PSCI 4220
Civil Liberties/Rights
III: Freedom of Speech
Introduction: Freedom of Speech
• “Congress shall make no law . . . abridging freedom
of speech”
• But, many laws abridge freedom of speech. Which
are valid, and why? Context is key
– BC it is so broad (and important!) many law schools have
one entire class on the topic.
– We’re going to cherry pick certain issues.
• 1st A usually considered the most important of all
constitutional amendments; and in a democracy, free
speech is the most important part of it.
• J Holmes’ dissent in US v. Schwimmer
(1929):
• “If there is any principle of the Const that
more imperatively calls for attachment than
any other it is the principle of free thought –
not for those who agree with us but freedom
for the thought of that we hate”
• That’s the key; free speech is important not if
we agree with it (that’s easy). It’s most
difficult when we don’t agree with it.
– Censorship measures throughout history have
used disporportionately to silence those who are
disempowered and who seek to challenge status
quo.
2 cardinal principles in free speech
jurisprudence
1) What is NOT a sufficient justification for
restricting speech (bedrock principle)
–
–
–
–
Content (or viewpoint) neutrality
Govt can’t limit speech just bc any listener (even the
majority) disagrees or is offended
Burning the flag in a political demonstration against
national policies; burning a cross near the home of an
African-American family who has recently moved
into an all-white neighborhood.
Appropriate response to disagreeable speech is not
censorship but MORE speech. Persuasion, not
coercion.
2) What IS sufficient justification.
•
Necessary to prevent actual/imminent harm of
an interest of ‘compelling importance’ (like
violence or injury)
•
•
•
Holmes: can’t yell ‘fire’ in a crowded theater.
AND that only by suppressing it can we
avert such harm
Remember; this is an easy A. to support if
you agree with the speech. It is not so easy
when you don’t agree (or vehemently
disagree with it, e.g. hate speech,
pornography, obscenity…)
• Or speech against the govt, especially
during periods of war or national crises.
– This is really important bc the core goal of the
1st is to ensure that citizens are free to discuss
and debate issues of concern to our govt.
• “Only by tolerating different ideas/beliefs
can democracy function and survive,
especially in a culture as heterogeneous as
the US. Diversity is a value in itself.”
• Holmes: “free thought not for those who
agree with us but freedom for the thought of
that we hate.”
• FREE SPEECH AND NATIONAL SECURITY
• When govt threatened (war), SupCt has called for a balance
– Speech is general protected by the SCT but not when there is
advocacy and activity against the govt.
• But what’s the difference between speech and action?
• Congress/Pres have suppressed anti-govt speech:
– Alien and Sedition Acts of 1798 – criminalized dissent
against the federal govt and 10 newspaper editors were
convicted for publishing their views.
– Pres Lincoln during Civil War – suppressed dissent though
the cases didn’t make it to SCT.
– Espionage Act of 1917 – criminalized the interference or
obstruction of military recruitment or morale.
– Today’s bumper stickers: “Support our troops, support the
war.”
“Congress shall make no law
abridging the freedom of speech”
• Espionage Act abridged free speech but the
SCT balanced speech and security. As they
did during:
–
–
–
–
Cold War and communism
Vietnam war
Flag burning
9/11 and Gitmo
• Schenck v. US**
• **Schenck v. U.S. (1919), J Holmes, 9-0 decision:
– Head of Socialist Party convicted of violating Espionage Act
by publishing a circular that said the draft violated 13th A.
against Slavery.
– SCT upheld his conviction. CONTEXT.
• Govt may suppress speech when it represents “clear
and present danger” to society
– If words used that will bring about substantive evils, then
Congress has a right to suppress that speech.
– So context is key; since the US was at war, the circulation
may have caused a panic.
• “Most stringent protection of free speech would NOT
protect a person from falsely shouting fire in a theater
and causing a panic”
– But how much of a clear and present danger is needed?
– What evidence suffices to demonstrate that danger?
• Congress amended Espionage Act making it also
unlawful to urge curtailment of production of
machinery necessary for war effort
– Schenck – illegal to obstruct military recruitment
– Abrams – illegal to urge curtailment of war effort
• **Abrams v. U.S. (1919), J Clarke (7-2 decision):
– Leaflet urges Russian emigrants to go on a general strike
• Upheld convictions
• Distinguishes actions from words; the language
intends to produce results directed against govt and
is not protected.
– So during war, Congress can abridge freedom of speech to
prevent action
• Js Holmes, Brandeis dissented:
– “Persecution for the expression of opinions seems
perfectly logical . . . But when men . . . come to
believe . . . that the ultimate good desired is better
reached by 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 market, and that
truth is the only ground upon which their wishes
safely can be carried out. That . . . is the theory of
our Const”
• Do things change when we’re not at war?
