not violate the statutorystandards & would have received a license if properlysubmitted, but the appellant was still convicted of a violationof the statute

Appellants contention: statute in its entiretyunconstitutionally impaired freedom of expression.

ISSUE:1. WON the CA was correct in using the doctrine in Times Film

Corp. vs. Chicago as precedence in this case.2. WON the Maryland statute presents a danger of unduly

suppressing protected expression.3. WON the statute lacks sufficient safeguards thus resulting

to a delegation of excessive admin discretion on the part of

the Board of censors.

HELD & RATIO:1. No. The CA was misplaced in relying on the Times Film. Inthat case, the court upheld a requirement of submission ofmotion pictures in advance of exhibition. But the questiontendered for decision was "whether a prior restraint wasnecessarily unconstitutional under all circumstances." TheCourt quoted the statement from Near v. Minnesota that "theprotection even as to previous restraint is not absolutelyunlimited." Appellant presents a question quite distinct fromthat passed on in Times Film. He argues that it constitutes aninvalid prior restraint because, in the context of the remainderof the statute, it presents a danger of unduly suppressingprotected expression.

2. Yes. Appellant focuses particularly on the procedure foran initial decision by the censorship board, which, withoutany judicial participation, effectively bars exhibition of anydisapproved film, unless and until the exhibitorundertakes a time-consuming appeal to the Marylandcourts and succeeds in having the Board's decision reversed.Under the statute, the exhibitor is required to submit the film tothe Board for examination, but no time limit is imposed forcompletion of Board action. There is no statutory provision forjudicial participation in the procedure which bars a film, noreven assurance of prompt judicial review. His argument is that,because the apparatus operates in a statutory context in which

judicial review may be too little and too late, the Maryland

statute lacks sufficient safeguards for confining thecensor's action to judicially determined constitutionallimits, and therefore contains the same vice as a statutedelegating excessive administrative discretion.

Under the 14th Amendment, a State is not free to adoptwhatever procedures it pleases for dealing with obscenitywithout regard to the possible consequences forconstitutionally protected speech." The administration of acensorship system for motion pictures presents peculiardangers to constitutionally protected speech. Unlike aprosecution for obscenity, a censorship proceeding puts theinitial burden on the exhibitor or distributor. Because the

censor's business is to censor, there inheres the danger thathe may well be less responsive than a court to theconstitutionally protected interests in free expression. And if iis made unduly onerous, by reason of delay or otherwise, toseek judicial review, the censor's determination may in practicebe final.

Only a judicial determination in an adversary proceedingensures the necessary sensitivity to freedom of expressiononly a procedure requiring a judicial determination suffices toimpose a valid final restraint. The exhibitor must be assured bystatute or authoritative judicial construction that the censor willwithin a specified brief period, either issue a license or go tocourt to restrain showing the film. Any restraint imposed inadvance of a final judicial determination on the merits mustsimilarly be limited to preservation of the status quo for theshortest fixed period compatible with sound judicial resolution.

It is readily apparent that the Maryland procedural schemedoes not satisfy these criteria.First, once the censor disapproves the film, the exhibitor mus

assume the burden of instituting judicial proceedings and opersuading the courts that the film is protected expression.

Second, once the Board has acted against a film, exhibition isprohibited pending judicial review, however protracted. Undethe statute, appellant could have been convicted if he hadshown the film after unsuccessfully seeking a license, eventhough no court had ever ruled on the obscenity of the film.

Third, it is abundantly clear that the Maryland statute providesno assurance of prompt judicial determination. We holdtherefore, that appellant's conviction must be reversed. TheMaryland scheme fails to provide adequate safeguards againsundue inhibition of protected expression, and this renders the 2 requirement of prior submission of films to the Board an

invalid previous restraint.

3. YES. Marylands scheme fails to provide adequatesafeguards against undue inhibition of protected expressionthus rendering the requirement of prior submission of films tothe Board an invalid previous restraint.

How can prior submission of films avoid infirmity?1. The burden of proving that the film is unprotectedexpression must rest on the censor. Due process requiresthat the State bear the burden of persuasion to show that theappellants engaged in criminal speech."

2. While the State may require advance submission of alfilms, in order to proceed effectively to bar all showings ofunprotected films, the requirement cannot be administered ina manner which would lend an effect of finality to thecensor's determination whether a film constitutes protectedexpression.

Without these safeguards, it may prove too burdensome toseek review of the censor's determination. Particularly in thecase of motion pictures, it may take very little to deterexhibition in a given locality. The exhibitor's stake in any onepicture may be insufficient to warrant a protracted and onerous


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course of litigation. The distributor, on the other hand, may beequally unwilling to accept the burdens and delays of litigationin a particular area when, without such difficulties, he canfreely exhibit his film in most of the rest of the country; for weare told that only four States and a handful of municipalitieshave active censorship laws.

What they can do:

In Kingsley Books, Inc. v. Brown, the court upheld a New Yorkinjunctive procedure designed to prevent the sale of obscenebooks. That procedure postpones any restraint against saleuntil a judicial determination of obscenity following notice andan adversary hearing. The statute provides for a hearing oneday after joinder of issue; the judge must hand down hisdecision within two days after termination of the hearing.

In the film industry: allow the exhibitor or distributor to submithis film early enough to ensure an orderly final disposition ofthe case before the scheduled exhibition date - far enough inadvance so that the exhibitor could safely advertise theopening on a normal basis. Failing such a scheme orsufficiently early submission under such a scheme, the statutewould have to require adjudication considerably more promptthan has been the case under the Maryland statute.

