a. Free speech and free press are rights couched in absolute
terms in the First Am. They are not subject to regulation in the
manner of factories, slums, apartment houses, production of oil, etc.
Libel should fall under the protection of the First Am. Yet in
recent years the Court has allowed numerous regulations to curtail
free speech—such as libelous speech—as long as the legislature
regulates this free speech “within reasonable limits”. This is an
ominous and alarming trend.
b. Because libel is protected by the First Am., the “Clear and
Present Danger” test should have applied to D’s speech. He should
have gotten a jury instruction on whether his speech was “Clear and
c. “Today a white man stands convicted for protesting in
unseemly language against our decisions invalidating restrictive
covenants. Tomorrow a Negro will be haled before a court for
denouncing lynch law in heated terms.”
1. Dave says that Douglas, who is clearly against the Ill. statute,
is illustrating how the statute, as applied to a white man in this
case by Illinois, may be applied in the future to “unpopular” groups,
such as blacks.
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