Speaker 1:	Well, thank you for those kind words and for the invitation to address you all on Constitution Day, particularly about freedom of speech. I'm getting a little feedback or something. No? I'm hearing ... All right. We'll see how it goes.
	Freedom of speech has been a big part of my writings and my litigation and my life for longer than I can remember. Of course, in the United States, we love free speech. Almost everybody's for free speech. It's just we don't seem to quite be able to figure out some agreed upon meaning and significance for it, but it's not uncommon to hear the country was founded on free speech. Typical 4th of July speech will say something like that. Imagine you all like I did, even many years ago, were taught that in high school. It's a central ingredient of our origin story. As such, it takes on a kind of abstract, timeless quality that transcends history really, and experience, and human agency. That makes it, I think, particularly hard to get a grasp on it. If it's just so monumental and we're all for it, and yet, we need to argue about when does it apply and when it doesn't. 
	If you look at it concretely and contextually, which I've tried to do throughout my writings and my work, it's really a series of limits on government interference with certain kinds of speech. Handing out leaflets, refusing to allow people to demonstrate, breaking up a public talk or sometimes breaking up a talk even in our history, in our early history, even in a private college hall such as this one. If you look at the main features of it, what constitutes pretty much agreed upon free speech, which I'll get to in a moment, it's not really a product of the constitution or the First Amendment. We didn't have it then. It really wasn't established in any meaningful way until the 1930s. So, that's quite a bit into our history.
	In my view, it developed over time by common forms of social change. It's always framed as if it's purely legal. We're always talking about what this Justice and that Justice said. Of course, that's very important, what courts do. But courts didn't just invent this out of the blue, or adopt the features as I'm explaining it, the main features of a system of free speech on their own. There were movements, there were counter-movements, and lots of developments. 
	I hope to get to, if we have time tonight, some of that early history because it's really fascinating and think it really does help you understand the current struggles. That same concrete and contextual focus on the decisions looked at over the last few decades, what I call the Rehnquist-Roberts era - were the two Chief Justices that led most of those periods - reveals really some striking and some disturbing patterns and trends that have just flat been ignored, partly because free speech plays the role it plays, and for other reason. That's going to be my focus this evening: what has the current Supreme Court, led by Justices who self-describe themselves as conservative, what have they done to freedom of speech? 
	It's a complicated answer because what usually happens is they say they allow demonstrators to go near the funeral of a fallen soldier, in the case called Snyder v. Phelps. The press and the commentators will say, "Jesus, Supreme Court is so pro-free speech, it even allows these kinds of lunatics," which is what they were mostly referred to, "who were really wanting to indict this soldier who had just died in the war for really no good reason. And this shows how tolerant and how pro-free speech they are." The Court and the particular Justices really don't fit any kind of realistic pattern of pro-free speech or anti-free speech. That's, I think, one of the problems, looking for that answer, when really they're both. 
	The question is: selectively, when are they pro-free speech? What kinds of cases? What kinds of people trying to say what kinds of things get that pro-free speech with all the rhetoric of this natural law expressed principle? Which ones get, "Well, what they were trying to do wasn't all that important, wasn't all that significant. It disrupted things," or some other reason is given for denying free speech? The question becomes: selectively, when are they pro-free speech and when are they anti-free speech?
	Now, when I say they're self-described conservatives, I certainly don't mean that they're monolithic or that they all think the same, or that once they became a majority, starting mostly in mid-1970s - it's been a long time - that they always were a majority. They weren't, sometimes, more liberal judges or we think of more liberal would join with them. It's a complex picture, but you can look at the new rules and doctrines that they initiated and how they applied them and you can look at how they modified older rules and doctrines, and again, in what situations they selectively applied them. I think the pattern or trend that emerges - and I'll just be explicit about this - can be summarized with three points. 
	First, there's an enlargement of the speech rights available to wealthy people, businesses, corporations and other favorite people or institutions. Second, there's a restriction of the speech rights available to people of ordinary means, workers and unions, government employees, students. Excuse me if I pander a little bit to the audience. You're upset about this, right? That's you. Their very clear law has withdrawn almost all aspect of student rights that became established in the 1960s. This is in the restriction category. The basic democratic rights of American to vote and participate as equals in the electoral process. And third, the third element, they've erected free speech barriers to public access to the media, and to electoral economic and social reforms aimed at improving the lot and lives of Americans. 
