Freedom of Speech
- EARLY SUPREME COURT CASES
- WORLD WAR I CASES
- DEMOCRACY AND FREE EXPRESSION TRANSFORMED
- THEORY AND DOCTRINE
- INCONSISTENCIES AND OPEN QUESTIONS
Judges and legal scholars now view the First Amendment protection of free expression as a constitutional lodestar, but free speech and a free press have not always held that status (White 1996, pp. 300–301). While courts throughout American history have interpreted free expression in accord with contemporary understandings of democracy, the concept of democracy itself changed in the 1920s and 1930s. That change, from republican to pluralist democracy, engendered a significant transformation in free expression doctrine. But even with the emergence of free expression as constitutional lodestar, numerous issues have been and remain controversial. The Supreme Court has never held free expression to be an absolute.
For more than a century after the nation's founding, the Court avoided free applied only against the national government. Thus, when state and local governments regulated speech and writing during the antebellum Page 269 | Top of Articleperiod, lower courts developed the relevant legal doctrine from the structures of republican democratic government. Under republican democracy, virtuous citizens and officials ostensibly pursued the common good. Courts, therefore, reviewed governmental actions to ensure that they promoted the common good rather than partial or private interests. Consistent with this general practice of republican democratic judicial review, courts articulated a bad tendency test to delineate the scope of free expression. The government could not impose prior restraints on expression, but it could impose criminal penalties for speech or writing that had bad tendencies or likely harmful consequences, in contravention of the common good. Many courts added that the criminal defendant, to be convicted, must also have intended harmful consequences. Even so, under the doctrine of constructive intent, the courts typically reasoned that a defendant was presumed to have intended the natural and probable consequences of his or her statements. If a defendant's expression was found to have bad tendencies, then the defendant's criminal intent would be inferred.
EARLY SUPREME COURT CASES
After the Civil War (1861–1865), the national government became a more active regulator, and the Supreme Court's caseload gradually grew. Eventually, the Court began to hear cases that raised free expression issues. In the earliest cases, though, the justices typically subsumed these issues within a due process or economic liberty analysis (pursuant to the Fourteenth Amendment, adopted during Reconstruction). For example, early in the twentieth century, attempts to regulate the new technology of motion pictures raised novel questions. In Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230 (1915), Mutual Film argued that a law requiring governmental preapproval of movies constituted a prior restraint. The Court rejected this claim, reasoning “that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit.” The censorship statute constituted a reasonable regulation on personal liberty—that is, economic liberty—because it was “in the interest of the public morals and welfare.”
Even when the justices acknowledged a free expression question, they tended to treat the issue as an aspect of due-process liberty. In Halter v. Nebraska, 205 U.S. 34 (1907), the Court upheld the conviction, under a state flag desecration statute, of defendants who sold bottled beer affixed with labels bearing the flag. The majority opinion discussed free expression at length but as an aspect of due-process liberty rather than as a First Amendment right per se. “A state possesses all legislative power consistent with a republican form of government,” the Court wrote, “therefore each state … may, by legislation, provide not only for the health, morals, and safety of its people, but for the common good, as involved in the well-being, peace, happiness, and prosperity of the people.” Thus, “it is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.” More specifically, free expression was subordinate to any state actions promoting the community's welfare.
Justice Oliver Wendell Holmes wrote his first free expression opinion in another 1907 decision, Patterson v. Colorado, 205 U.S. 454. The Colorado Supreme Court held Patterson in contempt for publishing a cartoon and articles that allegedly could embarrass the court and interfere with its adjudication of pending cases. Holmes assumed, without deciding, that the Fourteenth Amendment proscribed state governments from infringing free expression. While unclear, Holmes seemed to discuss free expression as an aspect of liberty, as had the Halter Court, rather than suggesting that the Fourteenth Amendment applied or incorporated the First Amendment per se against the states. Simultaneously, Holmes seemed to equate Fourteenth Amendment free-expression liberty with First Amendment free expression. Either way, then, Holmes interpreted free expression, whether primarily a Fourteenth or First Amendment liberty, harmoniously with the Halter Court's understanding. Holmes wrote that “the main purpose of such constitutional provisions [protecting free speech and a free press] is ‘to prevent all such previous restraints upon publications as had been practised by other governments.’” Yet, consistent with republican democratic principles, constitutional protections of free expression “do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” In short, Holmes and the other justices understood free expression in accord with the standard nineteenth- and early-twentieth-century renditions of legal doctrine. Prior restraints were prohibited, but the government could punish speech with bad tendencies because doing so would promote the common good. Even the proscription of prior restraints, though, was sometimes more rhetorical than real. The Supreme Court, for instance, consistently upheld labor injunctions—enjoining union leaders’ and members’ expressive activities, like picketing—without acknowledging that such injunctions might be categorized as impermissible prior restraints.