SUBSEQUENT PUNISHMNENT

MALCOLM, J

FACTS:

Isaac Perez, the municipal secretary of Pilar, Sorsogon, andFortunato Lodovice, a citizen of that municipality, meet on themorning of April 1, 1922, in the presidencia of Pilar, andbecame engaged in a discussion regarding the administrationof Governor-General Wood, which resulted in Perez shouting anumber of times: "The Filipinos, like myself, should get abolo and cut off the head of Governor-General Wood,because he has recommended a bad administration inthese Islands and has not made a good recommendation;on the contrary, he has assassinated the independence ofthe Philippines and for this reason, we have not obtainedindependence and the head of that Governor-Generalmust be cut off." Charged in the Court of First Instance ofSorsogon with a violation of article 256. of the Penal Codehaving to do with contempt of ministers of the Crown or other

persons in authority, and convicted thereof, Perez hasappealed the case to this court.

ISSUE:1. WON article 256 of the Penal Code, the provision allegedlyviolated, is still enforceable2. WON the appellant committed libel

HOLDING:1. Yes2. No, however, he was guilty of a portion of treason andsedition. Trial court decision affirmed with modification

RATIO:Enforceability of Art. 256

The first error assigned by counsel for the appellant is to theeffect that article 256 of the Penal Code is no longer in force.

In the case of United States vs. Helbig, Mr. Helbig wasprosecuted under article 256, and though the case was

eventually sent back to the court of origin for a new trial, theappellate court by majority vote held as a question of lawthat article 256 is still in force.

It may therefore be taken as settled doctrine, that untiotherwise decided by higher authority, so much of article 256of the Penal Code as does not relate to ministers of theCrown or to writings coming under the Libel Law, existsand must be enforced. To which proposition, can properly beappended a corollary, namely: Seditious words, speechesor libels, constitute a violation of Act No. 292, the Treasonand Sedition Law, and to this extent, both the Penal Codeand the Libel Law are modified.

The Crime Committed

Accepting the above statements relative to thecontinuance and status of article 256 of the Penal Code, itis our opinion that the law infringed in this instance is nothis article but rather a portion of the Treason and SeditionLaw. In other words, as will later appear, we think that thewords of the accused did not so much tend to defameabuse, or insult, a person in authority, as they did to raisea disturbance in the community.

In criminal law, there are a variety of offenses which are nodirected primarily against individuals, but rather against theexistence of the State, the authority of the Government, or thegeneral public peace. The offenses created and defined in Ac

No. 292 are distinctly of this character. Among them is seditionwhich is the raising of commotions or disturbances 'in theState. Though the ultimate object of sedition is a violation ofthe public peace or at least such a course of measures asevidently engenders it, yet it does not aim at direct and openviolence against the laws, or the subversion of the Constitution

It is of course fundamentally true that the provisions of Act No292 must not be interpreted so as to abridge the freedom ospeech and the right of the people peaceably to assemble andpetition the Government for redress of grievances. Criticism ispermitted to penetrate even to the foundations oGovernment. Criticism, no matter how severe, on theExecutive, the Legislature, and the Judiciary, is within therange of liberty of speech, unless the intention and effect

be seditious. But when the intention and effect of the actis seditious, the constitutional guaranties of freedom ofspeech and press and of assembly and petition must yieldto punitive measures designed to maintain the prestige oconstituted authority, the supremacy of the constitutionand the laws, and the existence of the State.

Here, the person maligned by the accused is the ChieExecutive of the Philippine Islands. His official position seemsrather to invite abusive attacks. But in this instance, the attackon the Governor-General passes the furthest bounds of freespeech and common decency. More than a figure of speechwas intended. There is a seditious tendency in the words used

PEOPLE vs. PEREZ


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which could easily produce disaffection among the people anda state of feeling incompatible with a disposition to remain loyalto the Government and obedient to the laws. The Governor-General is the representative of executive civil authority in thePhilippines and of the sovereign power. A seditious attack onthe Governor-General is an attack on the rights of the Filipinopeople and on American sovereignty.

Section 8 of Act No. 292 of the Philippine Commission, asamended by Act No. 1692, appears to have been placed onthe statute books exactly to meet such a situation. This sectionreads as follows:

"Every person who shall utter seditious words or speeches, orwho shall write, publish or circulate scurrilous libels against theGovernment of the United States or against the Government ofthe Philippine Islands, or who shall print, write, publish, utter ormake any statement, or speech, ordo any act which tends todisturb or obstruct any lawful officer in executing hisoffice or in performing his duty, or which tends toinstigate others to cabal or meet together for unlawfulpurposes, or which suggests or incites rebelliousconspiracies or which tends to stir up the people againstthe lawful authorities, or which tends to disturb the peaceof the community or the safety or order of theGovernment, or who shall knowingly conceal such evilpractices from the constituted authorities, shall bepunished by a fine not exceeding two thousand dollars UnitedStates currency or by imprisonment not exceeding two years,or. both, in the discretion of the court."

In the words of the law, Perez has uttered seditious words. Hehas made a statement and done an act which tended toinstigate others to cabal or meet together for unlawfulpurposes. He has made a statement and done an act whichsuggested and incited rebellious conspiracies. He has made astatement and done an act which tended to stir up the people

against the lawful authorities. He has made a statement anddone an act which tended to disturb the peace of thecommunity and the safety or order of the Government.

While our own sense of humor is not entirely blunted, wenevertheless entertain the conviction that the courts should bethe first to stamp out the embers of insurrection. The fugitiveflame of disloyalty, lighted by an irresponsible individual, mustbe dealt with firmly before it endangers the general publicpeace.

