17 June 1997
Source: Mail list Cyberia-L@listserv.aol.com

Date:         Tue, 17 Jun 1997 10:32:02 -0400
From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Subject:      Need Expert Opinion that Article Is Covered by 1st Amend
Comments: To: Fight Censorship <fight-censorship@vorlon.mit.edu>
Comments: cc: "Gino J. Scarselli" <gscarsel@mail.multiverse.com>,
          Raymond Vasvari <freespeech@mail.multiverse.com>,
          Kevin Francis O'Neill <koneill@trans.csuohio.edu>,
          Spencer Neth <sxn6@po.cwru.edu>,
          "Melvin R. Durchslag" <mrd@po.cwru.edu>,
          "Jonathan L. Entin" <jle@po.cwru.edu>, Irene Graham <rene@pobox.com>,

I am forwarding an appeal by Irene Graham for legal experts to express
their opinion that in the United States a satirical article in a student
newspaper giving instructions on shoplifting would be protected from
censorship by the First Amendment.

To give you a sense of what is at issue, here is the second paragraph
of the article:

  Within capitalism, most of us are either (1) alienated from our labour
  and hence dependent on the ruling classes for commodities as basic as
  food and clothing, (2) excluded from the division of labour, in which
  case we are likewise dependant on the State, or (3) performing unpaid
  and/or unrecognised labour and hence dependant on patriarchal relations
  for food, clothing, etcetera. In any case, our access to resources is
  severely limited by contemporary relations of domination. One partial
  solution to this problem may be to STEAL.

A copy of the article may be found on my web server at

<http://samsara.law.cwru.edu/comp_law/10-shoplifting.html> and also at


Australia has adopted a uniform system of censorship that applies to all
publications and the censors had classified this article as ``Refused
Classification'', which is their most censorious rating.  An appeal
was taken from this classification to the Federal Court of Australia and
that court affirmed the Refused Classification classification, in part
on the ground that even in the United States with its---the court does
not quite say ``ridiculous''---First Amendment this article would not
be constitutionally protected.  The Federal Court's opinion is available
at <http://www.austlii.edu.au/au/cases/cth/federal_ct/1997/474.html>.

Here is the relevant portion of that court's opinion:

  The freedom enjoys its widest protection under the First Amendment to
  the Constitution of the United States which provides that Congress may
  make no law "abridging the freedom of speech". The Supreme Court of the
  United States has always accepted that the freedom is not absolute and
  that there are certain classes of speech which have "never been thought
  to raise any constitutional problem": see Chaplinsky v. New Hampshire
  315 US 568 (1942) at 572 per Murphy J delivering the opinion of the
  Court. In that regard, it has been accepted that the First Amendment
  would not restrict the "power and duty of the State to take adequate
  steps to preserve the peace and to protect the privacy, the lives and
  the property of its residents...": see Thornhill v. Alabama 310 US 88
  (1940) at 105 per Murphy J. By way of example

  The most stringent protection of free speech would not protect a man
  in falsely shouting fire in a theatre, and causing a panic. (see:
  Schenck v. United States 249 US 49 (1919) at 52 per Holmes J.)

  One of the acknowledged interests which may restrict the
  constitutionally protected freedom of speech is the need to protect
  against words which may induce the commission of crime. Dr Alexander
  Meiklejohn states in his work Free Speech and Its Relation to
  Self-Government (1948) at 18 that the legislature has the right and
  duty to prohibit certain forms of speech:

  Words which incite men to crime are themselves criminal and must be dealt
  with as such.

  See also Brandenburg v. Ohio 395 US 444 (1969) at 447.

  Counsel for the applicants could not point to any instances in the
  free speech jurisprudence of the United States or other jurisdictions
  where constitutional protection is given for speech which might be
  likely to cause or induce the commission of a crime.

I have supplied Ms. Graham and the person who is preparing the brief with
a copy of the District Court's opinion in the Paladin Enterprises case and
will shortly be sending them my opinion to the effect that an article
like the one at issue would without question be protected from censorship
in the United States under the First Amendment.  But I am sure that
additional opinions, especially from those who teach or practice
Constitutional Law, would be appreciated.

Please send your opinons to: dlawson@onthe.net.au and
rene@pobox.com (Irene Graham).

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

------begin forwarded message

From: rene@pobox.com (Irene Graham)
To: "Peter D. Junger" <junger@samsara.LAW.CWRU.Edu>
Subject: Re: Here is the Lexis report of the Paladin case
Date: Tue, 17 Jun 1997 22:23:16 +1000


Thanks very very much for the report. It seems absolutely relevant to
me, but then IANAL.  I'm advised Counsel is being briefed tomorrow and
sometime soon thereafter they'll decide whether to appeal.

I hesitate to ask you for further assistance, small though I hope it is.
However, I sometimes get the feeling that few solicitors here have heard
of the First Amendment - or at least don't understand what it is at all.

The guy who's helping prepare the brief for the barrister wants to know
whether I know a US lawyer who would be prepared to comment, even off
the record, on whether or not the shoplifting article would be protected
speech in the US. (I suspect he may just want to feel more confident when
briefing the barrister.) You seem the most likely candidate - given you
mirrored the page, I assume you have already read it and the tone of
your email to your colleagues gave me the impression you had no doubt.

If so, and you can find the time and be bothered, I'd be very grateful
if you'd drop him a note: dlawson@onthe.net.au  The end result of this
case is either going to be very good, or very bad, for free speech in Oz,
there isn't any middle ground.

Again, thanks for all your help.

Best wishes

---------End forwarded message