	What I'm saying, and then I'm going to hope to demonstrate it to you, is that if you look concretely and contextually, you look at who is asserting what kind of right in what kind of context. What social meaning can we put on it? And what rules are applied? Are they consistently applied? One of the common problems is when decisions come down, usually the analysis is limited just to the particular area. If there's a case on picketing, the media and the commentator will usually in the laws as well as the popular media, they'll compare it to the other picketing cases. Is this an expansion to picketing or is this is a limit of picketing?
	What I'm saying is that's certainly worth doing, but also, the principles they use and the results they got are those methods used for in non-picketing cases. The rules that they state as general ... Because all Supreme Court cases if you've ever read them, are justified in terms of neutrally stated principles that are applied. The theme of every Supreme Court case, probably it's fair to say every decision of every court, is the "Law made me do it." Right? "I'm not doing this because I want to. Please. I'm not that important." Speaking as the Judge. "There are these rules and my job ... " 
	If you listen to the confirmation hearings, like of Chief Justice Roberts or Justice Rehnquist, they sound like they're computers. They literally call themselves umpires in the baseball game. They just call ball and strikes, and you're out or you're not out. There's some flexibility there also, more than they admit, but really the whole system offers these huge number and kind of justifications without any rules about what justification must apply in what case. So, in my view, there's an enormous choice involved that we don't talk about. Hence, I call it the politics of law in that exact sense.
	Let me be more concrete about this, so you can see what I'm talking about. I don't have time and it would extend this greatly to try and do everything I've written or set out all the examples of this, but I think I can give you enough to get a sense. If you look at the places and the types of speech that are available and most significant to people of ordinary means. It's handing out leaflets, speaking to people on the street, maybe trying to interest them in whatever your issue is or whatever your topic is. Picketing to convey information, also to show displeasure with something. Gathering in demonstrations of course when it gets to a big enough issue and there's enough support. 
	The early cases, when I say they were the first ones that adopted free speech as we know it, came in the mid-1930s, those were the rights that they proclaimed. They dealt with all of the arguments that were made against those rights. So, city administrators would say, "Leafletting litters up the streets. It's an inconvenience to the people who don't want to read the leaflet. They have to stop or they have to go around." Even if the people aren't actively blocking it, and nobody has a First Amendment right to block a sidewalk. You're supposed to be peaceful and you're supposed to let people go on their way if they're not interested. Those were the ones that the Court protected and specifically said this was to empower the people. The people were supposed to have a way to enter the dialogue on the issues of the day. It's both the individual. It's a part of expression, participation. It's part of democracy, right? This is the only way they have of getting their views across. They can't buy time. Back then it would have been on radio. But certainly now, we know the kinds of money that's involved with television purchases.
	To give you a sense of how bad this was and how little free speech we had, let me give you one example that these '30s cases were meant to stop from happening. Emma Goldman was a very famous activist, organizer, very well known. She was also a literary critic. In 1909, she gave a huge talk in a big hall, called Lexington Hall, in New York City. Hundreds of people were there. The talk was entitled, "Ibsen as a pioneer of modern drama." Well, the police came. Police sergeant got up on the stage before she started and she says, "This is really about literature. You can go ahead. But if this is a political rally, it's illegal and you can't do it." So, Goldman starts by all accounts was just making some literary comments on that occasion. The first time she mentions Ibsen, he says, "All right. That's it. That's it. This is now an illegal gathering. Clear the room." He has police come in and they cleared the room with clubs. People were hurt.
	My own thinking is, it's hard to read what he was thinking, the cop, and why he did it. But I think he thinks Ibsen was some Russian revolutionary. It's like, Lenin, Trotsky and Ibsen? It just sounded very foreign and very Russian to him. She really was just talking about literature. Not that you should be limited to literature, right? What if you want to talk about the politics of the day? They weren't allowed to do that. This was in a private hall. This wasn't even outside on the streets. This kind of thing happened all the time. 