VILLAMOR, J., with whom concurs AVANCEA, J.,concurring and dissenting:I agree in that the accused should be sentenced to suffer twomonths and one day of arresto mayor with costs, as imposed

by the court a quo, under the provisions of article 256 of thePenal Code, but not under section 8 of Act No. 292. Theaccused should not be convicted of the crime of seditionbecause there is no allegation in the complaint nor proof in therecord, showing that when the accused uttered the words thatgave rise to these proceedings, he had the intention of incitingothers to gather for an illicit purpose, or to incite anyconspiracy or rebellion, or to disturb the peace of thecommunity or the safety and order of the Government

(1951)

FACTS:

Eugene Dennis and others were convicted of conspiring toorganize the Communist Party of the United States as a group

to teach and advocate the overthrow of the Government of theUnited States by force and violence in violation of theconspiracy provisions of the Smith Act-- sec 2 and 3 of theSmith Act, 18 U.S.C.A.

The Smith Act (the Act) made it a criminal offense for a personto knowingly or willfully advocate the overthrowing of anygovernment in the United States by force or to attempt tocommit or conspire to commit the crime the same.

In this certiorari they assail the constitutionality of this said acalleging that it violates their freedom of speech and that it isvoid for indefiniteness/vagueness.

ISSUES:

1. WON sec 2 or 3 of the Smith Act inherently or as

construed and applied in the instant case, violates theFirst Amendment and other provisions of the Bill oRightsno.

2. WON either s 2 or s 3 of the Act, inherently or asconstrued and applied in the instant case, violates theFirst and Fifth Amendments because oindefiniteness. no

HELD:

Sections 2 and 3 of the Smith Act do not violate the 1s

amendment and other provisions of the Bill of Rights, or the 1s

and 4th amendments for indefiniteness. Petitioners intended tooverthrow the Government of the US as speedily as thecircumstances would permit. Conspiracy to organize the

Communist Party and to teach and advocate the overthrow othe government of the US by force and violence created aclear and present danger. Convictions affirmed.

RATIO:

1. Sections 2 and 3 of the Smith Act provide as follows:

Sec. 2.

(a) It shall be unlawful for any person--

(1) to knowingly or willfully advocate, abet, advise, or teachthe duty, necessity, desirability, or propriety ooverthrowing or destroying any government in the United

States by force or violence, or by the assassination of anyofficer of any such government;

(2) with intent to cause the overthrow or destruction of anygovernment in the United States, to print, publish, editissue, circulate, sell, distribute, or publicly display anywritten or printed matter advocating, advising, or teachingthe duty, necessity, desirability, or propriety ooverthrowing or destroying any government in the UnitedStates by force or violence;

(3) to organize or help to organize any society, group, orassembly of persons who teach, advocate, or encouragethe overthrow or destruction of any government in the

DENNIS vs. US


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United States by force or violence; or to be or become amember of, or affiliate **861 with, any such society, group,or assembly of persons, knowing the purposes thereof.

(b) For the purposes of this section, the term governmentin the United States means the Government of the UnitedStates, the government of any State, Territory, orpossession of the United States, the government of the

District of Columbia, or the *497 government of anypolitical subdivision of any of them.

Sec. 3. It shall be unlawful for any person to attempt tocommit, or to conspire to commit, any of the actsprohibited by the provisions of * * * this title.

The general goal of the communist party is to achievea successful overthrow of the existing order by forceand violence

Purpose of the statute: to protect the existinggovernment not from change by peaceable, lawfuland constitutional means, but from change byviolence, revolution and terrorism.

argument that there is a right to rebellion againstdictatorial governments is without force where theexisting structure of the government provides forpeaceful and orderly change.

Petitioners contend that the Act prohibitsacademic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to allconcepts of a free speech and a free press. Thecourt held that the language of the Smith Act isdirected at advocacy not discussion.

Congress did not intend to eradicate the freediscussion of political theories, to destroy thetraditional rights of Americans to discuss and evaluateideas without fear of governmental sanction. RatherCongress was concerned with the very kind of activityin which the evidence showed these petitionersengaged.

Re free speech: basis of the First Amendment is thehypothesis that speech can rebut speech,propaganda will answer propaganda, free debate ofideas will result in the wisest governmental policies.Court have recognized that this is not an unlimited,unqualified right, but that the societal value of speechmust, on occasion, be subordinated to other valuesand considerations.

Justice Holmes stated that the question in every

case is whether the words used are used in suchcircumstances and are of such a nature as tocreate a clear and present dangerthat they willbring about the substantive evils that Congresshas a right to prevent.

The constitutionality of the statute is adjudged bywhether or not it is reasonable. Since it was entirelyreasonable for a state to attempt to protect itself fromviolent overthrow the statute was perforcereasonable.

Wherever speech was the evidence of the

violation, it was necessary to show that thespeech created the clear and present danger ofthe substantive evil which the legislature had theright to prevent.

Courts interpretation of the 1st amendment: (TheFirst) Amendment requires that one be permitted tobelieve what he will. It requires that one be permitted

to advocate what he will unless there is a clear andpresent danger that a substantial public evil will resultherefrom. However, speech is not an absoluteabove and beyond control by the legislature when itsjudgment, subject to review here, is that certain kindsof speech are so undesirable as to warrant criminasanction.

This case warrants a restriction of speechbecause overthrow of the Government by forceand violence is certainly a substantial enoughinterest for the Government to limit speechIndeed, this is the ultimate value of any society, for ifa society cannot protect its very structure from armedinternal attack, it must follow that no subordinate

value can be protected. As to the meaning of clear and present danger, cour

adopts the rule by Chief Justice Hand. Chief JudgeLearned Hand, writing for the majority belowinterpreted the phrase as follows: In each case(courts) must ask whether the gravity of the evil,discounted by its improbability, justifies such invasionof free speech as is necessary to avoid the danger.

