FREEDOM OF SPEECH

All together, there are six (6) rights guaranteed by the First Amendment -- religion, speech, press, assembly, association, and petition -- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Collectively, they protect what is known as the freedom of expression (technically consisting of assembly, petition, press, and speech). Association is a derivative right from speech, assembly, and petition. Religion has more to do with the freedom of conscience than freedom of expression. This lecture deals with the right to free speech, or what is more commonly referred to as freedom of speech.  

First of all, no one takes the literal command "no" to mean no. Justice Hugo Black (1937-1971) was the last one to believe that "Congress shall make no law" means Congress shall make no law. Such an absolutist interpretation of the First Amendment leaves no restrictions on obscenity, libel, or slander. More predominant interpretations look at speech as distinct from speech plus (speech plus other conduct, commonly called demonstrations or protests), conduct, or the effects of speech. Congress has every right in the world to control these things. It's also possible to draw upon the social contract theories of the founding fathers to understand that the First Amendment was intended to serve several important social functions:

(1) educational function (to advance knowledge and potential for self-fulfillment)
(2) safety valve function (to speak openly without fear of government reprisal)
(3) truth-seeking function (to determine truth thru debate and adversity)
(4) social obligation function (to learn what is important to say)

These social functions point out that the First Amendment is about protecting the public good rather than individual freedom. Freedom of speech in America has NEVER been absolute. Ever since The Alien and Sedition Act of 1798, there have been a number of laws restricting scandalous, malicious, inflammatory or false utterances, particularly any attempting to defame or bring down the government, or help its enemies. Many First Amendment cases have dealt with the banning of Communist or Socialist expression (outside of the protected classroom context), but they have had wider implications by establishing various tests for all kinds of speech, as follows.

During World War I, several cases challenged Selective Service and Espionage laws. The 1919 decisions in Schenck v. U.S. and Abrams v. U.S. established the Clear and Present Danger Test:

The Clear and Present Danger test - The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre. It does not protect a man from uttering words that have the effect of force. The question in every case is whether the words in such circumstances are such as to create a clear and present danger that will bring about evils the government has a right to prevent. The First Amendment exists to protect the public good as well as individual expression. 

In the 1920s, two cases, Gitlow v. New York (1925) and Whitney v. California (1927) established an even more conservative test - the Bad Tendency Test:

The Bad Tendency test - The freedom of speech does not protect disturbances to the public peace, attempts to subvert the government, inciting crime, or corruption of morals. The danger is none the less real and substantial because the effect of a given utterance cannot be seen. Just as with the offense of conspiracy, or other preparatory steps, the government need not wait until the spark has kindled the flame. It can act toward any threat to public order, even those that do so only remotely.

It's important to note that the above made membership in any subversive organization punishable in itself. Tougher laws followed, such as the Smith Act, which made it unlawful to even joke about overthrowing the U.S. government. Literature was banned, such as the Communist Manifesto which simply said "Workers of the world unite." The 1920s, 30s, 40s, and 50s were also hard years for labor unions which protested working conditions. Free speech wasn't even considered a preferred freedom until 1938 with U.S. v. Carolene Products, and then, it was only mentioned in a footnote (which later became a basis for the strict scrutiny doctrine). 

Although the preferred freedom approach helped overturn a couple of cases, this liberal tendency was short-lived because, by 1951 in Dennis v. U.S., the Court was articulating a revised version of the clear and present danger test - the Clear and Probable Danger test:

The Clear and Probable Danger test - In each case, we must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. Contexts too numerable to ponder exist and events are often too remote to foresee. Cases must be decided on an ad hoc, case-by-case basis, considering that the government's reasons for regulation are compelling.

The Dennis decision was significant for a number of reasons. It fueled McCarthyism and much of American's Cold War hysteria over Communist spies. It came close to allowing authorities to go after academics who taught Marxist-Leninist theories in the classroom (actually, New York did go after academics in 1952 with its so-called Feinberg laws). Dennis sparked dissent on the Court, and a couple of liberal dissents would form the basis for much of what followed in the more liberal 1960s. 

Once the Red Scare was over and with the advent of the liberal Warren Court Era (1953-1969), communists, labor unionists, and other so-called subversives enjoyed a few minor legal victories. The case that brought these victories to a head, and overturned the Bad Tendency test once and for all, was Brandenburg v. Ohio (1969). It was a different kind of case for the Court, involving a KKK leader advocating the return of all blacks to Africa and all Jews to Israel. By unanimous vote, the justices defended the Klan's right to say such things at rallies as long as there was no incitement to action, to wit, the Brandenburg Test was developed:

The Brandenburg test - Merely teaching or advocating unpopular ideas must be distinguished from teaching or advocating the duty, necessity, or propriety of acting on those beliefs. The right to speak and organize cannot be abridged no matter if the group's message and purpose are repugnant to American values (such as KKK speech). In order for government to intervene, the speaker must subjectively intend incitement (imminent evil), use words which are likely to produce action (imminent action), and openly encourage or urge incitement (suggesting, for example, it's a duty to commit a crime). 

