American Constitutionalism in Historical Perspective (packet)

Holmes & Brandeis dissent, focus on tendency of act to have neg effect on war effort. Utilitarianist view that pamphlets d/n have high likelihood of disrupting public policy. Law imposes severe sentence of 20 yrs in prison. Need degree of danger and imminency to be stronger (high probability of success and high gravity of the harm) Intent to disrupt war effort is no longer enough. Perverse result, those that are most worthy of protection will be repressed, those that no one listens to will be excused.

Why speech should be protected?

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   Seditious libel: in the core of what is protectible-- politicians speaking against the govt. Repentance after Sedition Act on 1789, anything like it (punishment for criticizing govt) should be per se unconstitutional. Only abridge freedom of speech in emergency when evil c/n be disproved thru time.
   
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   Fighting faiths: good to have ideas in competition, need open discussion to discover the truth. Skeptical about gov’t enforcement of certain beliefs. (faction). History of persecution by fighting faiths that were morally bankrupt and were squashing only moral voice.
   
3. 
   Free speech has value and rests on moral independence and utilitarianism. Conventional morality is just history, may be corrupt. Critical morality is utilitarianism, need free speech to look at corrupt morality.
   
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   Masses Publishing v. Patten: convicted under the act for publishing a satirical journal of political opinion attacking WWI’s legitimacy. Hand: speech should be protected by applying a two-prong test. This test is really less protective, looking just at the speech, not at its effect on the world (no false or willful misstatement of fact, legitimate protest and d/n incite disobedience)
   
   1. 
      Holmes still wants the court to continue to measure probability of success.
      
   2. 
      NOTE: D/n account for context and isn’t speech protective enough. Speech may not itself be problematic but if it’s in the right context, may be inciteful (test w/n protect Schenck, Abrams, Deb, etc.)
      
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