• **Gitlow v. New York (1925), J Sanford (7-2):
– Turns out, SCT is willing to allow for suppression of speech there,
too.
– NY passes a criminal anarchy statute after Pres McKinley was
assassinated; it’s a felony to advocate, advise or teach violent
overthrow of govt.
– Defendants members of Socialist party who published document
advocating the violent overthrow of the US; SCT upheld their
convictions.
• 1st A freedoms incorped in 14th A so states are similarly
precluded from infringing on speech. But:
– The law was not unconstitutional; the law implied an urging of
action; that’s enough to remain constitutional
• Defense had argued that the act was directly resulting from advocacy.
– Clear and present danger test didn’t apply since that applies only to
acts involving the danger of an evil.
• So the speech can be suppressed.
• Two dissents said this WAS a clear and
present danger test (so Schenck
applies); so since there was no present
danger of the violent overthrow of the
govt, there should be no convictions.
– Don’t forget: WWI and fears of
communism put the SCT on guard – they
give Congress and states power to abridge
speech.
• Congress passes Smith Act (1940), similar to
NY law; no teaching or advocating violent
overthrow of govt
• **Dennis v. U.S. (1951), CJ Vinson (7-2):
– Defendants were leaders of the Communist Party
charged with conspiring to advocate overthrow of
govt by force (conspiring to organize the CP)
• Did the Smith Act violate their 1st A rights?
• SCT upheld convictions
• CPD test applicable (so Gitlow was ignored).
Violent overthrow of US govt is an interest
Congress may protect against.
• “In each case, courts must ask whether the gravity
of the ‘evil,’ discounted by its improbability,
justifies such an invasion of free speech as it is
necessary to avoid the danger.”
• In this case, the danger was real and came with a
clear and present danger that it would occur.
• J Frankfurter concurred judgment: case
represents a balance of free speech/national
security. This is for legislatures, not courts, to
decide.
– Judicial Restraint
• J Jackson concurred judgment: CPD
does not apply here because it would
be too late for the govt to act against
overthrow.
– No individual can claim that the 1st A
protects advocating for the overthrow of
US govt. So the Schenck rule should not
apply.
• J Black dissented: there can be NO balancing of 1st
A against national security (absolutist position) for
there is NO reasonable way to balance these two
without watering down 1st A rights.
– Congress shall make NO law means NO LAW.
• Douglas dissent: 1st A. freedoms aren’t absolute.
Just allow people to read the Communist Party
Manifesto and they will realize how foolish it is and
won’t overthrow the US govt.
– This is the very basis of 1st A. freedoms!
• 1950s beginning of Cold War and fears of
communism/overthrow of US govt. Next case seems
different. . .
• So there are abstract instructions (the Smith
Act) and advocacy of action (Dennis)
– It’s ok to believe in something, but it’s not ok to be
urged to do something (like overthrow govt)
• **Yates v. U.S. (1957), J Harlan:
– Defendants convicted under Smith Act (like
Dennis case) but convictions overturned.
• Difference: here govt went after lower level members,
rather than the leaders (in Dennis)
• Smith Act did not prohibit teaching forcible
overthrow of govt as an abstract principle,
divorced from effort to instigate action to that
end.
• Dennis – conspiracy to advocate violent overthrow
of govt
– Not protected
• Yates – conspiracy to believe in something
– Protected.
• “Congress shall make no law abridging…the right
of the people to peaceably assemble, and to
petition the govt for a redress of grievances.”
– People have a right to associate with whom they want,
even if it is to oppose the govt’s actions.
– But they don’t have a right to advocate a violent coup.
• Becomes a big deal during the McCarthy Witch Hunts
• Loyalty oaths finally held to be unconstitutional.
Regulation of Speech
• Individuals have power to engage in political
speech, especially speech against the govt;
all prior cases we’ve discussed were political
speech cases.
– Political speech is core of the 1st A.
– But the right to political speech isn’t absolute (govt
can abridge)
• There are other societal interests that the courts balance
against free speech interests.
– Libel
– Slander
– Danger
– But when are restrictions reasonable, in terms of
time and place?
• 3 places where govt regs against
speech are treated differently:
– 1) traditional public forum (public streets,
parks, etc);
• Regulations are treated with suspicion; only
cons’l under exceedingly important conditions
• Must be ‘content neutral’; govt must treat all
speech similarly and can’t censor
• Can’t be overbroad
– 2) public forum (State universities); and
– 3) non-public forum (private homes)
• Free speech in traditional public
forums/settings is where we turn now.
– Breach of peace laws have been used to
suppress what would otherwise be considered
protected speech.
– This is the focus of the next case
• **Edwards v. South Carolina (1963), J
Stewart (8-1)
– 187 black high school and college students
met and walked to state capital, an area
open to public to protest discrimination
• Refused request to disperse and were arrested
for breach of peace (a criminal charge)
• SupCt: convictions unconst’al. “14th A does not permit State to
make criminal the peaceful expression of unpopular views”
– There was no violence and no expectation of it.
