It’s a Wonder We’re Free To Speak At All

COM 384Ron Bishop, Ph.D.

The Five Freedoms…“Congress shall make no law respecting the

establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”

The First Amendment It’s a free country, damnit!

Must consider the context in which debate occurs.

We embrace with great passion our freedom to say what we want, where we want, when we want…

But there’s a gap, a discrepancy in our commitment.

Don’t tell me what to say – tell him…or her…or them…

Who has the ear of our officials and the media?

The First AmendmentThe First Amendment is evolving, if that’s what

you want to call it…

The courts are a catalyst for this evolution.

We like to think public officials and the courts respect free expression.

There are more limits these days, more attacks on free expression.

So I leave it to you…

Should We Protect This?

Or This?

Or This?

Or This?

Or This?

Or This?

Or This?

Or This?

Or This?

And Finally…This?

Ladies and Gentlemen…George Carlin!

To Sum Up – What’s Protected?

Obscenity – most of the time.

Indecency – I know it when I see it; wait, that’s porn.

Hateful, nasty speech – still, yes.

Flag burning – yes.

Yelling “Fire!” in a crowded theater – no.

BOTTOM LINE: You generally can’t punish a speaker, but it’s the “generally” that gets us in trouble.

Or Can You?So it’s not absolute after all – not everything is

protected.

Government can – and does and will – restrict speech.

It’s an evolving concept, with evolution shaped by politics, Congress, the Courts.

Freedom is only won through hard fought battles, kept through vigilance.

Otherwise, it’s back to licensing the press and a ban on criticizing the government (didn’t completely end this until late 20th Century).

Or Can You? Not much that might, under wide definitions,

threaten national security.

Punishing advocacy of illegal or even unpopular ideas isn’t new. Alien and Sedition Act of 1798 Espionage Act of 1917 Smith Act of 1940 State sedition, criminal syndicalism laws

Or Can You? Supreme Court doesn’t rule on how far government can

go to thwart folks who want to overthrow the government.

Then: Dennis v. U.S. (1951): The evil the government wanted to prevent was bad enough to justify restricting speech.

If the government detects indoctrination and commitment to a course of action, it must act, even if the group isn’t successful, as here.

This was “a highly organized conspiracy.”

But does advocacy automatically translate into action?

Or Can You?Yates v. U.S. (1957): A change of heart;

convictions of Party leaders set aside, some acquitted, others remanded for retrial.

Smith Act barred “advocacy of action,” not “advocacy in the realm of ideas.”

You have to be urged to do something, not just to believe in something, Justice John Marshall Harlan II wrote.

Smith Act hasn’t been invoked to punish in 40+ years.

Key words: “inciting imminent lawless action.”

It Boils Down To This…What can I say?

When and where can I say it?

Under what circumstances will officials tell me I can’t say it?

An Open Culture? Have to ask ourselves:

How unregulated a country do we really want? Where’s the line between liberty and order? Is the demand for “no law” absolute? Do we really want an open culture?

An Open Culture? After all, speech can be:

Uplifting and degrading Enlightening and redundant Profound but trivial Rational and emotional Contemplative and raucous Orderly and chaotic Organized and messy Soft and loud

IN SHORT: People say and write some dumb-ass things.

An Open Culture?Censorship is a social instinct.

Openness ain’t easy.

If we’re really into openness, rules have to be created to protect, encourage, nurture it.

We decide what we say; government has to justify any encroachment on free expression. Miami Herald Publishing v. Tornillo (1974)

Speech gets a “preferred position.”

An Open Culture - Rationales

The “Marketplace of Ideas” (Aeropagitica, 1745). Who gets to shop? Who gets to sell?

Human dignity The human spirit demands self-expression

(Thurgood Marshall).

Self-governance Free speech “indispensable to the discovery and

spread of truth” (Louis Brandeis).

The First Amendment Framers didn’t define “freedom.”

No instruction manual – not that we’d read it.

Just got a “sweeping command” – and then the Alien and Sedition Acts in 1798.

And how could the Framers have guessed we’d invent TMZ.com?

Do we get that there must be “freedom for the thought we hate,” as Justice Holmes said.

Judges say they don’t pay attention to public opinion, but…

Courts’ commitment to FOS, FOE grew as ours did.

The First Amendment Commit this one to memory: there’s always room

for mischief on the part of officials.

FOE has to be vigorously defended.

Calls now and then to license journalists, to revive sedition laws.

So we’re not all 1A cheerleaders after all.

Congress left things alone until passing the Espionage Act in 1918. Made it a crime to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about Constitution, the military, the flag.

The First AmendmentBut then, Scalia joined the majority in striking

down a flag burning law.

But then, even a 1A absolutist like Hugo Black was OK with some restrictions.

The First Amendment First Amendment claim not endorsed by the

Supreme Court until 1919 – and that was in a dissent.

Until then, Supreme Court treated First Amendment as unimportant.

If speech offended anyone, could ban it.

Patterson v. Colorado (1907): Upheld ban on speech “contrary to public

welfare.”

First Amendment Approaches

Absolutist

Ad Hoc Balancing

Preferred Position Balancing

Meiklejohnian

Access

And What About You? The First Amendment goes too far in the rights

it guarantees.

Musicians should be allowed to write and to sing songs with offensive lyrics.

It’s important for our democracy that the news media act as a watchdog on government.