In this case, the requisite danger existed thepetitioners activities were from 1945-48 (formation oa highly organized conspiracy) when there wasinflammable nature of world conditions, touch-and-gorelationship of the US with other countries. Court isconvinced that these satisfy convictions. It is the

existence of the conspiracy which creates the dangerwe cannot bind the Government to wait until thecatalyst is added.

2.

Re vagueness: arguments by petitioners arenonpersuasive

We agree that the standard as defined is not a neatmathematical formulary. Like all verbalizations it issubject to criticism on the score of indefiniteness. Bupetitioners themselves contend that the verbalizationclear and present danger is the proper standard.

Court has attempted to sum up the factors that are

included within its scope


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Brief Fact Summary.The defendants convictions fordistributing leaflets advocating strikes during the RussianRevolution were upheld because their speech was not

protected by the United States Constitution (Constitution)based on the clear and present danger test.

Synopsis of Rule of Law. Men must be held to have intendedand to be accountable for the effects, which their acts are likelyto produce.

Facts. The Defendants, Abrams and others (Defendants) wereRussian immigrants. The Defendant were self-proclaimedrevolutionists and anarchists who wrote and distributedthousands of circulars advocating a general strike andappealing to workers in ammunitions factories to stop theproduction of weapons to be used against Russianrevolutionaries. They were convicted under 1918amendments to the Espionage Act that prohibited thecurtailment of production of materials necessary to theprosecution of war against Germany with intent to hinder itsprosecution.

Issue. Whether the Defendants speech was protected by theFirst Amendment of the Constitution?

Held. No. Men must be held to have intended and to beaccountable for the effects which their acts are likely toproduce. The plain purpose of Defendants propaganda wasto excite, at the supreme crisis of war, disaffection, sedition,riots and as they hoped, revolution in this country for thepurpose of embarrassing and if possible defeating the militaryplans of the Government in Europe. Therefore, their speech is

not protected by the First Amendment of the Constitution.

The leaflets are an appeal to violent revolution, a call for ageneral strike, and an attempt to curtail production ofmunitions. The leaflets had a tendency to encourage warresistance and to curtail war production.

Leaflets said: "Workers, our reply to the barbaric interventionhas to be a general strike! An open challenge only will let theGovernment know that not only the Russian Worker fights for[622] freedom, but also here in America lives the spirit ofRevolution""Know you lovers of freedom that, in order to save the Russianrevolution, we must keep the armies of the allied countries

busy at home""must now throw away all confidence, must spit in the face thefalse, hypocritic, military propaganda which has fooled you sorelentlessly, calling forth your sympathy, your help, to the

prosecution of the war."

From Schenck vs US: "The most stringent protection of freespeech would not protect a man in falsely shouting fire in atheatre and causing a panic. [...] The question in every case iswhether the words used are used in such circumstances andare of such a nature as to create a clear and present dangerthat they will bring about the substantive evils that Congress

has a right to prevent.

Dissent. In this case, sentences of twenty years have beenimposed for the publishing of two leaflets that the Defendantshad as much right to publish as the Government had to publishthe Constitution.

Discussion. Clear and present danger supposedly assuresspecial attention to the time dimension. Speech may not becurtailed until there is an immediate risk of an evil. Speech witha remote tendency to cause danger may not be curtailed.

Holmes modified his standard, stating that the governmencould constitutionally restrict and punish "speech that producesor is intended to produce clear and imminent danger that it wilbring about forthwith ... substantive evils." The difference inphrasing was more than semantic. By substituting "imminentfor present and adding the qualifier "forthwith," Holmes wassignaling a much stricter standard of judicial scrutiny: onlywhen a direct and immediate connection between an act ospeech and a subsequent crime existed could the speech itselfbe criminalized. Holmes dismissed the possibility that "the

surreptitious publishing of a silly leaflet by an unknown man ..would present any immediate danger," and argued for thesocial benefits of unrestrained free speech. "The best test oftruth is the power of the thought to get itself accepted in thecompetition of the market, and that truth is the only groundupon which their wishes safely can be carried out," he wrote"That at any rate is the theory of our Constitution."

(1985) [2nd last Marcos year]

Gutierrez Jr J

FACTS:

Radio Station DYRE was summarily closed on grounds of nat'security. It was alleged that DYRE was used to incite people tosedition which arose because they were shifting to coverage ofpublic events and airing programs geared towards publicaffairs. Petitioner raises freedom of speech. Before court couldpromulgate it's decision, the petitioner suddenly withdrew itspetition because DYRE was bought by another company and ithad no more interest in the case, nor does the buying companyhave an interest. Moot and academic.

ISSUES:(1) Whether or not due process was exercised in the

case of DYRE. No.

(2) Whether or not the closure of DYRE is a violation othe Constitutional Right of Freedom of ExpressionYes

RATIO:

The cardinal requirements for an administrative proceedingwas already laid down in Ang Tibay v Industrial Relations

EASTERN BROADCASTING vs. DANS

ABRAMS vs. US


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(hearing, substantial evidence, etc). Although there is noprecise and controlling definition of due process, it does furnishan unavoidable standard to which govt action must conformbefore depriving a persons rights.

(1) The right to hearing, includes the right to present onescase and submit evidence presented.(2) The tribunal must consider the evidence presented

(3) The decision must have something to support itself.(4) Evidence must be substantial (reasonable evidence that isadequate to support conclusion)(5) Decision must be based on the evidence presented athearing(6) The tribunal body must act on its own independentconsideration of law and facts and not simply acceptsubordinates views(7) Court must render decision in such a manner that theproceeding can know the various issued involved and reasonsfor decisions rendered.