• J Clark dissented: Local officials ordering arrests may have
averted catastrophe, “spontaneous combustion in some
Southern towns”
• Point is: Peaceful protest in traditional public forum are const’al
and the state can’t use breach of peace laws to suppress
unpopular speech
– But officials can make it difficult to get parade permits….
• What happens when speech takes place in a public area not
quite as public as the state capitol but still owned by the public?
• **Adderly v. Florida (1966), J Black (5-4)
– Students arrested for malicious trespass on grounds of
county jail; they are protesting arrest of fellow students the
day before in a civil rights protest.
• SupCt distinguished Edwards: Breach of peace law
in Edwards were unconst’ally vague (so not allowed);
law in Adderly more specific (so is allowed)
– Edwards at State Capitol which is a public forum. Adderly jail
is publicly owned but not traditionally open to public
• Js Douglas, Warren, Brennan, Fortas dissented: “We
do violence to 1st A when we permit ‘petition for
redress of grievances’ to be turned into trespass
action”
Question about J. Black
• If he’s such an absolutist on Free Speech,
how could he have written this opinion?
• This case went beyond speech, and into the
area of action (which isn’t protected
necessarily)
– There is a broader 1st A. right to speech than
there is to protest (e.g, act)
• **Brandenburg v. Ohio (1969), Per Curiam – MOST
IMPORTANT FREE SPEECH CASE OF ALL TIME
– Leader of KKK convicted of violating the law making it crime to
advocate crime or violence.
– Jury instructions did not distinguish b/w advocacy and incitement;
convictions reversed
– SCT declares the law unconstitutional.
• Guarantee of free speech does not permit a States to forbid
advocacy of the use of force or law violation, EXCEPT when
advocacy is directed at inciting imminent lawless action and
likely to produce such action
• Laws must distinguish between abstract teaching of the violence
(as a political tool and the actual preparation of a group for
violent action. Otherwise it violates 1st and 14th A.
• Dennis test upheld
• Js Douglas, Black concurred: CPD test is no longer appropriate
(ala’ Dennis) in interpretations of 1st A. cases
• **Cohen v. California (1971), J Harlan, (7-2)each of
peace statute during a protest during Vietnam War.
– 1968: Defendant and “Fuck the Draft”
• Women and children present; he never said a word nor did he
threaten anyone.
• Arrested for ‘maliciously and willfully disturbing the peace or
quiet of any neighborhood or person by offensive conduct’
• His behavior would provoke others to violence.
• Conviction reversed; this is a speech case, not a
conduct case since it was the communication that
was punished. Defendant did not intend to incite
disobedience to draft (Yates) so he can’t be punished
for that.
• State prohibition is content based
• Statute vague by describing “offensive” behavior
• This had nothing to do with obscenity where it would
have less protection
• And since the speech wasn’t directed at anyone in
particular, there was no incitement to violence.
– Unwilling viewers could avert their eyes.
• “Free expression powerful medicine in our diverse
society.” 1st A. should be compromised bc of concern
with the community’s reaction
– Absent a more compelling reason, the state may not make
the public display of this simple 4 letter word a criminal
offense.
• Js Blackmun, Burger dissented: “absurd, immature
antic” was mainly conduct, little speech
• In Cohen:
– It was a speech case, not a conduct case
• Writing FUCK in public involves speech and is
protected.
• The writing does not constitute conduct.
– This arises again in cases involving symbolic
speech which often receives less protection than
speech itself.
Hate Speech
• Breach of peace statutes have not been
particularly successful at repressing
speech
– But other statutes limiting offensive Hate
Speech have.
– Defined: prohibitions in speech or conduct
which would tend to incite others on the
basis of race, religion or gender.
• **R.A.V. v. St. Paul (1992), J Scalia
– Even though the SCT struck down the hate speech law at
issue here based on the 1st A., they could not agree on the
reason for doing so.
– Teenagers charged with violating hate speech law when they
burned a cross on a black family’s lawn. The law prohibited
display of symbols that reasonably would arouse anger,
alarm, or resentment in others on the basis of race, religion
or gender
– Burning a cross is about as overt a symbol as you can get
• 1st A. generally prohibits govt from restricting speech
or conduct, simply bc others disapprove of the
content of that speech or conduct.
– “Content based regulations are presumptively invalid.”
– But some restrictions are valid particularly if the
speech/conduct has such a slight social value and is
outweighed by societal interests.
• SCT ruled the statute unconstitutional.
– B/c only race, religion, gender were included in the law;
other areas like political affiliation, union membership or
homosexuality were not.
• So this was a form of content based regulation.