WORLD WAR I CASES
Soon after Congress declared war against Germany in April 1917, Congress enacted the Espionage Act, which proscribed obstructing the draft or causing (or attempting to cause) insubordination or disloyalty within the military. Less than one year later, Congress overwhelmingly passed an amendment, the Sedition Act of 1918, which clarified the congressional desire to foster suppression. The first four
Espionage Act cases to reach the Supreme Court were not argued until January 1919, after hostilities had ended. In the first, Schenck v. United States, 249 U.S. 47 (1919), the general secretary of the Socialist Party and an executive board member were convicted for printing several thousand copies of a leaflet and mailing it to draft eligible men. The leaflet advocated for the repeal of the draft law and argued that conscription violated the Thirteenth Amendment's proscription of slavery. Holmes wrote a unanimous opinion upholding the convictions. In response to the defendants’ argument that the First Amendment protected their expression, Holmes articulated a doctrinal test: “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.” While Holmes's “clear and present danger” terminology was novel (and apparently derived from his book, The Common Law ), his application of the test demonstrated that he did not intend to articulate a new standard for delineating the scope of free expression. For Holmes, clear and present danger meant bad tendency. The First Amendment proscribed prior restraints but otherwise allowed the government to punish any speech or writing that would contravene the common good.
One week later, the Court unanimously decided two more Espionage Act cases: Frohwerk v. United States, 249 U.S. 204 (1919) and Debs v. United States, 249 U.S. 211 (1919), the first cases prosecuted under the amended Act to reach the Court. Writing the Court's opinions in both cases, Holmes ignored his clear and present danger terminology. Indeed, in Debs, Holmes explicitly approved a jury instruction that presented the bad tendency test in conventional terms. The jurors, as charged, “could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind.” Holmes also recognized that the jury could find constructive intent; the jury could infer the defendant's intent to obstruct the draft from the bad tendencies of his words. Any further potential First Amendment issues, Holmes noted, had been “disposed of in Schenck v. United States.” Thus, the first set of World War I (1914–1918) free-expression cases revealed that all of the justices, including Holmes, considered free expression to be an individual liberty like any other under republican democracy, subordinate to governmental actions furthering the common good. The government could punish any speech or writing that impeded the national war effort because such expression would be deemed harmful or with bad tendencies.
Eight months later, the Court decided its next Espionage Act case, Abrams v. United States, 250 U.S. 616 (1919). The defendants had been convicted for printing and distributing leaflets that criticized President Woodrow Wilson's leadership during the war. Affirming the convictions, the Court brushed aside the defendants’ First Amendment arguments by reasoning that Schenck and Frohwerk controlled. Surprisingly, Holmes and Justice Louis Brandeis dissented, with Brandeis joining Holmes's opinion. Holmes asserted the correctness of the Court's previous decisions in Schenck, Frohwerk, and Debs, and then reiterated his clear and present danger phrasing from Schenck. Now, though, Holmes imbued this phrase with new vigor; it no longer equated with the bad tendency test. In applying the clear and present danger test, Holmes stressed that Abrams and his co-defendants were “poor and puny anonymities,” their writings were insignificant, and the government should not have prosecuted. “Nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.” In short, the government had not proven clear and present danger because the defendants and their writings were so inconsequential.
Holmes reasoned that a societal search for truth justified an expansive concept of free expression under the First Amendment.
When men have realized that time has upset many fighting faiths, they may come to believe even Page 271 | Top of Articlemore than they believe the very foundations of their own conduct 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.
Holmes linked the search-for-truth rationale with the clear and present danger test. “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death,” he warned, “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” The government, that is, should allow speech and writing to flow into a marketplace of ideas. From this free exchange of ideas, the truth will emerge. Harmful ideas must be met with better ideas—counterspeech—rather than with force or suppression. The only ideas (speech and writing) that should be restricted are those that would inhibit the further exchange of ideas—namely, those that would engender a clear and present (or imminent) danger of unlawful or harmful conduct.