All forms of media are entitled to freedom of speech as long asthey pass the clear and present danger rule. If they say wordsthat are used in such circumstances and are of such nature asto create a clear and present danger that they will bring aboutthe substantive evils that a lawmaker has a right to prevent.

The rule does not have an all-embracing character for allutterances in every form, however. Broadcast media isnecessarily under stricter supervision than written media.Radio and TV are easily accessible in the country and confrontpeople in public and private, unlike written media that somepeople cant afford nor read. The clear and present danger rulemust take this into account. The govt has a right to protectitself against broadcasts which incite sedition. But the peoplehave the right to be informed too and obsequious programmingwill not serve. The freedom to comment on public affairs isessential to the vitality of a representative democracy.

Broadcast media as the most popular and convenient infodisseminators around deserve special protection by the dueprocess and freedom of speech clauses.

DISPOSITION:

Moot and academic. But the petitioners would have won.

OTHERS:

Fernando CJ, concurs:

Oooh, guidelines are good, even if the case is moot andacademic.

Teehankee J, concurs:

Because cut and paste did not actually exist in 1985, I am stillgoing to submit my concurring opinion for Gutierrez ponenciabut with an added prefatory statement.

Good job, ponente, for pulling off the clear and present dangerrule as the standard for limiting preferred rights [freedom ofexpression, etc]. Good job too in Salonga vs Pao[!] whichwent back to fundamentals and states: citizens right to be freefrom arbitrary arrest, punishment and unwarranted prosecutionis more impt than crimproc; freedom of expression is a

preferred right and therefore stands on a higher level thansubstantive economic or other liberties because it is theindispensable condition of nearly every other form of freedomDebate on public issues should be wide open, maybe evennasty, as long as the debate or the words do not lead to theviolent overthrow of govt.

In this case the ponente restates basic and established

constitutional principles. Public officials do not possessabsolute power to summarily close down a station or depriveits license. Broadcast media deserve the preferred right of freepress and speech. It is in the interest of society to have afull discussion of public affairs. Free speech is a safetyvalve that allows parties to vent their views even icontrary to popular opinion. Through free expressionassembly and petition, citizens can participate not onlyduring elections but in every facet of govt. People v Rubiocommendable zeal if allowed to override constitutionalimitations would become obnoxious to fundamental principlesof liberty. Primicias v Fugoso: disorderly conduct by individuamembers is not an excuse to characterize the assembly asseditious. If that is so then the right to assembly becomes adelusion. German v Barangan, mydissent: to require a citizen

to assert his rights and to go to court is to render illusory hisrights. After five years of closure, reopen.

Abad Santos J:

Everybody should read the ponencia, Teehankee and AngTibay.

SPEECH PLUS: SYMBOLIC SPEECH

(1968)

WARREN, CJ

FACTS:David Paul O'Brien and 3 companions burned their SelectiveService registration certificates on the steps of the SouthBoston Courthouse. A crowd, including several agents of theFBI, witnessed the event. After the burning, members of thecrowd began attacking O'Brien and his companions. An FBagent ushered O'Brien to safety inside the courthouse. O'Brienstated to FBI agents that he had burned his registrationcertificate because of his beliefs, knowing that he was violatingfederal law.

For this act, O'Brien was indicted, tried, convicted, andsentenced in the US DC for the District of Mass. He stated inargument to the jury that he burned the certificate publicly toinfluence others to adopt his antiwar beliefs, "so that otherpeople would reevaluate their positions with Selective Servicewith the armed forces, and reevaluate their place in the cultureof today, to hopefully consider my position."The DC rejected O'Brien's arguments. CA held the 1965Amendment unconstitutional under the First Amendment assingling out for special treatment persons engaged in protestson the ground that conduct under the 1965 Amendment wasalready punishable since a Selective Service System

U.S. vs. OBRIEN


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regulation required registrants to keep their registrationcertificates in their personal possession at all times.

ISSUE:

I. WON the 1965 Amendment to 462 (b) (3) abridges freedomof speech. NO

When a male reaches 18, he is required by the UniversalMilitary Training and Service Act (UMTSA) of 1948 toregister with a local draft board. He is assigned a SelectiveService number, and within 5 days he is issued a registrationcertificate He is also assigned a classification denoting hiseligibility for induction, and is issued a Notice of Classification.

Under 12 (b) (3) of the 1948 Act, it was unlawful to forge,alter, "or in any manner" change a certificate. In addition,regulations of the Selective Service System (SSS) requiredregistrants to keep both their registration andclassification certificates in their personal possession atall times. (nonpossession)

By the 1965 Amendment, Congress added to 1948 Act theprovision punishing also one who "knowingly destroys, orknowingly mutilates" a certificate. The 1965 Amendmentdoes not abridge free speech on its face , it deals withconduct having no connection with speech. It prohibits theknowing destruction of certificates issued by the SSS, andthere is nothing necessarily expressive about such conduct.The Amendment does not distinguish between public andprivate destruction, and it does not punish only destructionengaged in for the purpose of expressing views.

II. WON the 1965 Amendment is unconstitutional as applied tohim. NO

O'Brien's argues that the amendment was unconstitutional

because it was enacted to abridge free speech and served nolegitimate legislative purpose.

O'Brien argues that his act of burning his registrationcertificate was protected "symbolic speech" within the FirstAmendment. Freedom of expression which the FirstAmendment guarantees includes all modes of "communicationof ideas by conduct," and that his conduct is within thisdefinition because he did it in demonstration against the warand against the draft.