The First Amendment requires a clear separation of church and state.

And What About You? Public HS students should be allowed to report

on controversial issues without official pre-approval.

Public schools should be allowed to discipline students who use their own computers at home to post material school officials say is offensive.

Journalists should be allowed to keep a source confidential.

The proceedings of the U.S. Supreme Court should be televised.

And What About You? Freedom to worship applies to all religious

groups, no matter how extreme their views.

The U.S. Constitution should be amended to ban flag burning.

When the Court Dives In…

Debs v. U.S. (1919) Conviction based on one speech advocating socialism,

draft resistance, and opposition to war is upheld.

Schenck v. U.S. (1919) Clear and present danger test is born.

Abrams v. U.S. (1919) “Poor and puny anonymities”

Gitlow v. New York (1925) 14th Amendment applies 1st to the states.

Whitney v. California (1927) Justice Brandeis’ brilliant dissent.

When the Court Dives In…

Schneider v. N.J. (1939) Can’t bar handbills by arguing you want to keep

the streets clean…

Chaplinsky v. N.H. (1942) Punishing “fighting words” is OK.

Holmes’ dissent in Abrams v. U.S.

“The surreptitious publishing of a silly leaflet by an unknown man” didn’t present danger.

Publishing the “poor and puny anonymities” protected.

Even if the leaflets were unlawful, only a “nominal” punishment is called for, unless “men were being punished for their views.”

They might be ignorant and immature, but can’t go after them for their opinions.

Holmes’ dissent in Abrams v. U.S.

“The ultimate good desired is better reached by the free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the free market…”

“We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death…”

Holmes in Whitney v. California

“…freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth…”

Framers, “believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form.”

Or as Brandeis saw it in Whitney…

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

Brandenburg v. Ohio (1969)

KKK leader invites TV reporter to cover a rally in Hamilton County, OH. Portions of rally taped.

A cross is burned; Brandenburg calls for “revengeance” against minorities; plans announced for march on DC.

Brandenburg arrested, charged with violating OH criminal syndicalism law.

Convicted, fined. Conviction appealed. State appeals court affirms. OH Supreme Court rejects his appeal.

Brandenburg v. Ohio Shouldn’t be a shock; we still believed just

advocating breaking the law was punishable.

US Supreme Court, however, reverses the conviction.

Can’t punish “abstract advocacy of force or law violation.”

The new idea: “imminent lawless action.”

The new criteria: intent, imminence, likelihood.

What Kind of Forum? Traditional Public Forum

Public streets, sidewalks, parks, city squares.

Designated (Limited) Public Forum Not required to be open, but which is at times

designated for expressive activities.

Closed Non-Public Forum Not usually used for public communication.

Private Property “Get off my land” means you have to – but what

about the street in front of the house?

What Kind of Forum? The “compatible use” test – is expression

incompatible with normal activity at that location? Davis v. Massachusetts (1897) Hague v. CIO (1939). Perry Education Association v. Perry Local Educators

Association (1983) U.S. v. Kokinda (1990) Int’l Society for Krishna Consciousness v. Lee (1992) Cornelius v. NAACP Legal Defense and Education Fund

(1985) Hopper v. City of Pasco (2001) Marlin v. DC Board of Elections and Ethics (2001) Embry v. Lewis (2000)

Read the Signs!

A Time, Place, and Manner (TPM) Restriction…

Must be content-neutral.

Cannot be a complete ban on communication.

Must be justified by a substantial state interest.

Must be narrowly tailored.

BOTTOM LINE: Is the speech incompatible with the normal activity of a particular place at a particular time?

ASK YOURSELF: What are officials really trying to achieve by passing the law?

TPM RestrictionsYou can – and should – still challenge content-

neutral restrictions as overbroad: Watchtower Bible & Tract Society v. Stratton

(2002):Supreme Court strikes down OH town ordinance

requiring all solicitors to obtain a permit from the Mayor’s office.

Feiner v. NY (1951):Disorderly conduct conviction upheld – cops

properly feared crowd violence. Schneider v. N.J. (1939)

Can’t bar handbills by arguing you want to keep the streets clean…

TPM Restrictions

Forsythe County v. Nationalist Movement (1992):Supreme Court strikes down ordinance enabling

officials to set rally permit fees based on estimate of required police protection.

Unfairly burdens unpopular speech – the “heckler’s veto.”

TPM Restrictions City of Ladue v. Gilleo (1994):

Court strikes down ban on private yard signs. Ten years earlier (City Council v. Taxpayers for

Vincent), justices uphold ban on utility pole signs. Madsen v. Women’s Health Center (1994):

Some of the restrictions in an injunction aimed at anti-abortion demonstrators upheld, others rejected.

Buffer zone OK, ban on demonstrations visible from clinic driveway not OK.

TPM RestrictionsBut when it comes to private property…

Ward v. Rock Against Racism (1989):Court upholds ban on sound trucks rolling through

neighborhoods at night with folks trying to sleep. Frisby v. Schultz (1988):

Court finds public sidewalks and streets that abut private property are traditional public forums!

TPM Restrictions…And you still can’t tie up traffic on purpose

with a demonstration, says the Court (Cox v. Louisiana, 1965). You can’t "insist upon a street meeting in the

middle of Times Square at the rush hour as a form of freedom of speech.”

A commuter's interest in getting to and from work outweighs an individual's right to tie up traffic through political expression.