The 1st Amendment Defense
By: Ronald W. Chapman II
The First Amendment: Protections and Limitations
The First Amendment safeguards freedom of speech, religion, press, assembly, and the right to petition the government. However, these freedoms are not absolute. For instance, the First Amendment does not protect violent activities, imminent dangers of physical injury, or specific illegal activities. Additionally, it doesn’t apply to private entities like social media companies, which can control content on their platforms .
Crimes Where the First Amendment May Be a Defense
The First Amendment can be a defense in cases where the government is seen to restrict or penalize speech or expression unjustly. This includes situations where individuals are charged with offenses related to their speech or expression, such as in the Knox case, where the plaintiffs were compelled to contribute to political campaigns against their will.
Using the First Amendment as a defense in federal criminal cases is a nuanced and complex legal strategy. It’s often employed in cases involving free speech, freedom of religion, and freedom of assembly. Here are several notable federal criminal cases where the First Amendment played a significant role in the defense:
1. United States v. Eichman (1990): This case involved the federal Flag Protection Act of 1989. The defendants burned an American flag in protest, and their conduct was initially deemed illegal under the Act. However, the Supreme Court held that flag burning constitutes symbolic speech that is protected by the First Amendment.
2. New York Times Co. v. United States (1971): Known as the “Pentagon Papers” case, the New York Times and the Washington Post sought to publish a classified document about the Vietnam War. The Supreme Court ruled that the government could not prevent the publication, emphasizing the First Amendment’s protection of press freedom.
3. Brandenburg v. Ohio (1969): This landmark Supreme Court decision revolutionized the understanding of free speech protections under the First Amendment. The Court held that inflammatory speech, such as that of Ku Klux Klan leader Clarence Brandenburg, is protected unless it is directed to inciting, and is likely to incite, imminent lawless action.
4. Snyder v. Phelps (2011): Members of the Westboro Baptist Church were sued for their controversial and offensive protests at military funerals. The Supreme Court, however, ruled in favor of the church, stating that their speech was protected under the First Amendment, despite being hurtful and provocative.
5. Texas v. Johnson (1989): This case was similar to United States v. Eichman and also involved flag burning as a form of protest. The Supreme Court ruled that desecrating the American flag as a form of political protest is protected speech under the First Amendment.
6. Ashcroft v. Free Speech Coalition (2002): The Supreme Court struck down portions of the Child Pornography Prevention Act of 1996, ruling that virtual child pornography is protected under the First Amendment unless it is “obscene” or involves real children.
First Amendment Defenses That Failed
1. Whitney v. California: Anita Whitney was convicted under California’s Criminal Syndicalism Act for allegedly helping establish a group that advocated the violent overthrow of the government. The Supreme Court upheld her conviction as she did not base her defense on the First Amendment.
2. Near v. Minnesota: This case established the doctrine against prior restraint, where the Supreme Court invalidated a Minnesota statute that allowed suppression of publications deemed as a nuisance unless the truth was published for justifiable ends. This case exemplifies the limitations of government action against press freedom .
3. Brandenburg v. Ohio: The Court established the “clear and present danger” doctrine, stating that speech can be restricted if it incites imminent lawless action. This case demonstrates a boundary of First Amendment protections concerning speech inciting violence or illegal activities .
4. Salvail v. Nashua Board of Education: In this case, the First Amendment defense succeeded when a magazine was removed from a school library. The court ruled that the school board’s actions violated the plaintiffs’ First Amendment rights, as they failed to demonstrate a legitimate government interest to justify their actions .
The First Amendment plays a crucial role in federal criminal cases, providing significant protections for individual rights while acknowledging necessary limitations.
How the First Amendment Defense is Raised
In the federal criminal context, a First Amendment defense can be raised in various stages of the legal process, particularly through motions to dismiss and jury instructions.
1. Motion to Dismiss
The defense may file a pre-trial motion to dismiss the charges on the grounds that the alleged conduct is protected by the First Amendment. This motion is typically filed after the indictment but before the trial begins. The process involves the following steps:
• Legal Argument: The defense attorney must present a legal argument that the defendant’s actions are protected under the First Amendment. This involves citing relevant case law and constitutional principles.
• Evidentiary Support: In some cases, the defense may need to provide evidence or context to support the assertion that the actions in question fall under the protection of free speech, religion, assembly, or press.
• Judicial Review: The judge reviews the motion in light of the Constitution, precedent, and the specifics of the case. If the judge agrees that the conduct is protected, the charges can be dismissed at this stage.
2. Jury Instructions
If the case goes to trial, the defense can request specific jury instructions related to the First Amendment. These instructions are critical as they guide the jury in their deliberations:
• Drafting Instructions: The defense proposes instructions that explain how the jury should consider the First Amendment in the context of the case. These instructions must be legally sound and relevant to the charges.
• Legal Debate: Both the prosecution and defense may debate the appropriateness and wording of these instructions. The judge ultimately decides which instructions are given to the jury.
• Application by Jury: The jury uses these instructions to determine whether the defendant’s actions are protected by the First Amendment. This can be a decisive factor in their verdict.
Key Considerations
• Scope of Protection: It’s important to note that the First Amendment does not provide absolute protection. The defense must establish that the conduct falls within the scope of protected activities and does not cross into illegal actions (e.g., incitement to violence, true threats, or obscenity).
• Case-by-Case Basis: The application of the First Amendment is highly contextual. The specific facts of each case and the current state of legal precedent play crucial roles.
• Legal Expertise: Successfully raising a First Amendment defense requires detailed legal knowledge and expertise, particularly since constitutional law is complex and often subject to interpretation.
In summary, raising a First Amendment defense in federal criminal cases involves strategic legal maneuvers both at the pre-trial stage (through motions to dismiss) and during the trial (through jury instructions), requiring a nuanced understanding of constitutional law and its application in diverse contexts.