Interpreting the First Amendment
Transcript of Interpreting the First Amendment
From Electronic Media Law and Regulation 5th Ed. By Kenneth C. Creech Published by Focal Press, Boston MA (2007) For Scholarship Only. 2 Interpreting the First Amendment History of Free Speech in America The English Heritage The development of the law of free speech and press in the United States, like most American law, has its roots in England. The British model was imported to the colonies and included a tradition that supports punishment for the publication of seditious libel. Prohibition against seditious libel began in 1275 with the enactment of De Scandalis Magnatum, which provided for imprisonment of anyone who disseminated false statements about the king that caused discord between the king and his subjects. The statute of De Scandalis Magnatum, as eventually administered by the infamous Star Chamber, was responsible for the evolution of English censorship and seditious libel law. The original Star Chamber was part of the king’s council, which sat in a chamber of stars (or camera stellata) at Westminster and was first called the Star Chamber during the reign of King Edward Ill in the fourteenth century. In 1585, the Star Chamber passed an ordinance that required all publications to be licensed and printed by the Star Chamber-‐sanctioned Stationer’s Company. The Star Chamber controlled all printing and publishing in England until it was abolished by the Long Parliament in 1641. During this time, the Star Chamber meted out punishments to violators as it saw fit. In one case, an author who expressed a dislike for acting and actors was fined £10,000, given a sentence of life in prison, branded on his forehead, and had his nose slit and his ears cut off. The Star Chamber viewed the criticism of actors as an insult against the queen (and hence the government) because she had recently taken part in a play.1 Although the Star Chamber ceased to exist in 1641, the English Parliament continued to harass printers and publishers through the Stationer’s Company and other forms of licensing. No work could be printed legally without the approval of the stationers, who issued licenses. The stationers served as absolute censors and refused to allow publication of material deemed offensive to them. It should be noted that this concept of censorship is not limited to archaic or authoritarian governments. In spite of the First Amendment, censorship of this kind can be found as late as the 1960s in the United States. Some American cities had film licensing boards that screened motion pictures to determine their suitability for exhibition. Many of these licensing boards exercised capricious judgment and refused to grant exhibition licenses for a variety of reasons. For example, the one-‐person licensing board in Memphis, Tennessee, refused to allow theaters in that city to show Ingrid Bergman films, noting that her “soul was as black as the soot of hell.”2 The censor found Miss Bergman’s bearing of a child out of wedlock to be morally reprehensible.
Under the British Licensing Acts of the period, authors and printers of “obnoxious works” were hanged, quartered, mutilated, or simply fined and imprisoned “according to the temper of the judges.”3 It was in protest of this licensing act that John Milton wrote the famous Areopagitica in 1644. Milton’s call for a free press in England is important to Americans, because his reasoning served as the philosophical basis for the marketplace-‐of-‐ideas theory of First Amendment interpretation. Milton wrote, And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter?4 The sentiments expressed by Milton in the seventeenth century found their way into American law 275 years later in the dissenting opinion of Justice Oliver Wendell Holmes in Abrams v. United States. In Holmes’s view, truth is best attained when all ideas are free to compete in the marketplace for acceptance. Therefore, any restraints by government tend to obscure the search for truth. The English Licensing Acts were renewed in 1662, in 1685, and again in 1692. Essentially, the acts forbade all printing without a license and gave the king’s agents the authority to search all houses and shops in which they suspected unlicensed books were being printed and to seize them. When the licensing acts expired in 1695, they were not renewed by the British Parliament. Although this signaled the end of press censorship in England, printers were by no means free to publish material that might be deemed seditious or treasonable. Nevertheless, newspapers began to flourish and the press became an outlet for political expression. Because this expression was often critical of those in power, the governing bodies sought new ways to silence the press. A return to licensing was proposed, but rejected. Instead, Parliament adopted a less direct form of censorship when it passed the Stamp Act in 1712. The Stamp Act was designed to eliminate the small newspapers that published the kind of material most disturbing to the government. The Stamp Act placed a stiff tax on newspapers, pamphlets, advertising, and paper. The act required that publications be registered with the government, which made it easier for those in power to control the dissemination of information. This means of controlling printed material in England continued until 1855. Punishment for seditious libel continued as common law throughout the eighteenth and the first half of the nineteenth centuries. Publishers were punished for criticizing foreign policy, the conduct of the king, or any other public official. This criticism was thought to weaken the authority of the government. The truth or falsity of the publication was immaterial. Although Fox’s Libel Act of 1792 allowed a jury to acquit a publisher charged with sedition if it thought the publication was not seditious, it was not until 1843, with the passage of Lord Campbell’s act, that the modern concept of freedom of the press began to formulate. This act made truth a defense in libel claims. This defense was already legal in America at the time. Twelve years later, the Stamp Act was repealed and freedom of the press was realized in England.
The American Experience The issues of free speech and press in America essentially paralleled developments in England, but moved much more quickly. Licensing in the colonies followed the same pattern as in England. In 1662, Massachusetts appointed two licensers, without whose permission nothing could be printed. In 1664, the colony passed a law that established Cambridge as the only legal site for printing presses, which were regulated by the licensers. The Boston News Letter, which was published between 1704 and 1776, carried the phrase “Published by Authority” under its nameplate. This meant that the paper contained stories approved by the colonial governor. Licensing was also the rule in Pennsylvania and Virginia, where even the laws of the colony could not be printed without a license. Between 1639 and 1776, numerous publishers and editors were prosecuted in the colonies on charges ranging from criticism of religious doctrines to seditious libel. One of the most celebrated trials was that of John Peter Zenger in New York. Zenger was the printer of the New York Weekly Journal, a newspaper devoted to the opposition of controversial New York Governor William Cosby. The Journal was the first independent political paper published in America. Oddly enough, although the editor of the paper, James Alexander, wrote most of the material critical of the governor, Zenger (the printer) was jailed for seditious libel. Zenger was charged with printing . . . false news and seditious libels, both wickedly and maliciously devising the administration of His Excellency William Cosby, Captain General and Governor in Chief to traduce, scandalize and vilify both His Excellency the Governor and the ministers and officers of the king and to bring them into suspicion and the ill opinion of the subjects of the king residing within the Province. . . .5 The New York Weekly Journal had been published for about six months before Zenger’s arrest. Among the items the governor found objectionable is the following passage: We see men’s deeds destroyed, judges arbitrarily displaced, new courts created without consent of the legislature by which it seems to me trial by jury is taken away when a Governor pleases, and men of known estates denied their votes contrary of the received practice, the best expositor of any law. Who is there then in that Province that can call anything his own, or enjoy any liberty, longer than those in the administration will condescend to let them do it?6 Andrew Hamilton, a Quaker lawyer from Philadelphia, defended Zenger. In a surprising move, Hamilton admitted that Zenger had published the materials, but in an eloquent argument to the jury, he asserted that the statements about the governor were true. At this time, truth was not a defense in libel cases; however, so inspiring was Hamilton’s argument that the jury returned a verdict of “not guilty.”