	What the Court even went further and said, "These kinds of rights you carry with you as an American." If you work in a company town, like coal mines would set up towns where they built and owned all the housing, they owned the streets, they owned the sidewalks. So, all of the public street side walks and parks were actually privately owned and controlled. And they said, "Well, this is our property." The coal mines said, the companies. "We don't have to let anybody picket us or walk around with signs saying that we're mean and bad people." And the Supreme Court extended it even to privately owned property and said, "If you take on, by creating a company town, the basic functions of government and people live there and are surrounded by your company town, they come there with those rights. They're Americans and they can express themselves peacefully and you can't stop them from doing so." 
	In the '60s, just to see the kind of history flow on a particular issue, which is a very important one but not the only one. In the '60s, it became clear that the old ways of making your point for people of ordinary means particularly, were not working very well. Society had become suburbanized, so the town center or the downtown market, the town square, you could go there to hand out literature. There wouldn't be anybody there. They're living in the suburbs, they drive to the market, they drive to work. They may never come downtown or once in a while. And so, the two places that were left where you could try to communicate with your fellow Americans without spending a fortune was malls, right? They go in and out of the malls all the time. And transit terminals. They would commute, they would go places, they would go out of town. So, those were the two that were left and the Supreme Court said that, "We're gonna broaden the rights," again these basic rights to hand out literature, talk to people peacefully, "In malls, even privately owned malls, and in transit terminals." So, they enlarged the range of exercise of these free speech rights. 
	The Rehnquist-Roberts era did this in pretty quick. They overruled the cases about malls. They just said no. That's no longer the law." One case was overruled only eight years after it had been decided. That quickly they just overruled it. On terminals, they created several doctrines. They hadn't completely abolished any speech rights in there, but it's pretty close. You really can't do much, even in the leading case were about the New York airports. The open parts of it, not where the planes and the gates are, but the open parts of it, which are just huge marketplaces with Bloomingdales. It's basically a transferred, what used to be in the city center and in the mall, right into the terminal. But that's all been diminished. 
	The other thing in a related series of cases, they've expanded what's called the time, place and manner doc. This turns out to be very significant. There always was, even when speech was most protected in the mid '30s and '40s and in the '60s, there was always an exception for reasonable time, place and manner regulations. This would cover something like this. You have a right, say in an electoral campaign, to use a sound truck, go around with an amplified speaker on the top of a truck and to try to gather support, say, for your candidate or your viewpoint. But if you want to do that in the middle of the night, in a residential neighborhood, the Court said no. Now they wouldn't reject, "You don't have a right to do that." You can do that, but only in a certain time, place and manner, and in some other times, places and manners, such as in the middle of the night in a residential neighborhood, you can't. 
	But this was a delicate balance because as introduced in the early cases, this was meant to be a very narrow exception. If you broaden it too much, you can get to, "Well, the government can stop the speech whenever it's inconvenient, either to the government or the people who are listening to it who may not like it." The Court expanded the time, place and manner doc. And that's the source for something that has been brewing for quite some time. Some of you may have experienced it. The authorities want to push demonstration away from public view and away from the institutions they're aimed at. The whole point of the earlier cases was that's where the action is, that's where you're supposed to be able to go to hand out your leaflet, to demonstrate, to picket, whatever it is. You're supposed to be there in the action. 
	This is the opposite. This says, "Yeah, you can move 'em two blocks away where the TV cameras can only catch 'em if they're not lazy and if they care enough to travel to two weeks and interview somebody or show the demonstration. But you're out of sight and out of mind." So, they've made it much, much easier for government to dismiss and essentially shut up demonstrations. This has become rather general. 
	Now simultaneously, while they're doing these cutbacks, as I said in summary, there's been some expansions. They're not always pro-speech, they're not always anti-speech. But there's some pro-speech expansions, campaign finance limits. They've eliminated and how do they do that? They came up with two doctrines. Money is speech, the first. Money is speech. I mean, the case that decided that in 1976 just sort of said it. Why would money be speech? 
	There are certain things and activities that you say are speech and usually in the earlier cases they were called pure speech. A book, a talk like we're engaging in right now. This is pure speech, us having this event together. A leaflet. In modern terms, a blog I would say is pure speech. That's exactly an electronic version of pure. But you picture a pile of money or a blob of money. There's lots of things you could do with it. You could buy speech. You could buy lots of things, but is it speech itself? It facilitates speech. There's cases saying that activities having to do with the distribution, the city can't stop the Inquirer's trucks from going around the streets early in the morning and handing out the morning Inquirer. So, when you wake up, it's on your step. The distribution, although it's not speech itself, gets protection, but it gets a lower level of protection. Things that facilitates speech, but aren't quite speech, have traditionally gotten a lower level. They said money is speech. There's longer analyses of this in my material and lots of other people's materials, but it just doesn't work in any kind of sensible way I can see. 