Not only did the Supreme Court defend the right of repugnant groups like the KKK to express themselves, but a series of related cases in the post-1969 aftermath of Brandenburg presented a problem which has come to be known in Constitutional Law as "The Heckler's Veto." This problem scenario involves the possibility that some heckler in the audience could get the speaker to shut up (or more accurately, get the police to shut him up) simply by threatening a violent audience reaction. The Court came down on the side of defending the speaker in such instances - requiring police to protect speakers by rounding up such hecklers.

In the 1960s and 70s, the issue was symbolic speech. Antiwar protesters were not so much saying things as doing things, like burning the flag, burning draft cards, holding sit-ins, love-ins, and the like. One of the first cases which considered whether symbolic speech such as this deserved constitutional protection was the 1968 case of U.S. v. O'Brien, hence the O'Brien Test:

The O'Brien test - Governments must have a substantial government interest that is not related to suppressing the message before contemplating action restricting expressive conduct or symbolic speech. (e.g., it is unconstitutional to have a flag desecration law if the only reason for having it is that people should respect the flag; i.e., there must be other reasons such as noise, traffic congestion, trespass, disorderly conduct, breach of peace.)

O'Brien stands as the most widely-used test. The Court was providing absolute protection to the message, but not the conduct. O'Brien involves some deep psychological issues as the critical test for separating message from conduct. The law is waiting for psychology to resolve thought/action and attitude/behavior controversies. Thought and belief are not subject to government control, but speech is often the link between thought and action. The current situation is that symbolic speech, like flag-burning, is constitutionally protected. In a narrow 5-4 majority with Texas v. Johnson (1989), the Court upheld the right to burn the flag, regardless of its symbolism, as long as a disturbance of the peace does not occur. Oddly enough, two of the Court's conservatives (Scalia and Kennedy) voted with the majority, and the strongest liberal on the Court (Stevens) dissented. In the public uproar that followed, President Bush and Congress passed the Flag Protection Act of 1989, which was quickly declared unconstitutional by the Supreme Court in 1990. 

TIME, PLACE, AND MANNER RESTRICTIONS

As the preceding cases and tests illustrate, people who want to protest or express their views do NOT have a constitutional right to do so whenever, wherever, and however they please. There are time, place, and manner restrictions. We'll deal a bit later with place under the topic of forum analysis. For now, we shall distinguish between areas that are definitely beyond any First Amendment protection (unprotected speech) and areas that may be beyond First Amendment protection (semi-protected speech).

UNPROTECTED SPEECH

The following areas have NEVER been protected by the Constitution. There are NO barriers to government interference or regulation. The ONLY constraints on government are that officials must be engaged in a legitimate purpose (doing their duty), the law to be enforced must not be too broad or vague (void for vagueness), the law must be content neutral (not impinging upon a suspect class), not intervene before the fact unless extraordinary circumstances exist (prior restraint), and not have a "chilling effect" (which makes people fearful of engaging in legitimate activities). 

(1) OBSCENITY

Despite having grappled with the definition of this term, the Court has consistently ruled that obscenity is not protected. The English common law definition is "anything which depraves or corrupts minds open to immoral influence." For many years, this definition was taken to mean that the crime of obscenity consisted of distributing material to youth which might have an immoral impact. To this day, anything directed to, or involving youth (such as child pornography) brings down a quick, suppressive response from government. Organized pornography didn't start in America until the 1950s, and that's when the Court started to get involved, and it left a lot of power in the hands of juries to decide.

The Roth test - from Roth v. U.S. (1957) defined obscenity as material calculated to debauch the minds and morals of those in whose hands it might fall. The impact upon the average person must be determined. The test is the effect of a whole work (not one picture or passage) on the average person applying contemporary community standards (not national standards) to determine if the work is without redeeming social importance or patently offensive.  

The Miller test - from Miller v. California (1973) defined obscenity as appealing to prurient interests (anything morbid, abnormal, or disgusting), involving hard core acts which demean women, and lacking serious literary, artistic, political, or scientific value. It kept the Roth components of average person, work taken as a whole, and contemporary community standards. An interesting procedure at this time was that police could not seize all copies to halt sale, just enough evidence for trial. Procedure today requires extreme degree of specificity in search warrant, otherwise VOID For VAGUENESS doctrine invalidates the law. However, Miller remains the key test for determining obscenity.