Even on the assumption that the communicative element inO'Brien's conduct is sufficient to bring into play the FirstAmendment, it does not necessarily follow that thedestruction of a registration certificate is constitutionally

protected activity. When "speech" and "nonspeech"elements are combined, a sufficiently important governmentalinterest in regulating the nonspeech element can justifyincidental limitations on First Amendment freedoms.

Govt regulation is sufficiently justified if:

1. it is within the constl power of the Govt2. it furthers an important or substantial govtal interest;3. the govtal interest is unrelated to the suppression of free

expression; and

4. the incidental restriction on alleged First Amendmenfreedoms is no greater than is essential to the furtheranceof that interest.

All requirements met therefore O'Brien can be constitutionallyconvicted for violating it.

O'Brien's argues that once the registrant has receivednotification there is no reason for him to retain the certificatesO'Brien notes that most of the information on a registrationcertificate serves no notification purpose at all; the registranhardly needs to be told his address and physicacharacteristics.

The registration certificate serves purposes in addition to initianotification:1. as proof that the individual described thereon has

registered for the draft.2. facilitates communication between registrants and loca

boards.

3. reminders that the registrant must notify his local board oany change of address, and other specified changes in hisstatus.

The many functions performed by SS certificates establishbeyond doubt that Congress has a legitimate and substantiainterest in preventing their unrestrained destruction. Thenonpossession regulations does negates this interest.

multiple punishment?it is not improper for Congress' to provide alternative statutoryavenues of prosecution to assure the effective protection oone and the same interest. Here, the pre-existing avenue oprosecution (nonpossession) was not even statutory. Congressmay change or supplement a regulation. (see difference

between pre-existing and new)

Nonpossession vs. Destruction(new) They protect overlapping but not identical governmenta

interests. They reach different classes of wrongdoers. Whether registrants keep their certificates in their persona

possession at all times, is of no particular concern undethe 1965 Amendment, as long as they do not mutilate odestroy the certificates.

The Amendment is concerned with abuses involving anyissued SS certificates, not only with the registrant's owncertificates. The knowing destruction or mutilation osomeone else's certificates would therefore violate the

statute but not the nonpossession regulations.

Both the govtal interest and the operation of the 1965Amendment are limited to the noncommunicative aspect oO'Brien's conduct. The govtal interest and the scope of the1965 Amendment are limited to preventing harm to thesmooth and efficient functioning of the SSS. The case abar is therefore unlike one where the alleged govtal interest inregulating conduct arises in some measure because thecommunication allegedly integral to the conduct is itselthought to be harmful.


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Because of the Govt's substantial interest in assuring thecontinuing availability of issued SS certificates, and becauseamended 462 (b) is a narrow means of protecting this interestand condemns only the noncommunicative impact of conductwithin its reach, and because the noncommunicative impact ofO'Brien's act of burning his registration certificate frustrated theGovt's interest, a sufficient governmental interest has been

shown to justify O'Brien's conviction.

III. WON the 1965 Amendment is unconstitutional as enactedbecause the alleged purpose of Congress was "to suppressfreedom of speech." NO

The purpose of Congress is not a basis for declaring thislegislation unconstitutional. The Court will not strike down anotherwise constitutional statute on the basis of an alleged illicitlegislative motive.

The statute attacked in this case has no inevitableunconstitutional effect, since the destruction of SS certificatesis in no respect inevitably or necessarily expressive.

Accordingly, the statute itself is constitutional.

There was little floor debate on this legislation in either House.Reports of the Senate and House Armed Services Committeesmake clear a concern with the "defiant" destruction of so-called"draft cards" and with "open" encouragement to others todestroy their cards, both reports also indicate that this concernstemmed from an apprehension that unrestrained destructionof cards would disrupt the smooth functioning of the SelectiveService System

FACTS:1. John Tinker (15), Mary Beth Tinker (Johns 13 yr old

sis) and Christopher Eckhardt (16), were all attendinghigh schools in Des Moines, Iowa, decided to join ameeting at the Eckhardt residence. There theydecided to publicize their objections to the hostilitiesin Vietnam and their support for a truce by wearingblack armbands during the holiday season and byfasting on December 16 and New Years Eve.

2. The principals of the Des Moines schools becameaware of their plan to were armbands and adopted apolicy that any student wearing an armband to schoolwould be asked to remove it and if he refused he

would be suspended until he returned without thearmband.

3. The petitioners still wore black armbands to theirschools. They were sent home and suspended untilthey came back without the armbands. They did notreturn until the planned period for wearing thearmbands expired-on New Years Day.

4. They filed complaints through their fathers and prayedfor injunctions restraining the school officials plusnominal damages. District Court rendered in favor ofthe school officials saying that it was reasonable inorder to prevent disturbance of school discipline.Court of Appeals affirmed.

ISSUE:WON the wearing of black armbands is an expression ospeech and protected by the Constitution?

HELD: YEAH

RATIO:

- it can hardly be argued that either the students or

teachers shed their constitutional rights tofreedom of speech or expression at theschoolhouse gate

- in West Virginia v Barnette, it was held that a studenmay not be compelled to salute the flag

- the school officials sought to punish thepetitioners for a silent, passive expression ofopinion, unaccompanied by any disorder odisturbance on the part of petitioners. Only a fewof the 18,000 students wore the armbands whereinonly 5 were suspended. There is no indication that thework of the schools or any class was disruptedOutside the classrooms, a few students made hostileremarks to the children wearing armbands, but therewere no threats or acts of violence on schoopremises.

- In our system, undifferentiated fear or apprehension isnot enough to overcome the right to freedom oexpression.

- There is no finding and showing that engaging in othe forbidden conduct would materially andsubstantially interfere with the requirements oappropriate discipline in the operation of the school.