– “The 1st A. does not permit St. Paul to impose special
prohibitions on those speakers who express views on
disfavored subjects.” “Let there be no mistake that burning a
cross in someone’s front yard is reprehensible. But St. Paul
has sufficient means to prevent such behavior without
adding the 1st A. to the fire.”
• Js White, Blackmun, O’Connor, Stevens concurred judgment:
law overbroad and thus unconstitutional bc it criminalizes
protected and unprotected conduct. The majority disregards
long-standing 1st A principles
• Virginia v. Black (2003) – Ct revisited the issue again.
– State may make it a crime to burn a cross with the intent of
intimidating someone; so symbolic expression is permitted.
But intent to intimidate is not.
EXPRESSIVE ASSOCIATION
• Boy Scouts of America v. Dale (2000), CJ Rehnquist (5-4)
– Boy scout leader’s position revoked by the Boy Scouts (a
private organization) when they learned he was a
homosexual.
– Their mission: instill a system of values in young people.
Homosexuality is against those values.
– He claimed their policy was discriminatory and since they
use public accommodations, violates Freedom of
Association.
• There is a right of association; “The forced inclusion of an
unwanted person is a group infringes on the group’s freedom of
expressive association if the presence of that person affects the
group’s ability to advocate viewpoints.”
• “Freedom of association plainly presupposes freedom not to
associate”
• J Stevens dissented (Souter, Ginsburg, Breyer):
While the Scouts claim that they teach members to
be “morally straight and clean” they also specifically
state that sex ed should be taught at home. So the
policy of excluding homosexuals went against their
own policy of not teaching sex ed.
• Ends with a strong statement against discrimination
against homosexuals:
– “Unfavorable opinions about homosexuals have ancient
roots…over the years, however, interaction with real people,
rather than mere adherence to traditional ways of thinking
about members of unfamiliar classes, have modified those
opinions.” “If we would be guided by the light of reason, we
must let our minds be bold.”
• So this is a case about the 1st A but is really a case about
homosexuality.
• FORMS OF SPEECH
• Free speech more than just words (e.g., conduct);
ideas can be communicated by symbols as well as
words.
• Tinker v. Des Moines School Dist (1969): 1st A
protected HS students wearing black arm bands to
protest Vietnam War. This was “pure speech,” quiet,
not disruptive
• But in US v. O’Brien (1968) burning your draft card on
the steps of the courthouse was illegal.
– This was conduct having no connection with speech.
• If O’Brien had merely spoken his words on the
courthouse steps, that would have been protected.
But he didn’t just speak; he used profound
symbolism in his expression and the SCT isn’t as
willing to protect conduct.
• Govt interest in regulating non-speech elements
justifies incidental limitations on 1st A freedoms
• J Douglas dissented: issue concerns legality of draft,
clearly legal in times of war, but not clear in times of
peace
– Since congress never declared the police action in Vietnam
as a war, O’Brien is simply claiming the draft is illegal in
times of peace.
• **Texas v. Johnson (1989), J Brennan (5-4)
– Johnson burned a flag in front of city hall during the 1984
GOP convention. His conviction was based solely on his
symbolic speech, not on any words he said.
– SCT held his actions were constitutionally protected.
• “Bedrock principle underlying 1st A is that govt may
not prohibit expression of an idea simply b/c society
finds the idea itself offensive or disagreeable”
– “The way to preserve the flag’s special role is not to
punish…but to persuade them that they are wrong.”
• Js Rehnquist, White, O’Connor dissented: he was
free to make any verbal denunciation of the flag he
cared to and even burn the flag in private. But this
was a powerful symbolic expression of conduct that
is not protected.
CONCLUSION
• Point of 1st A to allow many different forms of speech.
Are we willing to protect speech with which we
disagree, even speech we hate?
• Sample questions (choose the correct answer):
1) When a judge interprets the law according to the
manner in which the Framers of the Constitution
proposed, that judge is said to be engaging in judicial
behavior based upon
A. judicial restraint
B. judicial activism
C. stare decisis
D. original intent
2) Which of the following is true regarding Justice
Black’s position on incorporation of the Bill of Rights,
as he provided in Adamson v. California (1947)?
A. Fundamental rights should be selectively
incorporated through the due process clause of the
14th Amendment, and this included the right against
self-incrimination based in the 5th Amendment
B. Fundamental rights should be selectively
incorporated through the due process clause of the
14th Amendment, but the right against selfincrimination based in the 5th Amendment should not
be so incorporated.
C. There should be total incorporation of the Bill of
Rights
D. There should be no incorporation the Bill of
Rights
3) Which of the following is false regarding the
Supreme Court’s decision in Gitlow v. New York
(1925)?
A. freedom of speech is a right which was
incorporated in the 14th Amendment
B. the defendants’ actions presented a clear and
present danger
C. both A and B
D. neither A nor B