The Zenger case helped widen the growing gap between England and the American colonies by setting a precedent that allowed criticism of colonial governors and other authorities. As Vincent Buranelli points out in his book, The Trial of Peter Zenger, no longer could one say that resistance to crown officials was always wrong.7 America had begun to clear a path leading toward her own legal system. In reality, the impact of Zenger had a more immediate effect on Britain. By 1738, accounts of Andrew Hamilton’s address to the jury were apparently gaining much attention in the legal community. The major principles of the case—truth as a defense in libel actions and the jury has the right to decide both “fact” and “law”—became law in Britain in 1792 with the Fox Libel Act. America responded with a federal statute in 1798. Another major influence on the development of American legal philosophy was the English legal authority William Blackstone. Blackstone’s Commentaries on the Laws of England was widely read by students and barristers alike in England and in the colonies. Although dismissed by some as elementary, Blackstone’s view of liberty of the press served as a benchmark for courts in Britain and America. Blackstone wrote, The liberty of the press is indeed essential to the nature of a free State, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done . . . is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish . . . any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.8 Blackstone wrote these words in 1769, but they are actually a fairly accurate reflection of twentieth-‐century American interpretations of the First Amendment. In fact, the Supreme Court relied on Blackstone’s concept of no “previous restraint” in the 1931 landmark case Near v. Minnesota. In Near, the Court ruled that prior or previous restraints on the press violate the First Amendment in most cases. Blackstone also espoused what would later evolve into the Clear and Present Danger Doctrine, when he noted that free speech is not protected when the “peace and good order” are threatened. In 1791, the states ratified the first ten amendments to the new U.S. Constitution. The First Amendment forbade Congress from making laws that would abridge freedom of religion, speech, and the press. Although written in absolute terms, the First Amendment has never been interpreted by the Supreme Court to mean that individuals have the right to say anything they please, any way they please,
anywhere or under any circumstances. In fact, Congress was quick to limit freedom of speech and freedom of the press in the new nation when it passed the Sedition Act of 1798. The Sedition Act provided punishment for the publication of false, scandalous, and malicious writings against the government, either house of Congress, or the president, if the writings were published with the intent to defame any of these groups or incite the people to rebellion. A companion law, the Alien Act, allowed the president to deport any alien judged dangerous to the security of the United States. The impact of Ζenger and England’s Fox Libel Act were felt, however, because there was precedent for using truth as a defense and the jury was empowered to determine criminality. This defense was strengthened after the expiration of the Alien and Sedition Acts during the presidency of Thomas Jefferson. Ironically, the defense of truth was used by the editor of a newspaper charged with libeling Jefferson. In another unusual twist, Alexander Hamilton, who generally opposed the First Amendment, argued brilliantly in favor of press freedoms in the case against his adversary, Thomas Jefferson. The Sedition Act expired in March 1801 and was not renewed. Except for Lincoln’s unofficial suppression of critics of his policies during the Civil War, there was no major government action raising free speech issues until the First World War. The First Amendment in the Twentieth Century When America entered World War I, Congress passed the Espionage Act of 1917. The Espionage Act was designed to protect against spying by foreign countries and to protect military secrets. The act was amended in 1918 to include what is commonly called the Sedition Act (not to be confused with the Sedition Act of 1798). This amendment dealt more with advocacy, speaking, teaching, printing, and inciting than did the original act. Although the Sedition Act was repealed in 1921, the Espionage Act remained in force into the 1940s. These especially harsh restraints on press and speech freedoms were the result of internal suspicions during the war with Germany (the number of Americans with a German heritage led some to question loyalty), the controversy generated over conscription of troops, and the growing threat of Bolshevism. During this time, more than 1,900 people were prosecuted for alleged subversion and criticism of the national government. Why was the suppression of First Amendment freedoms tolerated during this time? Legal scholar Zechariah Chafee writes that it may have been because many Americans viewed the freedoms guaranteed by the Founding Fathers as no more than abstract doctrine. The First Amendment had no hold on people’s minds because no live facts or concrete images were then attached to it. Like an empty box with beautiful words on it, the Amendment collapsed under the impact of terror of Prussian battalions and terror of Bolshevik mobs. So the emotions generated by the two simultaneous cataclysms of war and revolution swept unchecked through American prosecutors, judges, jurymen, and legislators.9
It was during this tumultuous time that the initial First Amendment cases reached the Supreme Court. It was also during this time that the first serious interpretations of the meaning of the First Amendment were attempted. With the development of case law, the First Amendment took on a new character—that of living law. No longer was the First Amendment an ethereal concept untouched by the courts of the land. In Schenck v. United States, the Court began the arduous task of shaping concrete images from abstract doctrine. The Clear and Present Danger Test Schenck was the first and most influential case dealing with significant First Amendment issues to come before the Supreme Court. In this case, Justice Holmes formulated the “clear and present danger” test for determining when an individual’s First Amendment rights may be abridged. Schenck had been charged with violating the Espionage Act of 1917, because he distributed leaflets that urged men not to register for the draft during World War I. Justice Holmes delivered the following opinion of the Court: Schenck v. United States, 249 U.S. 47 (1919) ☐ This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917 . . . by causing and attempting to cause insubordination &c, in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service . . . a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to wit, to use the malls for the transmission of matter declared to be non-‐mailable by title 12, section 2, of the Act of June 15, 1917. . . . The document in question upon its first printed side recited the first section of the Thirteenth Amendment said that the idea embodied in it was violated by the Conscription Act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said “Do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for repeal of the act. The other and later printed side of the sheet was headed “Assert Your Rights.” It stated reasons for alleging that any one violated the Constitution when he refused to recognize “your right to assert your opposition to the draft,” and went on “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up people of other lands, and added that words could not express the condemnation such cold