	The second doctrine, and this one's a little more complicated and has really eluded close thought and criticism for an awful long time. One of the problems they had, the conservative side, in the campaign finance cases right from the beginning ... First one's called Buckley v. Valeo and they acknowledged it in this case that the campaign finance laws limited the amount of money, but they didn't prohibit money. In other words, they didn't prohibit private financing of electoral campaigns. They could've. Some people favored that, that it all be done publicly. That would be a different kind of issue. This just said, "We're gonna try to set limits at some reasonable level." 
	Actually, the limits they set ... the government after the Watergate scandal, that's what led to the campaign finance limits. The limits they set were fairly reasonable levels. So, the Court had to decide whether limiting the quantity of money is the same as prohibiting it all. It gets the same constitutional analysis. Now without getting too much into details I think you don't probably need - there are in the writings if you want to see them - there's three different levels of what's called scrutiny in Supreme Court constitutional cases. If violation of something gets the highest level, called strict scrutiny, it's almost always invalid. Intermediate level could go either way. Last level, it's called rational basis. Anything that's sort of reasonable is okay. Anything the government does, it's sort of reasonable, it's not a constitutional violation if that particular kind of violation is analyzed as rational basis. The lowest of the three levels. 
	So, what we're talking about here is not whether it's protected or has some protection. I think it should have some protection. Like, the distribution. An intermediate level would be just fine. Now why it gets the harder level is the question, both on the money is speech count and on the quantity of speech. Remember, I talked about looking at the range? So, I started looking at other cases because they just throw this out. They say, "Well, they're limiting the quantity. That extra quantity is protected." That's a violation, highest level of scrutiny, strict-level of scrutiny. That's what Buckley v. Valeo says.
	I started looking at other cases where similar uses of money would seem to merit the same treatment, but it turns out they don't get it. For instance, when people of ordinary means doing their picketing and their handing out of leaflets and their gathering on the streets, say to passersby, say somebody is interested. They take your leaflet and you talk a little bit and you say, "Could you give us a few bucks to support printing the next batch of leaflets?" It's a common thing. That's called solicitation in the law. Sounds bad, doesn't it, solicitation? Just got this tone to it that has to do with prostitution. But they call it solicitation and in those cases there is not one mention of the money as speech. Even cases that come after the campaign finance cases. They get the lowest form of review, not the highest, not the middle. Even though that money, it's a little messier. There's a little bit of litter. There's a little bit of inconvenience. The basic cases say that should not matter. That does not render protected speech unprotected. But they're saying, that's going to get the lowest analysis and you're not going to be able to do it, even though they've just held in these other cases, in the campaign finance cases, that money is speech.
	Similarly, they limit the quantity of speech all the time without analyzing it with the highest level of scrutiny. Courts, administrators, police will always regularly limit the number of pickets. You ever set up a picket line, either through a union or otherwise, you often will get a limit. That's a limit on the quantity of speech. There's limits on the numbers of signs. There's regulations that have been upheld about the size of signs, and the number of signs. They say, "Well, the signs get too big. They could be a weapon." It's a mad picketer. It just doesn't seem like a major problem. The kind of problem or the kind of argument that the earlier cases would say no. You can prohibit people from hitting other people with cardboard. The government can do that, right? You don't have to stop speech because of the danger that some wild cardboard flying might go on. 
	All right, so this is an example of some of the expansions and a look at the rationale to see how consistent it is. Others that I won't go into detail. Corporations are people. You didn't know that, did you, before the Supreme Court told you? Again, it just is almost absurd in my view. They enlarged the area of commercial speech. Before the Rehnquist-Roberts era, commercial speech got the lowest level of scrutiny. That was because it didn't have the self-expressive or good government or democratic aspects to it that regular person-to-person speech has. So, it was seen as an economic business activity and that meant it would get a lower level of scrutiny. Well, in the Rehnquist-Roberts era, that was all done in. Commercial speech was moved up to at least the intermediate level. Some cases are giving it the highest level. 