- School officials do not possess absolute authorityover their students. They are possessed ofundamental rights which the State must respect jusas they themselves must respect their obligations tothe State. They may not be confined to the expression

of those sentiments that are officially approved. In theabsence of a specific showing of constitutionally validreasons to regulate their speech, students are entitledto freedom of expression of their views.

(reversed and remanded)

Texas v. Johnson

Brief Fact Summary. A conviction for burning the UnitedStates flag based on a Texas law was overturned after theSupreme Court of the United States (Supreme Court) foundthat the Texas law was unconstitutional.

Synopsis of Rule of Law. The government generally has afreer hand in restricting expressive conduct than it has inrestricting the written or spoken word. It may not, howeverproscribe particular conduct because it has expressiveelements. It is not simply the verbal or nonverbal nature of theexpression, but the governmental interest at stake, that helpsto determine whether a restriction on that expression is valid.

Facts. During the 1984 Republican National Conventionrespondent Johnson participated in a political demonstration toprotest the policies of the Reagan administration and someDallas-based corporations. After a march through the city

TINKER vs. DES MOINES SCHOOL DISTRICT


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streets, Johnson burned an American flag while protesterschanted. No one was physically injured or threatened withinjury, although several witnesses were seriously offended bythe flag burning. Johnson was convicted of desecration of avenerated object in violation of a Texas statute.

Convicted -> affirmed - > reversed (Texas court of criminalappeals) -> elevated to SC.

Issue.

1.) Whether Defendants burning of the flag constitutedexpressive conduct, permitting him to invoke the FirstAmendment of the United States Constitution(Constitution)?

2.) Whether the states interest in preserving the flag as asymbol of nationhood justifies Defendantsconviction?

Held:

1.) YES. Under the circumstances, Johnson's burning ofthe flag constituted expressive conduct, permittinghim to invoke the First Amendment. The Stateconceded that the conduct was expressive. Occurringas it did at the end of a demonstration coinciding withthe Republican National Convention, the expressive,overtly political nature of the conduct was bothintentional and overwhelmingly apparent.

2.) NO. Texas has not asserted an interest in support ofJohnson's conviction that is unrelated to thesuppression of expression and would therefore permitapplication of the test set forth in United States v.O'Brien, whereby an important governmental interestin regulating nonspeech can justify incidental

limitations on First Amendment freedoms whenspeech and nonspeech elements are combined in thesame course of conduct.

Texas interest: preserving peace, flag as a symbol of unity

Preserving peace: An interest in preventing breaches of thepeace is not implicated on this record. Expression may notbe prohibited on the basis that an audience that takesserious offense to the expression may disturb the peace ,since the Government cannot assume that every expression ofa provocative idea will incite a riot, but must look to the actualcircumstances surrounding the expression. Johnson'sexpression of dissatisfaction with the Federal Government'spolicies also does not fall within the class of "fighting words"

likely to be seen as a direct personal insult or an invitation toexchange fisticuffs. This Court's holding does not forbid a Stateto prevent "imminent lawless action" and, in fact, Texas has alaw specifically prohibiting breaches of the peace.

Flag as a symbol of unity: Texas' interest in preserving theflag as a symbol of nationhood and national unity is related toexpression in this case and, thus, falls outside the O'Brien test.The latter interest does not justify Johnson's conviction. Therestriction on Johnson's political expression is content based,since the Texas statute is not aimed at protecting the physicalintegrity of the flag in all circumstances, but is designed to

protect it from intentional and knowing abuse that causesserious offense to others. It is therefore subject to "the mosexacting scrutiny." Boos v. Barry, 485 U.S. 312. TheGovernment may not prohibit the verbal or nonverbaexpression of an idea merely because society finds theidea offensive or disagreeable, even where our flag isinvolved. Nor may a State foster its own view of the flag byprohibiting expressive conduct relating to it, since the

Government may not permit designated symbols to beused to communicate a limited set of messages. Moreoverthis Court will not create an exception to these principlesprotected by the First Amendment for the American flag

Dissent:It was for Defendants use of this symbol, not the ideathat he sought to convey for which he was convicted.

The interest of preserving the flag as a symbol of nationhood islegitimate and justified the Defendants conviction.

Assembly & Petition

FACTS:

Petitioner Cipriano Primicias is the campaign manager of theCoalesced Minority Parties. Respondent Valeraino Fugoso isthe Mayor of Manila. Primicias would like to compel Fugosoby means of a mandamus, to issue a permit for the holding of apublic meeting in Plaza Miranda, as respondent Fugoso hasdenied the request.

The reason alleged by the respondent in his defense fo

refusing the permit is, "that there is a reasonable ground tobelieve, basing upon previous utterances and upon the facthat passions, specially on the part of the losing groupsremains bitter and high, that similar speeches will be deliveredtending to undermine the faith and confidence of the people intheir government, and in the duly constituted authorities, whichmight threaten breaches of the peace and a disruption ofpublic order." Giving emphasis as well to the delegated policepower to local government.

ISSUE: WON the denial of the permit for holding a publicmeeting is proper.

HELD: No it is not.

RATIO:

The court first states the importance of the right of freedom ofspeech and to peacefully assemble, stating, however, thathese rights have their limits in that they should not be injuriousto the rights of the community or society.

Then they discuss the other side, the right to regulate theserights. This brings a discussion of police power, saying that thelegislature delegated police power to the Municipal Boardof the City of Manila, giving it regulatory powers regardingthe use of public places. These powers, however, according

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to the court, are not absolute. If these powers were absolute,then the Municipal or City government would have sole andcomplete discretion as to what to allow and what not to allow.This would be wrong as it would leave decisions open tothe whims of those in power. While these rights should beregulated, they should be regulated in a reasonable manner,and giving unbridled deciding power to the government is notreasonable.