DEMOCRACY AND FREE EXPRESSION TRANSFORMED
Through the 1920s, the Court continued to interpret the First Amendment narrowly, in accord with republican democratic principles. Holmes and Brandeis often dissented while relying on the clear and present danger test, as distinct from the bad tendency test. During the war and the postwar Red Scare, numerous states had passed criminal syndicalism statutes, and challenges to convictions under these laws began to reach the Court in mid-decade. Gitlow v. New York, 268 U.S. 652 (1925) was first. Benjamin Gitlow had been convicted under a New York statute that proscribed advocating the overthrow of the government. Although Justice Edward Sanford (1865–1930) wrote for a seven-justice majority upholding the conviction (Holmes and Brandeis dissented), Sanford began with a point that would facilitate the future expansion of free expression protections. The Fourteenth Amendment's due process clause incorporated (or applied) the free speech and free press clauses to restrict state and local governments. This holding assured a steady flow of First Amendment cases into the federal courts, including the Supreme Court. Regardless, Sanford reasoned the Court must defer to the legislature's determination that the punished language was “inimical to the public welfare,” given that such determination was not arbitrary.
The Court upheld another conviction in Whitney v. California, 274 U.S. 357 (1927). Sanford wrote the majority opinion, while Brandeis, joined by Holmes, wrote a separate opinion concurring in the judgment. California convicted Charlotte Whitney, a member of the Communist Labor Party, for organizing and belonging to an organization advocating criminal syndicalism, even though Whitney personally sought peaceful political change. Brandeis's opinion was more like a dissent than a concurrence (Brandeis concurred because Whitney had not adequately raised the free expression issues). The defendant, Brandeis explained, should have the opportunity to show that, based on the specific facts of the case, the statute was unconstitutionally applied because no clear and present danger existed. Acknowledging that the parameters of the clear and present danger test remained obscure, Brandeis articulated three justifications for broadly protecting expression—justifications that theorists would develop over the next decades into the primary rationales for an expansive interpretation of the First Amendment. First, Brandeis reiterated the search-for-truth or marketplace rationale, emphasizing that counter-speech “affords ordinarily adequate protection against the dissemination of noxious doctrine.” Second, Brandeis linked free expression to democratic government, though he did not argue that freedom to express one's opinion on political issues is prerequisite to full democratic participation. Rather, consistent with republican democracy, he maintained “that public discussion is a political duty” and that free discussion of “supposed grievances and proposed remedies” nurtures stable government. Through public discussion of political issues, Brandeis implied, the citizenry discerns the public good. Third, Brandeis alluded to the inherent value of individual liberty: The founders “valued liberty both as an end and as a means.” Free expression not only was a means to truth or free government; it was valuable in and of itself.
These three philosophical rationales, particularly the search-for-truth and democratic-governance rationales, infused the clear and present danger test with substance and clarity. “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 opportunity for full discussion,” Brandeis wrote. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” The only expression that should be punished is that which would likely engender an imminent (or present) danger of unlawful or harmful conduct and would therefore preclude any further discussion or exchange of ideas. Meanwhile, for expression to constitute a “clear” danger, Brandeis explained that it must generate a probability of “serious evil” or injury. Because free expression is so significant to Page 272 | Top of Articlerepublican democratic government, punishment “would be inappropriate as the means for averting a relatively trivial harm to society.”
In 1931, the Court decided its first two cases validating free expression claims. In Stromberg v. California, 283 U.S. 359 (1931), the state convicted Yetta Stromberg for displaying a red (Communist) flag as a sign of “opposition to organized government.” The Court reasoned that the statute, as interpreted by the state courts, “might be construed to include the peaceful and orderly opposition to a government as organized and controlled by one political party by those of another political party.” This statutory proscription on expression was “so vague” on “its face” that the Court held it unconstitutional. The case manifested a victory for free expression, though Chief Justice Charles E. Hughes's opinion was ambiguous: It could be construed as either relying on free speech, due process, or both. In the second case, Near v. Minnesota, 283 U.S. 697 (1931), J. M. Near's weekly newspaper repeatedly published anti-Semitic articles accusing Minneapolis public officials of corruption. Pursuant to a state statute providing “for the abatement, as a public nuisance, of a ‘malicious, scandalous and defamatory newspaper, magazine or other periodical,’” a county attorney sought to enjoin further publications. The state courts granted the injunction, but the Court reversed, holding that the injunction constituted a prior restraint violating freedom of the press.