	Just to give you a sense of how wild these choices of rationales can be and how much choice there is, they used what's called the listener's rights argument. They said, "People want to hear what the companies that make products and services have to say. It helps them make informed choices." There is this argument and it's been in the backdrop or sometimes in the forefront of cases, but there's no rhyme or reason to which case because you can always argue that speech should be allowed because it's important to the listeners. You can always make that argument, right? If you're just making the argument that the speech, it doesn't have to be earth-shattering, but has some value to people who might want to hear it. 
	For instance, again, looking at other cases, there's this famous case FCC v. Pacifica, again in the Rehnquist-Roberts era. It's about comedian, George Carlin. You've heard of George Carlin or you've seen ... He's got this famous bit where he does the seven words that you can't say on television, which he's trying to say all the time. He can't help it. The FCC had this rule and the seven words were actually said out, so the FCC had to say them in order to tell everybody else not to say them. So, here's an argument that the bit is extremely funny. At least, to my sensibility. I'm a listener that likes hearing it. The argument was made there too. Listeners find him entertaining, he's a social commentator. He's very political sort of guy in his humor and he mocks censorship. Just that in a sense is pretty important, isn't it? He's trying to communicate to people, "We shouldn't allow these people to censor what we hear or what we see. And look how silly it is. You can say this, you can say that." He goes on and on about it. It's quite effective and I think funny.
	The crucial thing is: this rationale, "We're going to allow this speech even though it might not be allowed otherwise because it ..." or "It might not get a higher level of scrutiny otherwise because listeners want to hear it." That's the Supreme Court. There's no surveys, there's no listenership. A tangent is all made up by Supreme Court Justices. They say, "Oh, listeners want to hear that. We're going to allow that. Listeners don't want to hear Carlin. We're not going to allow that." 
	Then in the retrenchment area ... Let me just say a couple more. Again, I'm not going to go into them in any detail. There's two new doctrines that the Rehnquist-Roberts Court adopted and Professor Nackenoff referred to one of them, secondary effects and incidental effects. This is just one of the stranger developments I think in the law of free speech. They basically said that even though something might be a free speech violation, it might even be censorship in the sense that the government is prohibiting speech because it doesn't like that speech. It's usually called going to the content of it, the content barrier being extremely important. That's the worst kind of censorship, right? When the government is saying, "This message is okay. That message isn't okay." Well, the Court set up a rule where even if they are making content decisions, if you can show government that there is some non-censorsing purpose to what you're doing here, then it's okay. 
	Now, it gets more complicated because you think, "Oh, then you gotta look at the purpose of the people who vote on it." No, they won't let you do that. That would be inappropriate, they say, for Courts to be inquiring about the motives of legislators. Not appropriate. So, they make purpose or motive the lynchpin of this rule. Then they say, "You can't look at the real one. You're not allowed to do that." The result of course is that the government is allowed to shut up speech because you're basically saying if the lawyers or the government after the fact can articulate some purpose that's not censorship, some neutral purpose ... 
	One of the early cases had to do with an adult bookstore. They were trying to limit it because they don't like adult bookstores. It was based on the content. They prohibited them with a formula about the city - this was in Spokane, Washington - that prohibited from 94% of the area of the city. The other 6% either wasn't available or was highways. There was no people. There was no place to stop. 
	To some people, it looked like a complete exclusion. They said, "Oh no. They weren't after the adult content at all. They would never think that, right? They wouldn't censor like that. They wanted to do something about crime." That's the other abstract purpose. You don't have to prove it was the real purpose. You're not even allowed to address that. You can't say, "No, no, they hate pornography. They've been going on and on about pornography in meetings in city council for years. They hate it. They saw a chance to do this sort of geographical description as if it's not pornography they're after. But if they defined it as applicable only to adult bookstores, to explicit sexually items. It's okay because lawyers have articulated a reasonable purpose that's not based on the content of the speech." It's like magic. 
	See, I have to read these things. I'm not asking you to feel sorry for me, but you know, they come across your desk and you think, "Oh, what are they going to do now?" This one is the secondary effects, particularly, I have to say is quite baffling. 