Also, looking at the ordinance Sec. 1119, the courts said therethere were 2 ways to interpret such an ordinance:

1) The mayor has unregulated discretion2) Applications are subject to reasonable discretion to

determine which areas to use to avoid confusion andminimize disorder

The court took the 2nd interpretation.

To justify their stand, the court went through a series of U.S.cases that handled similar circumstances. Many of these casesstruck down ordinances and laws requiring citizens to obtainpermits for public meetings, events, parades, processions, andthe like.

Lastly, the court states that there is no reasonable reason todeny this public meeting. As such, the mandamus is granted.

Note: SEC. 1119 Free for use of public The streets andpublic places of the city shall be kept free and clear for the useof the public, and the sidewalks and crossings for thepedestrians, and the same shall only be used or occupied forother purposes as provided by ordinance or regulation:Provided, that the holding of athletic games, sports, or exerciseduring the celebration of national holidays in any streets orpublic places of the city and on the patron saint day of anydistrict in question, may be permitted by means of a permit

issued by the Mayor, who shall determine the streets orpublic places or portions thereof, where such athleticgames, sports, or exercises may be held: And provided,further, That the holding of any parade or procession in anystreets or public places is prohibited unless a permit therefor isfirst secured from the Mayor who shall, on every suchoccasion, determine or specify the streets or public places forthe formation, route, and dismissal of such parade orprocession: Andprovided, finally, That all applications to hold aparade or procession shall be submitted to the Mayor not lessthan twenty-four hours prior to the holding of such parade orprocession.

The Mayors first defense is untenable. Fear of serious injurycannot alone justify suppression of free speech and assembly.

It is the function of speech to free men from the bondage ofirrational fears. To justify suppression of free speech theremust be reasonable ground to fear that serious evil willresult if free speech is practiced. There must be reasonableground to believe that the danger apprehended is imminent.There must be reasonable ground to believe that the evil to beprevented is a serious one . The fact that speech is likely toresult in some violence or in destruction of property is notenough to justify its suppression. There must be the probabilityof serious injury to the state.

There must be 1) reasonable ground that evil will occur, 2)such evil is imminent, 3) such evil is serious.

HILADO DISSENT:

The dissent of J. Hilado is divided into 4 parts: a, b, c and d.

a) Right not absolute but subject to regulation. Mainlysays that the right to freedom of speech andassembly are not absolute rights. After citing U.S

cases, J. Hilado moves to the case at bar and pointsout that the Mayor of Manila had the duty and powerto grant or deny permits. Moreover, he says that thegovernment has the right to regulate the use of publicplaces. Pointing to the case at bar, Plaza Miranda is apublic place in that it is a high traffic area, whether forvehicles or pedestrians. As such, holding the meetingthere would have caused an inconvenience andinterfere with the right of the people in general. Heagain states that the right is not absolute, but subjecto regulation as regards the time, place and manneof its exercise.

b) No constitutional right to use public places undegovernment control, for the right of assembly andpetition, etc. Here, J. Hilado explains that the actionthat the Mayor of Manila took was not one of denyingthe public meeting and regulating the right to speechand assembly, but was merely one of denying the useof a public place in the conducting of the meeting. Inthis interpretation, there was no constitutional righinfringed.

c) Here J. Hilado goes through his own list of U.S. casesto cite as authority. I dont think dean will make usenumerate them. Anyways the summaries in the caseare short.

d) Mandamus unavailable. Here, J. Hilado cites section2728 of Municipal Corporations, 2nd ed., a source oAmerican municipal rules. In this rule, it is stated thain the issuance of permits, if the power is

discretionary, it cannot ordinarily be compelled bymandamus. The refusal must be arbitrary ocapricious so as to warrant mandamus. He thenpoints to certain allegations of the Mayor of Manilapointing to the high possibility of trouble that wouldresult from the meeting taking place. His reason indenying the permit is that of peace and order. Assuch, the refusal was not capricious or arbitrary anddoes not warrant a mandamus.

FACTS:Jan 26, 1970, Congress opened. Student demonstration infront of the Congress, followed by a series of demonstrationsrallies, marches and pickets, many of which ended in thedestruction of public and private property, loss of a few livesand injuries to a score of other persons. Schools, offices andmany stores were forced to close.

Feb 24 1970, Petitioner, Nelson Navarro, acting in behalf of theMovement for a Democratic Philippines, an association ostudents, workers and peasants wrote a letter to respondentMayor of Manila Antonio Villegas, applying for a permit to hold

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a rally (at the Plaza Miranda on Feb 26 [Tuesday], from 4:00-11:00pm).

On the same day, respondent denied his request saying thatIn the greater interest of the community, this office, guide by alesson gained from the events of the past few weeks, hastemporarily adopted the policy of not issuing any permit for theuse of Plaza Miranda for rallies or demonstration during

weekdays. He suggested that they use the Sunken Gardensand to hold the rally earlier during the day in order that it mayend before dark.

Petitioner filed a suit contesting the Mayors action on theground that it is violative of the petitioners right, among others,to peaceably assemble and to petition. In reply to thecontention of the responded that the permit to hold a rally wasnot being denied and in fact the Sunken Gardens was offeredas a place of said rally, the petitioner argued that forobvious reasons the right to peaceful assembly cannot befully enjoyed without the corresponding right to use publicplaces for the purpose and that therefore, a denial of theuse of public place amounts to the violation of thefreedom of assembly. For the complete enjoyment of theright,

freedom of expression protected speech

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