At this stage, the justices still conceptualized free expression within the structures of republican democracy. Yet, by the late 1920s and early to mid-1930s, republican democracy was crumbling, and the practices of pluralist democracy were crystallizing under the pressures of industrialization, immigration, and urbanization. In the republican system, an alleged lack of civic virtue could preclude one from participating in democratic processes. On this ground, the exclusion of African Americans, Irish-Catholic immigrants, and other peripheral groups was supposedly justified. Under pluralist democracy, however, one did not need to demonstrate civic virtue to qualify as a participant. During the 1930s, many ethnic and immigrant urbanites who had previously been discouraged from partaking in national politics became voters and actively cast their support for the New Deal. Moreover, pluralist democracy acknowledged that politics was about the pursuit of self-interest. Interest-group efforts to satisfy preexisting values and desires became normal and legitimate. Governmental goals could no longer be condemned as contravening the common good; all such substantive goals were determined through interest-group bargaining and coalition building. Ultimately, then, pluralist democracy was defined through processes that ensured full and fair participation, the assertion of one's interests and values, especially in the legislative arena.
Starting in 1937 and then in following years, the Court accepted the structures of pluralist democracy, and in doing so, the justices rendered judicial review problematic. Previously, courts had used their power to enforce basic republican democratic principles: upholding governmental actions that promoted the common good and invalidating actions that furthered partial or private interests. With the repudiation of republican democracy, the purpose of judicial review became obscure, but over time, the Supreme Court developed new doctrines to implement its power. In the free expression context, the change began with Herndon v. Lowry, 301 U.S. 242 (1937). The Court reversed Georgia's conviction of Angelo Herndon, a black Communist Party organizer, who had attempted to persuade other individuals, mostly African Americans, to join the party. Justice Owen Roberts's (1875–1955) confusing majority opinion rested on multiple grounds, yet it nonetheless marked a significant doctrinal turn. Roberts invoked the clear and present danger test while repudiating the bad tendency test, and also created a presumption favoring the protection of expression. Subsequently, in a phenomenal string of cases from 1938 to 1940, the Court upheld one free expression claim after another. For instance, Hague v. C.I.O., 307 U.S. 496 (1939) upheld the right of labor unions to organize and distribute literature in the streets and parks, which the Court now deemed public fora. Cantwell v. Connecticut, 310 U.S. 296 (1940) held that a conviction for breach of the peace violated free expression even though the defendant had “incensed” passersby by playing a phonograph record attacking their religion. In the new regime of pluralist democracy, free expression became a constitutional lodestar.
THEORY AND DOCTRINE
The post-1937 Court elaborated and primarily relied on Brandeis's three theoretical rationales to justify the new expansive protection of free expression. The justices persistently reiterated the search-for-truth theory. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) the Court reasoned that certain types of speech, particularly so-called fighting words—“those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”—do not deserve constitutional protection because “such utterances are no essential part of any exposition of ideas,” and thus do not contribute to the discovery of “truth.” The justices have continued to invoke the search-for-truth rationale ever since. In Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969) a unanimous Court wrote that “it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”
The justices also relied increasingly on a democratic- or self-governance rationale that they shaped to harmonize with the emergent pluralist democracy. Pluralist democratic government depended on adherence to certain governmental processes, and no liberty seemed more central to those governmental processes than free expression. Free speech and writing allowed diverse groups and individuals to contribute their views in the pluralist political arena. If governmental officials interfered with the pluralist process, if they dictated or controlled public debates, then they would skew the democratic outcomes and undermine the consent of the governed. No less so than voting, free expression was a prerequisite for pluralist democracy. The Court, when discussing free expression in Thornhill v. Alabama, 310 U.S. 88 (1940), emphasized that government cannot be allowed to “diminish the effective exercise of rights so necessary to the maintenance of democratic institutions.” In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) the Court reasoned: “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.”
During the post–World War II era, scholars developed a self-fulfillment rationale that the justices soon began to invoke. Thomas I. Emerson (1907–1991) began with “the widely accepted premise of Western thought that the proper end of man is the realization of his character and potentialities as a human being” (1963, p. 879). From this premise, Emerson reasoned, “every man—in the development of his own personality—has the right to form his own beliefs and opinions” (p. 879). Moreover, it “follows that he has the right to express these beliefs and opinions” (p. 879). Free expression, therefore, allows the individual “to realize his potentiality as a human being” (p. 879). In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), Justice David Souter described “the fundamental rule of protection under the First Amendment [to be] that a speaker has the autonomy to choose the content of his own message.” Partly because the self-fulfillment rationale is not instrumental—it values expression as an end in itself rather than as a means to other ends, such as truth—it justifies an expansive concept of free expression. As Justice Thurgood Marshall phrased it in his concurrence in Procunier v. Martinez, 416 U.S. 396 (1974), free expression “serves … the needs of … the human spirit—a spirit that demands self-expression.”