	All right. Now, other things they've done. As I said, some of these things they've done with the votes also of people we wouldn't consider conservative. But that's got a significance. We could talk about it another day. Important thing is what this conservative group has done once they've been in power. And that's to reject all claims by the public to access to the mass media. In most every western democracy, but ours, the mass media has some kinds of duties to publish things by, for instance, people they criticize. If they say so and so is the managing director of Philadelphia and there's been some weird movement of money out of his office, blah blah blah, they imply or say or quote somebody saying, "He's corrupt." Almost everywhere else in the western democratic and broader world, there's what's called a right to reply. They don't have by the way that much libel cases to deal with. The reply sort of fills that purpose. We deal with libel cases a lot. It says, "Well, if you were negatively commented on in an article, you have a right to write your own answer to it." Doesn't get the same headline or necessarily the same place. 
	In many newspapers in Europe, it's a page that comes out every week or so - different for different publications - but it's very popular. People love it, they read it, they say, "Oh, that's one sour grapes. He really did it." Or "This one's really made a point. That was really unfair. The paper shouldn't have described him that way." What the Supreme Court has done is analyzed the mass media - I mean, the biggest, hugest monoliths, CNN, the networks, ABC, CBS, Fox, all of them - as if they were individuals who were to hand out a leaflet and were being prohibited by the government. They protect them as if that's the problem. So, they give them the same rights as an individual would have. The government can't say to you, "The bottom 10% of your leaflet has to put the position of the other side that you're against." We think that's ridiculous. But these people are the marketplace of ideas. They're not being excluded from the marketplace of ideas. They basically have become at least the major features of the marketplace of ideas in contemporary society. 
	Seems to me, and I'm not the first one to propose this at all, they should probably be treated something like utilities. The privately-owned, they make a profit. They have certain rights. They can do editorials. They can express a viewpoint if they want. They're so mass-based, they don't want to express a viewpoint about anything. Or if they do, it's usually covered. They don't want to do what newspapers used to do. But otherwise, they're performing a public function. They're the networks, they're the medium in mass media. That's what they might be viewed as, but the Court has made that impossible. 
	Now, you may say, you may have already said to yourself or to your neighbor, that I'm omitting the internet. Isn't the internet and social media give us all the opportunity to enter that discourse on the issues of the day? I'd suggest to you that you can't view the internet any more than you could have viewed television or radio or phones that were described the same way as they're going to democratize all speech. Everybody will be able to talk to everybody. 
	Look at television. I mean, really, look at television. Look what happened to it. Any medium in this environment, which is a capitalist economic environment - that's the system we live under - any mechanism that's going to show the ability to reach large numbers of people is going to be bought and sold. It's going to have a price tag, it's going to be traded on markets literally, and it's going to be profit-oriented. I mean, that's not them doing something evil. That is the system, right? That is the system we operate under. I think it's unrealistic to expect any medium in this environment to somehow pierce this, I don't know, out of the goodness of the owners. Like, Comcast is going to say, "I dedicate myself to the public." It's just not realistic to expect this. 
	So, the internet could be a major mechanism for people participating in speech. It is a good way of talking to individuals and groups and texting. I myself 30 years ago wouldn't imagine. I thought typewriters were being phased out. I wouldn't have imagined that everybody would be into texting as a way of communicating, but that creates different possibilities and has done some very interesting things. I think to think of it as, in this environment, that it's going to be able to guarantee people entry into the issues of the day, I don't think is very realistic. 
	Cal, how much time? Another five minutes? Okay.
	The last thing I said I'd try to return to is the history because I think it really does help to see this. This is where I did some of my earliest writings. The Politics of Law, the first edition, was in 1982, and I did a chapter on freedom of speech. Basically - it's in my memoir too - I started as a law student, not much older than I think most of you are, and I thought, "Why don't I find the first Supreme Court case on freedom of speech?" I love freedom of speech and I was picturing some sheriff somewhere, arresting people because they're criticizing the owner of a store or the mayor or somebody, some public official, or some private institution or person that they think has done them wrong. And what's the Supreme Court going to say in this case, I'm going to find, "This is America. You can't do that, sheriff. You got to let them speak. It doesn't matter whether you or people who are powerful in the community like what they say." This is what I was looking for. Instead, I found a case called Commonwealth v. Davis, decided in 1897. 
	Davis was a Reverend preacher, preached what was called the social gospel. You may have studied about that in other endeavors. They very much tied politics and religion, that's nothing new, really. Also, were very, very down on corruption. They thought the corruption of government ... which was at huge levels. You can say there's many, many instances that we still have today that are problematic, but this was more widespread and more blatant. So, they really preached against the corruption of cities and governments, and that maybe what got Reverend Davis in trouble. 