(2) LIBEL

If someone believes that a defamation of their character has occurred by the publication of a known falsehood, they can bring a civil action of libel against the offending party and collect both compensatory and punitive damages. Libel and libelous statements are beyond First Amendment protection. Truth is the only defense to libel; good motives don't matter; half-truths are as bad as lies. Public officials are held to a higher standard than private citizens when proving libel because the Constitution says people can speak out against government, whether true or false (unless the libel is seditious or treasonous). 

The New York Times test - from New York Times v. Sullivan (1964) requires that actual malice (knowledge that it was false or reckless disregard of whether it was false or not) be present, and that there be some presumed damage to reputation, profession, business, charge of an indictable offense, or tendency to bring an individual into public contempt. 

The Hustler Magazine test - from Hustler Magazine v. Falwell (1988) requires that not only public officials but public figures in general must prove actual malice, or intentional infliction of emotional distress, even if no damage is done to reputation. The test is whether a parody, cartoon, or something clearly for entertainment purposes is outrageous in its intent.

(3) FIGHTING WORDS 

There's a long history of cases involving citizens calling cops "assholes" and other terms, which usually results in some altercation with later allegations of police brutality. Of course, speech that directly threatens the officer's safety ("I'm coming down to the station and kill you") or clearly hinders the officer's performance of their duties is criminal, but certain types of profanity, name calling, and obscene gestures are also not constitutionally protected. There's too many examples to list them all, but most of the unprotected language involves four-syllable words like "Damn you"; "F*** you"; and "You fascist".

The Chaplinsky test - from Chaplinsky v. New Hampshire (1942) holds that a state can lawfully punish someone for the use of insulting "fighting words" which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

The Cohen test - from Cohen v. California (1971) involves whether "fighting words" can be put on a sign or clothing, in this case the F-word on a jacket. The test is whether others can avert their eyes easily enough and do not experience a direct insult in terms of offensiveness. 

The Lewis test - from Lewis v. City of New Orleans (1974) defined "fighting words" as anything abusive and insulting, under face-to-face circumstances likely to provoke an immediate violent response. Police are held to a higher standard of being able to take more abusive language than the average person. There must be some conduct (spitting, moving one step closer, pointing a finger) along with speech that is expressed violently. See this graphic for an example of the speech-conduct.

(4) NUDITY

Local law enforcement has always had a powerful role to play in regulation of red-light districts, nude bars, strip clubs, and adult movie theatres. Gross and open indecency has always been a common law crime. Most of the cases here have involved the display of female breasts and buttocks in ways that a person cannot avert their eyes. The Court has NOT banned all nudity, however, and in fact has declared that nudity by itself cannot be declared obscene simply to protect minors. Adequate protections or other restrictions must exist for such activities to be carried out.

The Erznoznik test - from Erznoznik v. City of Jacksonville (1975) involved the showing of an adult movie at an outdoor drive-in movie lot. The screen at the drive-in was such that passerbys could easily view it.  Concern for highway safety notwithstanding, the Court ruled that the theatre had to either restrict its movie offerings or construct high, protective fencing.

The Barnes test - from Barnes v. Glen Theatre, Inc. (1991) involved a South Bend, Indiana club known as the Kitty Kat Lounge which provided live nude entertainment which private customers viewed behind glass windows. The Court ruled that such arrangements are appropriate as long as performers wear a scant amount of clothing (such as pasties and a G-string) to become slightly less graphic. Generally, the government should allow non-lascivious display of genitalia as a form of erotic expression, as long as it doesn't involve sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, sodomy, or degradation to women. It's the effect on the customers in soliciting prostitution that the government should be concerned about.

SEMI-PROTECTED SPEECH

There are in-between categories between free speech and unprotected speech. Generally, governments have a free hand in how they want to go about regulating these areas. The following areas may or may not trigger a constitutional protection, and may or may not involve situations which encroach upon the rights of others (protestors who block entrances), burdens on government functions (free flow of passerbys), and forms of expression that may or may not take a violent form or lead to criminal activity.

(1) HATE SPEECH

Hate is obviously a belief or idea, and even if false, the First Amendment recognizes no such thing as a false idea. There are certain activities which cross the line, and others that don't. The current Justices are sharply divided on the whole issue of hate crime.

The Garrison test - from Garrison v. Louisiana (1964) requires hate-motivated speech will be protected if the speaker honestly speaks out of hatred, and honestly believes they are contributing to the free interchange of ideas and the ascertainment of truth.