Over time, the Court developed two overarching doctrines that it used to adjudicate free-expression disputes: the two-level approach and balancing. Under the two-level approach, the First Amendment fully protects speech and writing unless the expression falls into a low-value category, in which case the expression is unprotected. In Chaplinsky, the Court identified several low-value categories: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” If the Court designated disputed speech to be, for example, obscene, then the government could punish the speaker; the First Amendment did not shield the expression. The Court's two-level approach to free expression can be contentious in two ways. The Court's initial designation of expression as a low-value category (or not) can provoke vigorous disagreement; the Court often invokes a theoretical rationale such as self-governance to justify its categorization. And once the Court defines a low-value category, the identification of specific materials as within that category can generate disputes. Most justices long agreed that obscenity should be a low-value category, but for decades, until Miller v. California, 413 U.S. 15 (1973), they were unable to converge on a single doctrinal test for identifying materials as obscene.
The predominant alternative to the two-level doctrine was the balancing test, which became especially common in disputes involving time, place, and manner rather than content based restrictions on expression. In one time, place, and manner case, Martin v. Struthers, 319 U.S. 141 (1943), the Court held that the defendant's conviction for distributing leaflets door-to-door violated free expression. “We are faced in the instant case with the necessity of weighing the conflicting interests of the appellant in the civil rights she claims,” explained the majority opinion, “as well as the right of the individual householder to determine whether he is willing to receive her message, against the interest of the community which by this ordinance offers to protect the interests of all of its citizens, whether particular citizens want that protection or not.” While the Martin Court suggested that it weighed the various interests evenhandedly, the Court often skewed the balance against the government to create, in effect, a presumption favoring the protection of speech and writing (commensurate with the status of free expression Page 274 | Top of Articleas constitutional lodestar). In Schneider v. State, 308 U.S. 147 (1939) the Court distinguished free-expression balancing cases from others: “Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.” In numerous cases, the Court translated this skewed balancing test into the clear and present danger standard. For example, when the Court weighed competing interests in Thornhill, it focused on whether the statutorily proscribed behavior created a “clear and present danger of destruction of life or property.” As then interpreted, the clear and present danger test strongly protected speech and writing. “What finally emerges from the ‘clear and present danger’ cases,” the Court explained in Bridges v. California, 314 U.S. 252 (1941), “is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”
INCONSISTENCIES AND OPEN QUESTIONS
The justices can invoke numerous landmark cases to demonstrate the status of free expression as constitutional lodestar. Brandenburg v. Ohio, 395 U.S. 444 (1969) directly confronted the issue raised during the Espionage Act cases: when, if ever, did the Constitution protect expression encouraging unlawful conduct, particularly subversive advocacy? The state convicted a Ku Klux Klan leader pursuant to the Ohio Criminal Syndicalism statute, which resembled the California statute upheld in Whitney in 1927. But now, the Court dramatically expanded free expression doctrine. Under the Brandenburg test, the First Amendment protects expression unless the speaker specifically intends to incite imminent unlawful action, and such unlawful action is likely to occur imminently. New York Times v. Sullivan, 376 U.S. 254 (1964) asked whether the First Amendment protected the press from civil libel actions brought by governmental officials. The Times had published a full-page advertisement that solicited support for the civil rights movement and criticized the Montgomery, Alabama, police commissioner, but contained several minor factual errors. The police commissioner successfully brought a civil action in the state courts for defamation. The Court had previously recognized defamation as a low-value category, yet this case resembled a criminal prosecution for seditious libel: The government, through the institution of the state courts, sought to punish the press for criticizing a public official, the police commissioner. Reversing, a unanimous Court relied on both the self-governance and search-for-truth rationales. “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” After deeming governmental prosecution of seditious libel unconstitutional, the Court reasoned that if a state could not constitutionally punish criticisms of governmental policies and officials through a criminal prosecution, then it should not be able to impose punishment through a civil defamation action. Instead, a “public official” can recover “damages for a defamatory falsehood relating to his official conduct” only if “he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Despite many encomiums to such landmark cases, the Court has not consistently protected free expression. During the post—World War II Red Scare, the federal government convicted eleven leaders of the Communist Party of the United States (CPUSA) for conspiring both to organize the CPUSA and to advocate for the violent overthrow of the government, though the prosecution proved only that the defendants taught Marxist-Leninist doctrine. The Court upheld the convictions in Dennis v. United States, 341 U.S. 494 (1951), with Chief Justice Fred M. Vinson's plurality opinion applying the clear and present danger test as reformulated by Judge Learned Hand of the Second Circuit. “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In this particular case, the advocated evil—the violent overthrow of the government—was so grave as to overcome its improbability. Clear and present danger “cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited.” The Court's decision prompted the government to begin arresting and indicting CPUSA members en masse.