	He lived in Boston and he was very critical of the Mayor. He used to go to Boston Common, just a big, open public park. Right now we think of it as a prime place to be able to hand out literature peacefully. He had leaflets that were just tracts from the Bible. Literal, long tracts from the Bible. He would try to interest you as you go by, and if you would show some interest, he would try to explain to you how that tract of the Bible really is being violated by the city in this way or that way. Or the state government. Could be a range of issues, but corruption would usually be one of them.
	They would pick him up and take him to the Charles Street jail, the local jail. One time they fined him instead of imprisoning him, which gave him the opportunity to appeal it. He goes up to the Massachusetts Supreme Court claiming freedom of speech, 1897. Supreme Court of Massachusetts gets the case and rules unanimously against him. The theory was this: the street, sidewalks and parks of the city are the property of the city of Boston to be administered by its officials, the Mayor. It's a simple property case. It's their property. You can't use it for speech or anything else. And they made an analogy. They said, "It's like a homeowner has control over the speech in his or her house." You do have that right. Somebody comes in, you think you like him. They say something awful. They're for the candidate you're deeply against or who knows what, you can say, "Get the hell out of here." That's not a free speech violation. That's their home.
	We usually think, at least today because the law changed in the 1930s ... This is part of the change I've been talking about. The main case is called Hague v. CIO, 1937 that says this, "The city may hold the title to the streets, sidewalks and parks, but the officials administer it in trust for the people. And the people have the right to gather there, to come and to go, to talk, to hand out leaflets, et cetera." That's what I mean by focusing on the specific features of the law and looking at when they came into being. It's almost uniformly the 1930s for any of these that matter.
	I did a summary of, in these early writings, what the law of speech might look like in 1800. This would be as if I was giving a talk saying, "What the law of speech is." I'm not going to call it free speech because it's not free speech to make. It's not what it is. Let's just call it speech law. There's four elements. 
	First, sedition, seditious libel and sedition was the law of every state and the government. And there was no free speech or constitutional limit on it. Does everybody know what sedition is? There's some heads nodding yes. You want to say?
Speaker 2:	[inaudible 00:52:41].
Speaker 1:	That's exactly right. Although, it was broader than that. It was any criticism of the government. This goes back to the English Common Law in terms of you can't criticize the king. The king can do no wrong, right? Kings are like that. If you criticize the king, you are wrong. What's interesting is in libel law, we always think truth is the defense. Back in Common Law, if it was true, it was worse because that would make the king look really stupid. If you could point out something where the king was way off, and the king looked like a fool, you're in trouble. You could get yourself hung for this. It was a felony, which meant you could get in theory hung. 
	Well, every state had a seditious libel. Every state. After the First Amendment. The Federalist party was unsatisfied with that because - it was our first party - they weren't harsh enough. So, they passed the Alien and Sedition Law of 1898. One of the major prosecutions that got a lot of publicity because it got a lowered sentence was a guy gets up in the town square with a sign that says, "Peace and retirement to the President." This is mild, right? I mean, this is nothing. That got him a jail sentence.
	When you think about it, criticizing the government is kind of our national pastime, isn't it? I mean, what would we do? We wouldn't have much in common to do together if we couldn't list and berate all the bad things the government does. All the governments probably. I say it in a way that makes it somewhat silly because I think it is, but what's interesting is in the 1930s and the 1960s, our cases abolished seditious libel. But you know we're the only country that's really done that. It's more limited to what he said. It's still true in England, but it's limited, so it's got to be something major. Not quite treason, but something really bad. 
	It's not the same thing as we had here. The Federalist were so upset about it, there was a guy named Matthew Lion who was a Republican - Jefferson Republican, not Bush Republican - who ran for Congress and the Federalist didn't like him, were opposed to him politically. Got a Federalist prosecutor prosecuted him. Truth wasn't a defense and they didn't make distinctions between opinions and facts. If your position was different than the government's, that's it. That was sedition. So, they had lots of fights over Federalist judges, Federalist juries. They had some jury rigging problems. This was a huge thing and a major part of our history. That is not erased until much, much later in our history. 