blooded ruthlessness deserves . . . winding up “You must do your share to maintain, support and uphold the rights of the people of this country.” Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point. But it is said, suppose that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-‐known public men. . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends on the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. [Emphasis added by the author.] . . . When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.10 Schenk was found guilty of violating the Espionage Act. Justice Holmes articulated the Clear and Present Danger Doctrine as a means of setting the limits of First Amendment rights. In essence, speech could be punished if the utterance of words might bring about “evils that Congress has a right to prevent.” Interpretation of clear and present danger was still not absolutely clear. In fact, Justice Holmes found himself on the dissenting side of a similar case shortly after Schenck. Holmes disagreed with the majority of the Court’s application of the doctrine in Abrams v. United States. Holmes did not agree that the Clear and Present Danger Test had been met. In Abrams, four Russian-‐born aliens living in the United States were convicted of violating the Espionage Act. These self-‐admitted revolutionists were critical of President Wilson’s policies and called for the “workers of the world” to rise and put down capitalism. The Supreme Court saw this call as a clear and present danger intended to incite an uprising against the government of the United States. Justice Holmes disagreed. Abrams v. United States, 250 U.S. 616 (1919) Mr. Justice Holmes dissenting: ☐ This indictment is founded wholly on the publication of two leaflets. . . . The first of these leaflets says that the President’s cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. . . . The other leaflet, headed “Workers—Wake Up,” with abusive language says that America together
with the Allies will march for Russia to help the Czecko-‐Slovaks [sic] in their struggle against the Bolsheviki, and that this time the hypocrites shall not tool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they must now spit in the face of the false military propaganda . . . and further, “Workers in the ammunition factories, you are producing bullets, bayonets, cannon to murder not only Germans, but also your dearest, best, who are in Russia fighting for freedom.” It then appeals to the same Russian emigrants at some length not to consent to the “inquisitionary expedition in Russia.” The leaflet winds up by saying “Workers, our reply to this barbaric intervention has to be a general strike! . . . Woe unto those who will be in the way of progress. Let solidarity live! [signed] The Rebels.” No argument seems to be necessary to show that these pronounciamentos in no way attack the form of government of the United States. . . . I do not doubt for a moment . . . the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger. . . . The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right of free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are concerned. Congress certainly cannot forbid all effort to change the mind of the country.11 Holmes applied the marketplace of ideas concept in Abrams. Borrowing from Milton’s Areopagitica and nineteenth-‐century philosopher John Stuart Mill’s essay On Liberty, Holmes wrote, ☐ the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be safely carried out.12 The marketplace-‐of-‐ideas theory assumes that all ideas, regardless of how loathsome they may be, should be heard. While Milton might assume that truth will triumph over falsity and that “good” will prevail over “evil,” neither Mill nor Holmes is so naive. Both accept the fact that truth may not triumph, but in the words of Mill, . . . [T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race posterity as well as the existing generation those who dissent from the opinion, still more than those who hold it.13 In Holmes’s view, the only time government should intervene in the process is when these opinions ☐ imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.14 As we shall see, this is the view of Clear and Present Danger that will prevail in later decisions of the
Supreme Court. Certainly, since 2001, Americans have had to grapple, once again, with the issue of freedom of speech during a time of war. Applying the First Amendment to the States Six years after Abrams, the Supreme Court decided Gitlow v. People of State of New York. In Gitlow, the Court upheld the conviction of Benjamin Gitlow for violating the New York Criminal Anarchy Statute. Although a majority of the Court found New York’s law to be reasonable, even the dissenters, Holmes and Brandeis, agreed on the principle that the First Amendment was binding on the states through the Fourteenth Amendment. They disagreed as to how it should be applied. Gitlow v. People of State of New York, 268 U.S. 652 (1925) Justice Sanford delivered the opinion of the Court: ☐ . . . For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.14 Justice Holmes, dissenting, wrote, ☐ Justice Brandeis and I are of the opinion that this judgement should be reversed. The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word “liberty” as there used.15 The Balancing Test Sometimes the courts must balance First Amendment interests against conflicting social and personal interests. In these situations, the court must determine which interest should receive the greater protection. The balancing test was articulated by the Supreme Court in American Communications Association v. Douds. In Douds, the Supreme Court “balanced” First Amendment rights against the right of the government to protect itself from overthrow. The court noted:
Freedom of speech, press, and assembly are dependent upon the power of constitutional government to survive. If it is to survive it must have power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts. Freedom of speech does not comprehend the right to speak on any subject at any time. . . . The “clear and present danger” rule is not a mechanical test applicable in every case touching First Amendment freedoms, without regard to the context of its application,· it is the considerations that gave birth to the rule, not the phrase itself, that are vital.17 The Fighting Words Doctrine Although the Clear and Present Danger Doctrine and the balancing test offer methods of adjudicating First Amendment disputes, they are by no means the only methods employed by the courts. Different First Amendment conflicts require different solutions. Therefore, the common sense approach of what was to become the Fighting Words Doctrine evolved in the 1940s. The Fighting Words Doctrine says that words directed at an average person that may provoke a fight are not protected by the First Amendment. The rationale is that a breach of the peace should be avoided over the protection of an individual’s right to utter hostile words. The Fighting Words Doctrine stems from Chaplinsky v. New Hampshire, a case that involved a Jehovah’s Witness and his activities on a street corner in Rochester, New Hampshire. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ☐ . . . Chaplinsky was distributing the literature of his sect on the streets of Rochester on a busy afternoon. Members of the local citizenry complained to the City Marshal . . . that Chaplinsky was denouncing all religion as a “racket.” The Marshal told them that Chaplinsky was lawfully engaged and warned Chaplinsky that the crowd was getting restless. . . . Chaplinsky made the following remarks to the Marshal outside City Hall: “You are a God-‐damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky . . . asked the Marshal to arrest those responsible for the disturbance. But the Marshal, according to Chaplinsky, instead cursed him and told Chaplinsky to come along with him. Chaplinsky was prosecuted under a New Hampshire statute, part of which forbade “addressing any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place.” . . . The statute, as construed, does no more than prohibit the face-‐to-‐face words plainly likely to cause a breach of the peace by the speaker—including “classical fighting words,” words in current use less “classical” but equally likely to cause violence, and other disorderly words, including profanity, obscenity and. . . . Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation and thereby cause a breach of the peace.18