Overall, “the outliers in American politics were more often than not the victims than the beneficiaries” of the Court's decisions (Graber 2002, p. 310). In the 1960s, for example, the Court refused to recognize a right to protest, though such political expression resonated with the self-governance rationale. In Adderley v. Florida, 385 U.S. 39 (1966), 200 college students marched from their school to a jail to protest the prior arrest of other students (for protesting racial segregation). The Court upheld the convictions of the protesters for trespassing on jail premises. The majority reasoned that because of the protesters’ conduct, regardless of their message, the state could apply its general law proscribing trespasses. Justice William O. Page 275 | Top of ArticleDouglas dissented, emphasizing that in protest cases the government always claimed to apply some general criminal law proscribing trespass, breach of the peace, or the like. And the government always claimed that the message was irrelevant to the prosecution. Given the political nature of the defendants’ expression in Adderley, however, the jailhouse appeared to be the perfect location for the protest. Not only do members of peripheral groups often find their expression unprotected, as in Adderley, they also often find themselves the targets of expression that the Court deems constitutionally protected. Brandenburg provides but one example, as the Court interpreted the First Amendment to protect a Klan leader's malicious hate speech directed against racial and religious minorities.
Partly because of the Court's inconsistencies, many free-expression issues remain open, including some overarching doctrinal matters. Should the Court recognize additional low-value categories, like hate speech, thus placing more expression outside of First Amendment protections? Or should the Court even eliminate the oft-criticized two-level approach, supplanting it perhaps with balancing tests? Moreover, forces internal and external to pluralist democracy will continue to generate pressing free expression issues. For instance, changes in communication technology—in particular, the rise of the Internet—has spurred some to declare that Americans could more widely and actively participate in democracy, registering their preferences through some form of online communication. While such changes in democracy are still conjectural, online communications have already begun to present novel free expression issues. For instance, should the government be able to restrict online content that might be viewed by children? So far, the Court has limited governmental power to impose content-based restrictions on the Internet, though the Court has emphasized that the law remains unsettled because of the rapidly changing technology. Meanwhile, as pluralist democracy has become more commercialized—election campaigns now resemble advertising campaigns for products—pressures have built to promote fairness and integrity in democracy by restricting the amount of wealth that individuals and corporations can contribute or spend in support of particular candidates. But are government imposed limits on political contributions and expenditures unconstitutional restrictions on free expression? In response to congressional restrictions, the Court has waffled, upholding some while invalidating others. More recently, the Court has become less receptive to such restrictions. Finally, in the past, the government has often responded to perceived external threats to the nation—for example, during World War I and the 1950s Red Scare—by restricting civil liberties, including free expression. Such restrictions, the government typically claims, are necessary to enhance national security in a time of crisis. The war on terror has thus predictably generated governmental policies that threaten individual rights. The Court, to this point, has been reluctant to confront these issues, mixing national security and individual liberties, though the Court has clearly held that the executive branch will not be given free rein to restrict civil liberties without any judicial oversight.
Overall, though, in early-twenty-first-century free-expression cases, the Roberts Court has shown a strong conservative bent, favoring the government and corporate entities. For example, in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006) the Court held that the First Amendment does not shield a government employee from being punished for expression uttered in the course of the employee's official duties, even if the expression concerned a matter of public concern. In Morse v. Frederick, 127 S.Ct. 2618 (2007) the Court deferred to a high school principal's decision to punish a student for displaying a banner bearing an ambiguous message (“BONG HiTS 4 JESUS”). These conservative decisions are generally consistent with the direction that the Roberts Court has moved in other areas.
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Stephen M. Feldman
Gale Document Number: GALE|CX3241200383