	Second, local control over speech in public spaces. That's the Davis case. That's why it was unanimous. Reverend Davis' case that I just told you about. No dissent and who wrote the opinion? This really got me. This is my student, very idealistic days, looking for the bad sheriff, right? The opinion in the Massachusetts Supreme Court and the analogy to the home written by Oliver Wendell Holmes. He's the hero of free speech, isn't he? What's going on? 
	Well, he changed like we all change, like society changed as a whole in major ways. There's a lot going on in between then. Later he's a Supreme Court Justice in 1919. That's 20 some years later. That's quite a bit of time. He starts writing these dissents, drives his wife nuts. She thought he was crazy to go out on a limb with all this free speech stuff. Lots of conflicts with friends because he also wrote the opinion in 1919 affirming the conviction of Eugene Debs, the Socialist Party leader who was convicted just for sending out at a meeting of his party the platform of the party, which opposed our entry into the First World War as just battles between elites in Europe. We Americans shouldn't die. Working people from those countries and our working people shouldn't be killing each other over this stuff. That was their position. In other context, we'd scoff at this and say, "Oh, some third rate country puts its opposition leader in jail for just expressing the views of his party." He got a 10 year sentence in 1920. He won many, many more votes, almost a million, for President than he ever had before from jail. He ran from jail.
	Two other doctrines, just briefly. One's called the bad tendency doctrine and one's called the constructive intent. This is the third element of the summary of 1800 Speech Law. Bad tendency doctrine said, if you write or say something that could have some bad effect some time in the future, it's not protected speech. Now, I was really broad there, wasn't I? But purposely, so. Let me give you an idea why. The second part, by the way, constructive intent, is a companion to it because under Anglo-American law, you can't convict anybody of a crime unless you also prove criminal intent. Constructive intent means you just presume it. Forget it. It's presumed that by saying those words your intent was to cause that bad thing. 
	Now, here's how this would go. Somebody would say, "Slavery is bad and should be abolished." Well, courts would say, "That could be heard by some people and they might believe it. They might tell it to other people. Black people might find out and they might have a slave rebellion." This is serious. This is the way some of these cases went. And then you're presumed to say it with the intent of causing a slave rebellion. So, there goes your, "I didn't intend that. I just don't like slavery. I think it should be abolished." That was not a defense. This was a generally accepted law. You see it in Supreme Court cases again until the 1930s. 
	Fourth element is, no prior restraints, particularly on the press. This is the only one of the four that's protective of speech, as we would think of it today. A lot of people tend to credit the First Amendment for that, no prior restraints doctrine. But it really goes back. The colonies had it and England had it even before that. So, it also is not a product of the constitution or the First Amendment. 
	Since the 1930s, speech rights are pretty much maintained. There was an extended exception period in the 1950s. It was kind of a anti-Communist retrenchment of all sorts of civil rights and civil liberties, but they came back to the '30s and '40s levels, and even somewhat beyond in the 1960s, until the mid-1970s. 
	Now, I feel I should at least note this. I don't want to overplay how important these rights are. They're extremely important, but keep in mind one thing when you look at it this way concretely and contextually. It does become apparent also that the rights that we have protected even today make sense in the 1930s context, where the way you would try to communicate to people is you go stand on a corner or go to the city hall or the market and you'd hand out a leaflet and say, "Here's what's going on. If you agree, come to a meeting, join our group." You do things like that. Now it's mostly write electronic. As I said before, the Supreme Court really made it impossible to give regular people some kind of access to the mass media. So, the mass media are immune from any kind of mass influence by people. The rights that we have, for instance picketing, and any of you I'm sure have experienced this if you've been part of movements or activism, it's very hard by picketing and demonstrating to say much more than you're really displeased with something. That's what gets communicated. 
	Most of the times it's hard to get on the media to get even an explanation of what it is you're upset about and they broadcast regularly without explaining that. They just show, "Oh, a 100 people stormed the train station the other day. Wow. And they had signs and police had to disperse them." There's hundreds of people with signs and police. No explanation. Why were they there? Did they have a grievance? Maybe it was a good grievance. Maybe it was one I agree with, I'll never know. So, it's come down to a kind of display of displeasure but no real entry, and this is the gist of it I think, into this discourse on the issues of the day that we always talk about that First Amendment created. That's just lacking in any serious way. 
	I'm going to stop there. Thank you.