In the years following Chaplinsky, the Fighting Words Doctrine was seriously weakened. Many state laws were struck down on the grounds that they were overbroad—and that, as constructed, they not only prohibited fighting words, but other expression as well. In Gooding v. Wilson, a Georgia statute prohibiting the use of “opprobrious words or abusive language tending to breach the peace” was struck down as unconstitutionally vague and overbroad under the First and Fourteenth Amendments.19 Citing Chaplinsky, the Supreme Court defined “fighting words” as those having a “direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”20 This means that the doctrine is not applied when groups of people are provoked. In Lewis v. City of New Orleans, the Court also struck down a New Orleans ordinance making it unlawful to “curse or revile or to use obscene or opprobrious language toward or with reference to” a police officer on duty.21 The New Orleans ordinance was found to have a “broader sweep” than the constitutional definition of fighting words. Offensive or indecent words, in and of themselves, are not necessarily fighting words. When Paul Robert Cohen walked into the Los Angeles County Courthouse in April of 1968 wearing a jacket with “Fuck the Draft” printed on it, he was arrested for disturbing the peace. Even though he made no physical disturbance, he was convicted on grounds that the writing on his jacket might provoke others to acts of violence. In Cohen v. California, the Supreme Court overturned his conviction and stated that the four-‐letter word displayed by Cohen in relation to the draft was not directed to any one person. ☐ . . . No individual actually or likely to be present could reasonably have regarded the words on the appellant’s jacket as a direct personal insult. . . . There is . . . no showing that anyone who saw Cohen was in fact violently aroused or that the appellant intended such a result.22 The display was protected by the First Amendment, as it was Cohen’s opinion of the Vietnam War and the draft. In 1977, the American Nazi Party was denied a parade permit by village officials in Skokie, Illinois, because they feared that the sight of such Nazi symbols as the swastika might trigger violence and trauma based on the vulnerability of Holocaust survivors to symbolic reminders of past persecution. In April 1977, an injunction prohibiting the Nazi demonstration was obtained and in the following weeks three ordinances were passed that required permits for which the American Nazis could not qualify. The Nazis obtained the assistance of the American Civil Liberties Union and filed suit against the town on grounds that the ordinances violated the First Amendment. After a lengthy struggle in the courts in Village of Skokie v. National Socialist Party, the Nazis finally won the right to demonstrate. Village of Skokie v. National Socialist Party, 373 N.E. 2d 21 (Ill., 1978) ☐ Plaintiff urges and the appellate court has held, that the exhibition of the Nazi symbol, the swastika, addresses to ordinary citizens a message which is tantamount to fighting words. Plaintiff further asks this court to extend Chaplinsky, which upheld a statute
punishing the use of such words, and hold that the fighting-‐words doctrine permits a prior restraint on defendant’s symbolic speech. In our judgment we are precluded from doing so. . . . . . . The display of the swastika, as offensive to the principles of a free nation as the memories it recalls may be, is symbolic political speech intended to convey to the public the beliefs of those who display it. It does not, in our opinion, fall within the definition of “fighting words” and that doctrine cannot be used here to overcome the heavy presumption against the constitutional validity of a prior restraint. . . . We do not doubt that the sight of this symbol is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding their display. . . . In summary, as we read the controlling Supreme Court opinions, use of the swastika is a symbolic form of free speech entitled to First Amendment protections. Its display on uniforms or banners by those engaged in peaceful demonstrations cannot be totally precluded because that display may provoke a violent reaction by those who view it. Particularly . . . where . . . there has been advance notice by the demonstrators of their plans so that they have become “common knowledge” and those to whom sight of the swastika banner or uniforms would be offensive are forewarned and need not view them. A speaker who gives prior notice of is message has not compelled a confrontation with those who voluntarily listen.23 Although they won a legal victory, the Nazis eventually canceled their plan to march in Skokie. According to Professor Donald Downs, the leader of the National Socialist Party, Frank Collin, decided against the march because he knew his group would make easy targets for counter demonstrators. Probably no case involving the First Amendment so tests the fabric of the marketplace-‐of-‐ideas theory as does the Skokie case. The parameters of the conflict give new life to Justice Douglas’ resurrection of the concept in his dissent in Dennis v. United States: ☐ Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.24 Hate Speech In a further refinement of the Fighting Words Doctrine, in 1992 the U.S. Supreme Court struck down a Minnesota law prohibiting “hate speech.” Essentially, the ruling prohibits government from silencing speech on the basis of its content alone. In R.A. V v. City of St. Paul Minn., 112 S.Ct 2538 (1992) the court struck down a Minnesota law that prohibited the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The court found the law unconstitutional because it imposed special prohibitions on the speaker. In other words, the law held that one could argue in favor of
racial tolerance, but not against it. Minnesota’s “hate speech” law had the effect of favoring “politically correct” fighting words over all others, and therefore violated the First Amendment. R. A. V. v. City of St. Paul, Minnesota, 112 S.Ct. 2538 (1992) Justice Scalia delivered the opinion of the Court. ☐ In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias Motivated Crime Ordinance, St. Paul, Minn. Legis. Code §292.02 (1990), which provides: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.” Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content based and therefore facially invalid under the First Amendment. The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected petitioner’s overbreadth claim because, as construed in prior Minnesota cases, see, e.g., In re Welfare of S. L. J., 263 N.W.2d 412 (Minn. 1978), the modifying phrase “arouses anger, alarm or resentment in others” limited the reach of the ordinance to conduct that amounts to “fighting words,” i.e., “conduct that itself inflicts injury or tends to incite immediate violence . . . and therefore the ordinance reached only expression “that the first amendment does not protect,” 464 N.W.2d, at 511. The court also concluded that the ordinance was not impermissibly content based because, in its view, “the ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias motivated threats to public safety and order.” Ibid. We granted certiorari . . . . . . Accordingly, we accept the Minnesota Supreme Court’s authoritative statement that the ordinance reaches only those expressions that constitute “fighting words” within the meaning of Chaplinsky. . . . Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as “substantially overbroad . . . We find it unnecessary to consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the “fighting words” doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.