The R.A.V. test - from R.A.V. v. City of St. Paul (1992) involved teenagers who burned a cross inside the yard of an African-American family. The Court ruled the teenagers could not be punished under an overly broad hate crimes statute and that since the conduct contained a political message, it should be protected, but that hate crimes in general should be dealt with in other ways than bringing the First Amendment into the picture.

Suppose, for example, you participated in a discussion board, chat room, or other Internet forum, and someone else in that forum lashed out at you, calling you names and making stuff up about you. Well, that's called Internet defamation. Defamation is an insult to character which is less serious and less actionable than libel or slander. In the world of rapidly changing Cyberspace Law, one of the standing doctrines is the following. 

The Gertz test - from Gertz v. Welch (1974) requires that private individuals who feel defamed in some communications medium must first remedy themselves of every opportunity in that medium for self-help, correcting the error or minimizing its impact on reputation. The Court must balance the need for absolute protection of the medium with consideration for those who lack effective opportunities for rebuttal.

(3) COMMERCIAL SPEECH

Commercial speech is that which is aimed at quickly separating a sucker from their money. Examples include panhandling, telemarketing (if not at commonsense hours), toxic products (if no health warnings about potential hazards are listed), lawyer advertising (ambulance chasing), and false advertising (such as airlines promoting one rate and charging you another).

The Liquormart test - from Liquormart, Inc. v. Rhode Island (1996) involves billboard advertisements for alcohol at low prices, and the Court upheld the right of businesses to do so as long as ads were truthful and not misleading. Any "fortuitous" increases at the point of sale would have to be regulated by other consumer protections than the First Amendment. Freedom of consumer choice does not involve consideration of whether alcoholics would forgo other necessities in order to meet marginal price increases. 

(4) CAMPAIGN FINANCE REFORM

One of the big issues in political corruption involves whether politicians can get around the law's limitations on contributions and restrictions by how they speak to attract money. Even the appearance of corruption is a matter of serious interest to the Court. Current law prohibits contributions on the basis of any candidate's stance on an issue. Money can only be contributed which expressly calls for a politician's election or defeat. 

The Buckley test - from Buckley v. Valeo (1976) holds that there should be no limitations on spending from a candidate's personal income and that such private money may be used to promulgate views which may attract contributors on certain issues. Clear-cut invitations for money are prohibited, however, out of fairness to less wealthier candidates. Loopholes in contributor limits ($1000 per person) which allow more than the limit in vague terms such as "relative to" a candidate are constitutionally infirm.

Since much of Free Speech law is confusing, and perhaps the most confusing part of it is the criminal law aspect, the following table attempts to summarize what is not a crime and what is a crime. 

FORUM ANALYSIS

Forum Analysis is the name given for an approach used by the Supreme Court in resolving many First Amendment controversies. It is based on considerations other than the message of speech. "Forums" are the communications mediums in how and where speech is communicated, such as handbilling, parading, picketing, marching, streets, sidewalks, and parks.

The Court first classifies the location as falling into one of two categories: public forums & nonpublic forums. Public forums receiving special protections are called traditional public forums. Other public forums consist of public facilities that have acquired public forum status and are called public forums by designation. Nonpublic forums are the government's business property. The term quasi-public forums is reserved for private business places.

INTERNET RESOURCES:
American Civil Liberties Union and their Free Speech Issues Page
Censorship and Banned Books A-Z
Cyberspace Law Institute
Freedom Forum Online
The Free Speech Movement Archives
Jean Goodwin's Lecture Notes on Free Speech Controversies
Index for Free Expression
People for the American Way

PRINTED RESOURCES:
Chafee, Z. (1941) Free Speech in the United States. Cambridge: Harvard Univ. Press.
Cox, A. (1981) Freedom of Expression. Cambridge: Harvard Univ. Press.
Farber, D. (1998) The First Amendment. NY: Foundation Press.
Gardner, T. and T. Anderson (1996) Criminal Law: Principles and Cases, 6th ed. St. Paul: West Publishing Co.
Randall, R. (1989) Freedom and Taboo. Berkeley: Univ. of California Press.
Smolla, R. (1992) Free Speech in an Open Society. NY: Knopf.
Sunstein, C. (1993) Democracy and the Problem of Free Speech. NY: Free Press.
Van Alstyne, W. (1984) Interpretations of the First Amendment. Durham: Duke Univ. Press.
Zimring, F. and G. Hawkins (1991) Pornography in a Free Society. Cambridge: Cambridge Univ. Press.

Last updated: 02/22/01
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