THE
CORNERSTONE
PAPERS
A SERIES OF OCCASIONAL ESSAYS
ON THE FIRST AMENDMENT
No. 3
The Courts:
Keeping Speech Free in Troubled Times
John Corry
T
he First Amendment is quite definite:
“Congress shall make no law … abridging
the freedom of speech….” Twice, however,
in 1798 and 1918, Congress made laws that
did just that, and while the 1798 laws were soon
repealed or allowed to expire, the latter led to court
decisions that still protect our right to speak freely.
Indeed, in the ongoing battle to protect this right, the
courts have provided our most formidable defense.
Fortunately, that defense has remained strong in the
aftermath of Sept. 11.
Both the earlier and later sedition laws were
inspired by fear of foreign intervention in American
life; they were similar even in their wording. The
Sedition Act of 1798 made it a crime to “print, utter
or publish … any false, scandalous, and malicious
writing” about the government. The Sedition Act of
1918 made it a crime to “willfully utter, print, write
or publish any disloyal … or abusive language” about
the government.
Put aside now the question of whether the fear
of foreign intervention was real or only imagined.
The laws still overturned the most basic notion of a
democracy: that citizens are free to criticize their
government.
PUBLISHED BY THE
In 1919, only one year after the second sedition
act became law, the U.S. Supreme Court ruled for the
first time in its history on a free-speech case. The
general secretary of the Socialist Party had mailed
15,000 leaflets urging opposition to wartime
conscription, and been convicted under a law that
made it a crime to “willfully obstruct” military
recruiting.
Oliver Wendell Holmes, who wrote the
unanimous opinion upholding the conviction, agreed
that there were indeed occasions when speech could
be limited. “The most stringent protection of free
speech,” he famously wrote, “could not protect a man
in falsely shouting fire in a theater and causing a
panic.”
But at the same time, Holmes set up a judicial
barrier. Speech could be limited, he also wrote, only
if it led to a situation that would “create a clear and
present danger.” That same year, he amplified on
what this might mean.
When the Supreme Court upheld the conviction
of four Russian anarchists for distributing leaflets
that criticized capitalism and Woodrow Wilson’s war
policies, Holmes dissented. He said the leaflets,
which ended with the cry “Woe unto those who will
CORNERSTONE PROJECT, A PROGRAM OF
be in the way of progress,” posed no clear and
present danger. Rather, he wrote (with what surely
was a clear-eyed perspective), they were “silly.”
Holmes’s views, and those of Justice Louis D.
Brandeis, who usually joined him in his dissents,
would in time dominate judicial thinking on free
speech and also give it a structure. When Holmes
wrote, for example, that the First Amendment
protected the right to express even “opinions that we
loathe,” or that “the best test for truth is the power of
the thought to get itself accepted in the competition
of the marketplace,” he laid down rules that guide
the courts today.
In his written opinions Holmes took a more
pragmatic approach to the law than did Brandeis. He
also showed more skepticism about human behavior.
Both justices championed free speech, although in
calling for its protection, Brandeis was likely to
appeal to loftier sentiments than would Holmes.
Free speech, Brandeis believed, ennobled the
people who practiced it; in showing tolerance for
the expression of ideas they disagreed with they
demonstrated their moral courage. In a dissenting
opinion on the constitutionality of a California law
to prohibit Communist and radical activity, for
instance, he wrote this:
“Those who won our independence by
revolution were not cowards. They did not fear
Free speech, Brandeis believed,
ennobled the people who practiced
it; in showing tolerance for the
expression of ideas they disagreed
with they demonstrated their moral
courage.
political change. They did not exalt order at the cost
of liberty. To courageous, self-reliant men, with
confidence in the power of free and fearless
reasoning applied through the process of popular
government, no danger flowing from speech can be
deemed clear and present unless the incidence of the
evil apprehended is so imminent that it may befall
before there is an opportunity for full discussion.”
Meanwhile in 1925, two years before Brandeis
wrote that, the Supreme Court had erected another
barrier. It had accepted the argument put forth by
the American Civil Liberties Union that it could
apply the Due Process Clause of the 14th
Amendment — “No State shall make or enforce any
law which shall abridge the privileges or immunities
of citizens of the United States ... without due
process of law….” — to free-speech cases.
In other words, the Court could rule on whether
state laws violated the guarantees of the First
Amendment. This would be a great step forward in
protecting our right to speak freely, but it should also
be noted that the step forward came about in a case,
Gitlow v. New York, in which the Court seemed to be
moving in the opposite direction.
The Court upheld the conviction of Benjamin
Gitlow, who had been arrested in New York for
violating the state’s 1902 Criminal Anarchy Act when
he called for a Communist revolution. According to
the Court’s majority, that did not necessarily lead to a
clear and present danger, but it did suggest a
“tendency.”
In citing a “tendency,” the majority (no matter
how well intentioned) was retreating into the past.
The “tendency” or “bad tendency” doctrine was
formulated in 18th-century Britain. By order of
George III, laws were directed against the use of
words that might have a “tendency” to create
disloyalty, especially among men in the armed
forces. The bad tendency doctrine lingered in
Britain until the 19th century, although presumably
it had disappeared in America with the adoption of
the First Amendment, long before Gitlow.
But radicals, whether of the left or the right, can
awaken fears of subversion. Even if they commit no
overt acts, unsettled times will bring about attempts
to prevent them from speaking. Who knows what
they might say, and what might happen next? As the
Court majority ruled in Gitlow, words can lead to a
dangerous “tendency.”