The First Amendment generally prevents government from proscribing speech, . . . or even expressive conduct . . . because of disapproval of the ideas expressed. Content based regulations are presumptively invalid . . . From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations . . . Our decisions since the 1960’s have narrowed the scope of the traditional categorical exceptions for defamation, . . . but a limited categorical approach has remained an important part of our First Amendment jurisprudence. We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech” . . . or that the “protection of the First Amendment does not extend” to them. . . . Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity “as not being speech at all,” . . . What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. We recently acknowledged this distinction . . . in upholding New York’s child pornography law, we expressly recognized that there was no “question here of censoring a particular literary theme. . . .” (“As drafted, New York’s statute does not attempt to suppress the communication of particular ideas.”) Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government “may regulate [them] freely,” That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all or nothing at all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well. It is not true that “fighting words” have at most a “de minimis” expressive content, ibid., or that their content is in all respects “worthless and undeserving of constitutional protection,” . . . sometimes they are quite expressive indeed. We have not said that they constitute “no part of the expression of ideas,” but only that they constitute “no essential part of any exposition of ideas:” (Emphasis added.) The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace, and has found application in many contexts. We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. . . . Similarly, we have upheld reasonable “time, place, or manner” restrictions, but only if they are “justified without reference to the content of the regulated speech” . . .
And just as the power to proscribe particular speech on the basis of a noncontent element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements. In other words, the exclusion of “fighting words” from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication. Fighting words are thus analogous to a noisy sound truck: Each is, as Justice Frankfurter recognized, a “mode of speech,” . . . both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with the sound truck, however, so also with fighting words: The government may not regulate use based on hostility—or favoritism—towards the underlying message expressed. . . . . . . a government must either proscribe all speech or no speech at all, . . . Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech. The rationale of the general prohibition, after all, is that content discrimination “rais[es] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. . . . But content discrimination among various instances of a class of proscribable speech often does not pose this threat. When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience—i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. . . . And the Federal Government can criminalize only those threats of violence that are directed against the President, . . . since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. . . . But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example, . . . a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection . . . But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion, . . . . . . A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the nation’s defense secrets), a particular content based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment
practices, . . . Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. These bases for distinction refute the proposition that the selectivity of the restriction is even arguably ‘conditioned upon the sovereign’s agreement with what a speaker may intend to say.’ . . . There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State’s prohibiting only those obscene motion pictures with blue-‐eyed actresses.) Save for that limitation, the regulation of “fighting words,” like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone . . . Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects . . . In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words—odious racial epithets, for example—would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender—aspersions upon a person’s mother, for example—would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker’s opponents. One could hold up a sign saying, for example, that all “anti Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules. What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of “bias motivated” hatred and in particular, as applied to this case, messages “based on virulent notions of racial supremacy.” . . . One must wholeheartedly agree with the Minnesota Supreme Court that” [i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear,” . . . but the manner of that confrontation cannot consist of selective limitations upon speech. St. Paul’s brief asserts that a general “fighting words” law would not meet the city’s needs because only a content specific measure can communicate to
minority groups that the “group hatred” aspect of such speech “is not condoned by the majority. . . . The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content. Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is directed at expression of group hatred, Justice Stevens suggests that this “fundamentally misreads” the ordinance. . . . It is directed, he claims, not to speech of a particular content, but to particular “injur[ies]” that are “qualitatively different” from other injuries. . . . This is word play. What makes the anger, fear, sense of dishonor, etc. produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc. produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that easily. It is obvious that the symbols which will arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” are those symbols that communicate a message of hostility based on one of these characteristics. St. Paul concedes in its brief that the ordinance applies only to “racial, religious, or gender specific symbols” such as “a burning cross, Nazi swastika or other instrumentality of like import.” . . . Indeed, St. Paul argued in the Juvenile Court that “[t]he burning of a cross does express a message and it is, in fact, the content of that message which the St. Paul Ordinance attempts to legislate.” . . . The content-‐based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier, nor within a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier . . . the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty. St. Paul argues that the ordinance comes within another of the specific exceptions we mentioned, the one that allows content discrimination aimed only at the “secondary effects” of the speech . . . According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against” . . . Even assuming that an ordinance that completely proscribes, rather than merely regulates, a specified category of speech can ever be considered to be directed only to the secondary effects of such speech, it is clear that the St. Paul ordinance is not directed to secondary effects within the meaning of Renton. . . . “The emotive impact of speech on its audience is not a ‘secondary effect.’ ” . . .
It hardly needs discussion that the ordinance does not fall within some more general exception permitting all selectivity that for any reason is beyond the suspicion of official suppression of ideas. The statements of St. Paul in this very case afford ample basis for, if not full confirmation of, that suspicion. Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the “danger of censorship” presented by a facially content based statute . . . requires that that weapon be employed only where it is “necessary to serve the asserted [compelling] interest,” . . . The existence of adequate content neutral alternatives thus “undercut[s] significantly” any defense of such a statute . . . casting considerable doubt on the government’s protestations that “the asserted justification is in fact an accurate description of the purpose and effect of the law” . . . The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served by the content limitation is that of displaying the city council’s special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility—but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree. Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. Speech and Action Burning a cross, a flag, or a draft card in protest of social policy are examples of “speech,” carried out in a form of “action.” The courts have experienced difficulty in cases involving both verbal and nonverbal elements. When David Paul O’Brien burned his draft card on the steps of the South Boston Courthouse, he said he did so in protest of the war in Vietnam. Although draft card mutilation was a violation of the Military Training and Service Act of 1948, O’Brien maintained that the draft card burning was “symbolic speech” and was therefore protected by the First Amendment. In United States v. O’Brien (1968), the Supreme Court disagreed. Justice Warren wrote,
☐ This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. . . . The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate interest in preventing their wanton and unrestrained destruction and continuing their availability by punishing people who knowingly and willfully destroy or mutilate them.25 O’Brien could have burned “symbolic” draft cards, but not the real item. The Supreme Court reached a different decision one year later. Students in Des Moines wore black arm bands to school to protest the Vietnam War. The Des Moines school system had specifically prohibited the wearing of arm bands. Seven of the 18,000 students enrolled in the system wore arm bands and no disruption of school operations occurred. In Tinker v. Des Moines Independent School District, the Court held that the wearing of arm bands was a “symbolic act” protected by the First Amendment. Twenty years later, a badly divided Supreme Court (5 to 4) ruled that burning the American flag may be symbolic speech. In Texas v. Johnson, Justice Brennan delivered the opinion of the Court: Texas v. Johnson (1989) ☐ . . . While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration . . . the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-‐based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-‐ins” intended to dramatize the consequences of nuclear war. . . . [Johnson] . . . did . . . accept an American flag handed him by a fellow protestor who had taken it from a flag pole outside one of the targeted buildings. The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, “America the red, white and blue, we spit on you.” After the demonstrators dispersed, a witness to the flag burning collected the flag’s remains and buried them in his backyard. Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex. Penal Code. . . . After a trial, he was convicted, sentenced to one year in prison, and fined $2000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson’s conviction, but the Texas Court of Criminal Appeals reversed. . . . Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words. This fact somewhat complicates our consideration of his conviction under the First Amendment. . . .
Texas conceded that Johnson’s conduct was expressive conduct. Johnson burned an American flag as part—indeed, as the culmination—of a political demonstration that coincided with the convening of the Republican Party and its re-‐nomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. . . . Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. . . . The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute.” . . . Nor does Johnson’s expressive conduct fall within that small class of “fighting words” that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. . . . If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. We have not recognized an exception to this principle even where our flag has been involved. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. . . . To conclude that the Government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the Government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how could we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do so. There is, moreover, no indication—either in the text of the Constitution or in our cases interpreting it—that a separate judicial category exists for the American flag alone. . . . We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. . . . The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.26 In October 1989, President Bush signed into law the Flag Protection Act. This law provided for penalties of up to one year in jail and a $1000 fine for those who desecrate the American flag. In June 1990, the Supreme Court overturned the law as violative of the First Amendment. However, the issue of a constitutional amendment to outlaw flag burning periodically resurfaces. Prior Restraint
Prior restraint means censoring or preventing material from being broadcast or published. Although the presumption against prior restraint in Anglo-‐American law may be traced back to Blackstone’s Commentaries, the first major American case did not reach the Supreme Court until 1931. Near v. Minnesota involved a Minnesota newspaper called The Saturday Press. A Minnesota statute allowed local prosecutors to enjoin publications judged “malicious, scandalous and defamatory.” The county attorney of Hennepin County brought such an action against The Saturday Press. It seems that the paper had accused the law enforcement officials in Minneapolis of failing to punish gambling, bootlegging, and racketeering activities. The paper also charged that law enforcement was controlled by a “Jewish gangster.” The state trial court found that the Press had violated the Minnesota public nuisance statute and “perpetually enjoined” publication of the paper. The Supreme Court reversed the ruling, finding the Minnesota statute unconstitutional. States are free to provide for punishment after publication, but the Court stressed that freedom to publish must be guarded. In Near, the Supreme Court noted that although there was a heavy presumption against prior restraints, there may be times when such action is justified. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.27 The Doctrine of Prior Restraint was tested again in 1971 in what has become known as the Pentagon Papers Case. The New York Times was restrained from publishing 36 classified papers outlining how America became involved in the Vietnam War. The papers had been obtained from Dr. Daniel Ellsberg, a former Pentagon employee who had become disenchanted with the war. A temporary restraining order was issued against the Times, but when the U.S. government requested a permanent injunction, Judge Gurfein of the Federal District Court for the Southern District of New York refused to grant one. The U.S. Court of Appeals for the Second Circuit reversed, calling for further hearings on the matter. In the meantime, the temporary injunction remained in effect. Next, the Washington Post obtained the papers and planned to publish them. Once again, the government requested a restraining order. Judge Gerhard Gesell of the U.S. District Court for the District of Columbia refused to issue the order and the Post was free to publish, while the Times could not. The Supreme Court eventually ruled in favor of the Times, noting that, ☐ Any system of prior restraints of expression come to this Court bearing a heavy presumption against its constitutional validity. . . . The government “thus carries a heavy burden of showing justification for the enforcement of such a restraint.” The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the government had not met that burden. We agree.28