But Holmes and Brandeis would have none of
that, and as Holmes wrote in his dissent, the
government could not penalize speech merely for
“bad tendency.” “Every idea is an incitement,” he
said, whether expressed by Gitlow or anyone else,
and a free people must be allowed to express even
the most subversive and provocative ideas unless, of
course, they create a clear and present danger.
The fear that the written or spoken word will
provoke some kind of danger seems to underlie
most attempts to regulate speech. And indeed, no
thoughtful person can ignore the harm that words
can do, or dismiss out of hand the idea that not all
speech should be protected.
The Holocaust was preceded by words that
described Jews as less than human. Slaughter in the
Balkans was facilitated by words that pit Serbs
against Croats, and sometimes both against
Albanians or Bosnians. Genocide in Rwanda became
an acceptable act when a Hutu government
demonized Tutsis.
On the other hand, the right to speak or write
freely is the most precious gift a democratic society
can confer on its members. That right cannot be
restricted for anything other than the most solemn of
reasons. The urge to comfort the aggrieved, protect
the vulnerable, or compensate for old injustices is
not reason enough to dilute the First Amendment;
neither is the desire not to see or hear anything
distasteful or unpleasant, or inimical to our lifestyles
or beliefs.
But this is a lesson that must be learned again
and again. New dangers from speech will always
be seen. Standards of public morality began to
change after World War II, for example, and in the
1950s the courts were asked to rule, for the first time
in their history, on anti-obscenity laws. What was
appropriate for public consumption and what was
not? In the 1960s the Free Speech Movement on
college and university campuses offered an answer.
It insisted that anything goes.
Meanwhile the courts grew reluctant to uphold
anti-obscenity laws. The philosophy of the Free
Speech Movement seemed to have won the day. In
the 1980s, however, many of its old advocates moved
away from “anything goes.” Certain words
or phrases, and in some cases even gestures, or
supposedly inappropriate sounds or facial
expressions, were now to be forbidden.
It was the beginning, of course, of the campus
speech (or hate speech) codes. Speech code
advocates wanted to protect whole classes of people
from words that might make them uncomfortable,
even if it meant contravening the First Amendment
for the sake of political correctness.
So speech codes proliferated on American
campuses; students and faculty had to watch what
they said, or perhaps even thought. In 1989, in the
first speech-code case to reach the courts, a
biopsychology graduate student at the University of
Michigan challenged the rule prohibiting behavior
that “stigmatizes or victimizes” individuals on the
basis of individual characteristics. Such behavior,
the speech code insisted, could create “an
intimidating, hostile or demeaning environment.”
The graduate student, who was also a teaching
assistant, demurred. He said the speech code could
prevent him from discussing the possibility that
biological differences between men and women or
among the races created separate personality traits
The right to speak or write freely
is the most precious gift a
democratic society can confer on
its members.
and abilities (a position that would be anathema in
the world of political correctness). What if, in a
discussion, the graduate student or anyone else used
words that offended men, women, or any member of
a racial group?
A federal district judge agreed with the graduate
student and struck down the parts of the code that
dealt with speech. Words in the code such as
“stigmatize” and “victimize,” or “threat” and
“interfere,” the judge found, were so vague that they
escaped any real definition, and could be used to
prevent someone from speaking freely. Moreover,
the judge ruled that the university could not
establish a policy to prohibit certain speech simply
because the university “disagreed with ideas or
messages” the speech sought to convey.
Speech code advocates persisted, however,
going back to the 1940s to find a legal justification.
In 1942, the Supreme Court upheld the conviction of
a Jehovah’s Witness in Rochester, N.H., who told a
city official: “You are a God-damned racketeer … and
the whole government of Rochester are Fascists or
agents of Fascists.”
The Court said these were “fighting words,”
and that a person who used them could be punished
if the words could “inflict injury or tend to incite an
immediate breach of the peace.” Presumably, then,
a white student who uttered a racial slur against
an African-American student in a one-on-one
confrontation could be punished for racial
harassment for using “fighting words.”
But the University of Wisconsin used the
“fighting words” defense to no avail in 1991. A
federal district court pointed out that the Supreme
Court had narrowed the definition of “fighting
words” in the ensuing years and that the university’s
speech code, which barred speech that created “a
hostile or demeaning environment,” went too far;
only speech likely to incite a breach of the peace
could still be considered “fighting words.”
The Supreme Court further eroded the “fighting
words” rationale for hate speech restrictions in a
1992 cross-burning case. The Court ruled that
speech could not be banned as “fighting words” if
the ban were applied selectively based on the
content of the words. Fighting words that consisted
of racial epithets, for example, could not be singled
out from other types of fighting words.
In cases such as these the courts have stressed
an overriding — and critical — theme: Speech cannot
be banned simply because it is found objectionable
by an individual, or even by large numbers of people.
The First Amendment will not be jeopardized
because of a fear of giving offense.
The courts have since struck down other speech
codes, and made clear that Holmes and Brandeis now
dominate judicial thinking. In the face of threats to
free speech that have arisen and will continue to
arise — particularly in the wake of Sept. 11 — the
Holmes/Brandeis legacy represents the First
Amendment’s best hope.
John Corry spent 28 years at the New York
Times as a reporter, columnist, and editor. His
newspaper career was complemented by a stint
at Harper’s from 1968 to 1971. Mr. Corry was a
Nieman Fellow at Harvard and a Gannett Fellow
at Columbia. He also taught at Boston University.
Mr. Corry wrote a media column for the American
Spectator and is a regular contributor to Earth Times.
He is the author of several books including My
Times: Adventures in the News Trade.
The Cornerstone Papers are published under the auspices of the Cornerstone Project, The Media Institute’s
public awareness and education program celebrating the First Amendment. The goal of Cornerstone is to give the
American public a renewed appreciation of the importance of free speech and free press.
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