In the fall of 1990, the Cable News Network (CNN) planned to cablecast tapes of jail telephone call conversations between deposed Panamanian dictator Manuel Noriega and his attorneys. Miami, Florida, District Court Judge William Hoeveler issued a temporary injunction against CNN on the grounds that Noriega’s Sixth Amendment right to a fair trial might be jeopardized. In spite of the injunction, CNN did cablecast one of the conversations, but eventually turned the tapes over to the court for fair trial consideration. CNN was threatened with contempt charges for the cablecast. On November 18, 1990, the Supreme Court refused to schedule arguments on the merits of the injunction and also refused to give CNN permission to air the taped conversations. On November 28, 1990, Judge Hoeveler lifted the restraining order, saying that after viewing the tapes, he had concluded that Noriega’s right to a fair trial would not be impaired. In 1994, CNN was found guilty in U.S. District Court of criminal contempt of court for the airing of the conversations between Noriega and his attorney. The Clear and Present Danger Doctrine Revisited After Scbenck and Abrams, the Clear and Present Danger Doctrine fell into disuse. It did not reappear until 1951 and then in a somewhat altered form. In Dennis v. United States, the Supreme Court upheld the conviction of Eugene Dennis and ten other persons for violating the Smith Act. The Smith Act made it a crime to conspire to teach and advocate the overthrow of the United States government by force. In a 6-‐2 decision, the Court convicted the petitioners for conspiracy and advocacy—not for actual violence. A majority of the Court held that the state cannot be expected to wait until violence is imminent before acting. The justices noted that obstructions to free speech and press might be necessary in order to prevent an even greater evil to society. Hence, Dennis presented a clear and present danger. The doctrine reached its apex with Dennis. An individual’s First Amendment rights could be abridged for merely teaching the necessity of overthrowing the government. However, the pendulum quickly began to swing the other way. In spite of the fact that the government brought many prosecutions under the Smith Act after Dennis, by 1957 the act had been overruled. With McCarthyism on the wane, the Supreme Court, in Yates v. United States, made a distinction between advocacy of direct action and advocacy of abstract doctrine. The latter, said the Court, was protected by the First Amendment. The Clear and Present Danger Doctrine was finalized in Brandenburg v. Ohio (1969), in which the Supreme Court held that advocacy may not be banned unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Compelled Speech Up to this point we have examined ways in which speech may be legally restricted by government. It is also important to note that case law also protects individuals from being forced to speak against their will. For example, in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d (1977) the Supreme Court held that the state of New Hampshire could not require an individual to display a license plate with the ideological message “Live Free or Die” on their private automobile. Similarly, in Hurley v. Irish-‐American Gay Lesbian and
Bisexual Group of Boston, 115 S.Ct. 2338 (1995), a group representing several gay organizations sought permission from the City of Boston to participate in a parade organized by a private veterans organization. The Supreme Court ruled that the gay groups could be excluded from the public parade because their presence would compel the private organizers to convey a message that they did not wish convey; thereby violating the veterans’ First Amendment rights. The First Amendment and Traditional Broadcasting As we shall study in later chapters, material broadcast over the air is not afforded the same First Amendment protection as printed matter. The underlying assumption of broadcast regulation originally rested on the premise that broadcasters used a scarce public resource—the electromagnetic spectrum. In theory/because there are a limited number of broadcast frequencies available, the FCC was charged with choosing the best applicant from those who applied for a broadcast license. The FCC developed criteria for making that choice, all of which are under the umbrella of the “public interest standard.” Unlike newspapers, broadcasters were “public trustees.” Although the First Amendment protected publishers, the Supreme Court ruled in Red Lion v. FCC, that ☐ . . . Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licenses in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or by private licensee. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here.29 In spite of the fact that “scarcity” is a creation of the frequency allocation process and that even the FCC has questioned its validity, concern over fairness remains. The FCC is prohibited from censoring program content. Newspapers and magazines are legally free to publish almost any material that has not been judged by a court to be obscene. Broadcasters do not have that freedom. Because of the pervasive nature of the broadcast media, certain material may not be broadcast over the air, as ruled in FCC v. Pacifica Foundation (1976). The courts and the FCC have ruled that because broadcasting comes into the home, sometimes “uninvited,” consideration for the makeup of the audience is in order. Cable operators are not subjected to these restrictions on content.
Unlike newspapers, broadcasters must provide equal time to political candidates and the rates at which this time can be sold are governed by the Communications Act. Any legislation suggesting that newspapers or magazines be subjected to the same standards would surely violate the First Amendment, which was the case in Miami Herald Publishing Co. v. Tornillo (1974). Many in the industry see these regulations as unfair burdens that hinder the ability to compete in the marketplace. Others in society believe that regulation enhances the number of voices given access to the marketplace of ideas. In Turner Broadcasting System, Inc. v. FCC (1994), the Supreme Court reaffirmed Red Lion’s importance in assessing broadcasters First Amendment rights but refused to apply Red Lion to cable television.30 The First Amendment and Cable/Satellite Television Because cable, and by extension satellite television, is not subjected to the “limited spectrum” as are broadcasters, the Courts have generally held that cable television is deserving of greater First Amendment protection than over-‐the-‐air broadcasters.31 The First Amendment and the Internet The courts have applied the First Amendment to the Internet in a similar manner to that of the print media. Efforts to hold the Internet to broadcast-‐like indecency standards have been repeatedly struck down by the Supreme Court. (See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).) Similarly, the High Court struck down the Child Pornography Prevention Act of 1996 which would have made “virtual images” of certain sexually oriented material illegal. The Act would have banned a range of sexually explicit images, sometimes called “virtual child pornography,” that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-‐looking adults or computer-‐imaging technology. (See Ashcroft v. Free Speech Coaltion 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 2789 (2002).) In Reno (1997), the Supreme Court held that the Communications Decency Act violated the First Amendment because it was “overbroad”—that is, it was not narrowly tailored to address only the harms it was designed to prevent. Congress tried to address the Court’s concern with passage of the Child Online Protection Act (COPA). The COPA addressed only commercial material on the World Wide Web (not the entire Internet) found “harmful to minors” (see 47 U.S.C. 231 (a)(1)). A Federal District Court issued a preliminary injunction against enforcement of COPA on grounds that the Act was unlikely to survive “strict scrutiny.” The Court of Appeals for the Third Circuit affirmed, but based its decision on the use of the “contemporary community standards” doctrine, borrowed from current obscenity law, to identify material as “harmful to minors.” The Supreme Court heard the case in October of 2001 and held that the COPA’s reliance on the “community standards” doctrine did not, by itself, render the COPA “overbroad.” The Supreme Court offered no opinion on the constitutionality of COPA as a whole, and sent the
case back to the Third Circuit for review. The preliminary injunction preventing enforcement of COPA remained in effect pending action by the lower courts. (See Ashcroft v. American Civil Liberties Union, No. 00-‐1293, May 13, 2002.) Summary The major cases that dealt with interpretations of the First Amendment did not occur until the twentieth century. Although the First Amendment is written in absolute terms, the courts have developed guidelines that indicate the limitations of freedom of speech and freedom of the press. The interpretations of the First Amendment given by the courts have varied over the years, depending on the philosophical bent of the justices hearing the cases. Because broadcast media are licensed to serve the public interest and use space on the electromagnetic spectrum, they are held to a stricter standard under the First Amendment than publishers or cable television operators. The courts have rejected a broadcast-‐like regulatory scheme for the Internet, preferring to treat the medium more like print for First Amendment issues. Questions for Discussion 1. Interpretations of the First Amendment are often shaped by the “spirit of the times.” How have the events of our time influenced court rulings on First Amendment issues? What are the major First Amendment themes facing American society today? 2. Visit the Supreme Court Web site www.supremecourtus.gov/. In the search box type “First Amendment.” What First Amendment issues are before the Court? 3. Does the “spectrum scarcity” argument outlined in Red Lion for treating broadcasters differently under the First Amendment still make sense today? Does the multichannel universe make a difference in the legal rationale? 4. Justice Douglas’ dissent in Dennis v. United States advocated “full and free discussion of ideas we hate.” He believed that this kind of discussion keeps a society from becoming stagnant and more susceptible to “stresses and strains that . . . tear all civilizations apart.” Do you agree? Are some ideas just too “hateful” to be afforded open discussion? Notes/References 1. Edward G. Hudon, Freedom of Speech and Press in America (Washington, D.C.: Public Affairs Press, 1963), 11. 2. Donald M. Gillmor and Jerome A. Barron, Mass Communication Law, 4th ed. (St. Paul: West Publishing Co., 1984), 738. 3. Ibid. 4. John Milton, Areopagitica and of Education, ed. George H. Sabine (New York: Appleton-‐Century-‐Crofts, 1951), 50.
5. Vincent Buranelli, The Trial of Peter Zenger (Washington Square: New York University Press, 1957), 95. 6. Ibid., 97. 7. Ibid., 62. 8. William Blackstone, Commentaries on the Laws of England, ed. Charles M. Haar (Boston: Beacon Press, 1962), 161–62. 9. Zechariah Chafee, Jr., Thirty-‐Five Years with Freedom of Speech (New York: Roger N. Baldwin, Civil Liberties Foundation, 1952), 4. 10. Schenck v. United States, 249 U.S. 47 (1919). 11. Abrams v. United States, 250 U.S. 616 (1919). 12. Ibid. 13. J. S. Mill, On liberty Etc. (London: Oxford University Press, 1969), 24. 14. Abrams v. United States, 250 U.S. 616 (1919). S.Ct. 625, 69 L.Ed. 1138(1925). 15. Gitlow v. People of State of New York, 268 U.S. 652 (1925). 16. Ibid. 17. American Communications v. Douds, 339 U.S. 382 (1950) at 396. 18.Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). 19. Gooding v. Wilson, 405 U.S. 518 (1972). 20. Ibid. 21. Lewis v. City of New Orleans, 408 U.S. 913 (1972) and Lewis v. City of New Orleans, 415 U.S. 130 (1974). 22. Cohen v. California, 403 U.S. 15 at 20 (1971). 23. Village of Skokie ν. National Socialist Party, 373 N.E. 2d 21(Ill. 1978). 24. Dennis v. United States, 341 U.S. 494 (1951). 25. United States v. O’Brien, 391 U.S. 367 (1968). 26. Texas v. Johnson, 491 U.S. 397 (1989). 27. Near v. Minnesota, 283 U.S. 697 (1931). 28. New York Times v. United States, 403 U.S. 308 (1971). 29. Red Lion v. FCC, 395 U.S. 367 (1969). 30. For additional information regarding this issue, see the Fairness Report of 1985, 102 EC.C.2d 143, 58 R.R.2d 1137 (1985) and “Fairness Doctrine Legislation Re-‐Emerges,” Broadcasting (January 12, 1991): 43. 31. Turner Broadcasting System, Inc. v. Federal Communications Commission, Op. 93-‐44 (U.S. June 27, 1994). Cases Abrams v. United States, 250 U.S. 616 (1919)
American Communications Association v. Douds, 339 U.S. 382 (1950) Ashcroft v. American Civil Liberties Union (Slip Opinion, No. 00-‐1293, May 13, 2002) Ashcroft v. Free Speech Coaltion, 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 2789 (2002) Brandenburg v. Ohio, 395 U.S. 444 (1969) Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) Cohen v. California, 403 U.S. 15 at 20 (1971) Dennis v. United States, 341 U.S. 494 (1951) FCC v. Pacifica Foundation, 438 U.S. 726 (1978) Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 LEd. 1138 (1925) Gooding v. Wilson, 405 U.S. 518 (1972) Lewis v. City of New Orleans, 408 U.S. 913 (1972) Lewis v. City of New Orleans, 415 U.S. 130 (1974) Miami Herald Publishing Co. ν. Tornillo, 418 U.S. 241 (1974) Near v. Minnesota, 283 U.S. 697 (1931) New York Times v. United States, 403 U.S. 713 (1971) R.A.V. v. City of St. Paul, Minn., 112 S.Ct 2538 (1992) Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969) Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) Schenck v. United States, 249 U.S. 47 (1919) Texas v. Johnson, Slip op. 88-‐155 (U.S. June 21, 1989) Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) Turner Broadcasting System, Inc. v. Federal Communications Commission, Op. 93-‐44 (U.S. June 27, 1994) United States v. O’Brien, 391 U.S. 367 (1968) Village of Skokie v. National Socialist Party, 373 N.E.2d 21 (Ill., 1978) Yates v. United States, 354 U.S. 298 (1957)