Free Speech and Constitutional Law Jarrett Americans typically take the right to free speech to be among their most basic rights. However nothing was specifically said about freedom of speech in the original Constitution. To address this, we added the First Amendment as part of the Bill of Rights. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Unfortunately, this thin fragment says nothing about what this right to free speech really amounts to — it just says there is a right, and that it shall not be prohibited by Congress. More importantly, nothing is said about the limits of free speech. Some people think that because it says, “it shall not be prohibited,” this means that it is an absolute right, with no exceptions. However, the First Amendment does not say it is an absolute right, and no serious interpreter of the constitutional law reads it that way. Even extreme libertarians, for example, think there should be some limits — say against lying in formal contracts (fraud). If I am not free to lie in forming a fraudulent contract, then my right to freedom of expression is not absolute. So how do we go about deciding what are the limits of free speech? It is a mistake to think that we just look at the above words and interpret them as best we can. No doubt this is part of the process, but the wording of the First Amendment — and everything else in the Bill of Rights — is objectively vague or unclear. In fact, the First Amendment only says that free speech cannot be denied by Congress. Further, situations arise in which the authors of the Constitution had never thought about. For example, what happens when the First Amendment conflicts with the 14th Amendment? Or could they even conceive of Internet child pornography? In fact, most established constitutional law is not contained in the Constitution, nor in the 27 Amendments. Most of constitutional law (at least according to developmentalists) is contained in the series of court decisions where judges have ruled on specific cases, establishing precedents for future cases. Now when lawyers and judges decide a new case, they must take into consideration this series of precedents. (If you study constitutional law, you will spend very little time reading the Constitution). Included here are some of the decisions that explain how the courts understand the First Amendment today. Incorporation. Until 1925, the First Amendment was taken only to apply to the Federal Congress. In Gitlow v. New York the Court decided that free speech is one of the basic liberties protected by the due process clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” (see “substantive due process”). To say the right was “incorporated” means that the right is extended to state and local law. The First Amendment is no longer just about Congress. Defamation of Character (libel & slander). In a series of rulings, the courts have limited speech that constitutes defamation of character — in other words, speech that makes statements about a person which are both false, and which damage the person’s reputation, job prospects, etc. (It is okay to “defame” someone if what you say is true). One thing this shows is that while free speech must cover false speech, there is less protection for speech that the speaker knows to be false, and which is damaging. Sullivan Rule. However, this brought numerous lawsuits by newspapers that this violated freedom of the press. In New York Times v. Sullivan (1964) it was decided that “public figures” — for example politicians and movie stars are subject to more scrutiny than private persons. While such public figures can still sue for defamation, it is considerably more difficult for them to win such a case, since under the Sullivan Rule, the plaintiff must prove that the speaker had “actual malice” in making the statement. In other words, the plaintiff would have the burden of proof in showing that the publisher knew the statement was false, and intended it to be damaging to the person’s character. Clear and Present Danger. One important development in free speech law occurred in the 1919 case, Schenck v. United States. Charles Schenck had been distributing pamphlets against the military draft. Unfortunately for Schenck, this violated the Espionage Act. Schenck had been expressing his free speech peacefully, yet Congress had enacted a law forbidding interfering with military operations. How do we decide? In Schenck the Supreme Court unanimously upheld the Espionage Act. Chief Justice Oliver Wendell Holmes wrote: The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic... The question in every case is whether the words used are 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. This has come to be known as the “clear and present danger test.” Free speech can be limited when it is ruled to constitute a real and immediate threat to public safety. By the way, we are now allowed to protest the draft — not because the clear and present danger test has been thrown out, but because, in part, it is not at all clear that such protests pose a clear and present danger after all. Fighting Words Doctrine. Another important development occurred in 1942. Walter Chaplinsky, a Jehovah’s Witness, was passing out pamphlets attacking organized religion. That’s his right — or he thought. Unfortunately this drew a huge angry crowd. The police removed Chaplinsky. Extremely angry, Chaplinsky called the police chief a “God-damned racketeer,” “a damned fascist,” and a “fascist bedbug.” Apparently, this violated New Hampshire’s Offensive Conduct Law. Can free speech really be limited just for being offensive? In Chaplinsky v. New Hampshire the Supreme Court held that: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those [that] by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and 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. In other words, there is only so much a man can take. Some expressions, by their nature, are likely to provoke an immediate visceral response when spoken to the face of the listener. This was ruled enough to limit free speech. This has come to be known as “fighting words” doctrine. Note that this does not ban any particular words, but rather expressions used in a certain way, in a certain context, likely to provoke a certain response. (Also note that the word “fascist” has lost much of its emotional force). The First vs The Fourteenth. You have probably heard of the landmark case Brown v. Board of Education, which effectively ended the segregation. In this case, segregation of schools, or “separate but equal” treatment of African Americans was ruled unconstitutional, on the grounds that it violated the 14th Amendment. Part of section 1 of this Amendment reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” For current purposes, the important part of this is the equal protection clause. “Separate but equal” was ruled to be effectively unequal. This is fine and good, but what does this have to do with free speech? The Brown ruling led to the Civil Rights Act 1964.” Title II of this act banned segregation in public establishments such as restaurants and hotels. As a consequence, it became illegal to post a sign such as “colored” or “white” in such a business, regardless of intention — even if it was not enforced and was simply a relic of the past. Having such a sign has the effect of establishing a separate but equal policy, regardless of the actual intentions or actions. This means that certain kinds of racist speech are unprotected, and that the First Amendment, in this particular context, is trumped by the Fourteenth Amendment. (Such a sign may be displayed as a museum piece, but not put above the museum drinking fountains). Flag-burning. In 1969 Sidney Street violated a New York law banning the desecration of the flag. The case went to the Supreme Court. The state of New York argued that the burning of the flag was such an extreme statement that it was limited by “fighting words” doctrine established in Chaplinsky. However, the court did not see it that way. In Street v. New York the Court ruled that fighting words must include words, and flag burning is not words. Further, the courts ruled that “mere offensiveness” was not enough to constitute fighting words, since there must be a real threat to violence (a clear and present danger). Later Court decisions have repeatedly supported the right to burn the flag as protected by the First Amendment. Face-to-face insults & captive audiences. Fighting words doctrine was further limited a few years later, when a young man was arrested for wearing a jacket with seemingly offense words. In Cohen v. California (1972) the court ruled that something does not count as fighting words unless it is aimed directly at someone. Cohen’s t-shirt, which said. “Fuck the Draft,” contained no "personally abusive epithets," and so it was sufficiently different from Chaplinsky. In other words, these were not fighting words because they weren’t said or directed to any person or group. Further, people on the street had the opportunity to leave or look away (see next section). This established what is now called captive audience doctrine. We are not guaranteed a right to an audience. Cohen’s case may have turned out differently if it involved a captive audience — one who cannot reasonably avoid confronting the content. For example, if he were a professor wearing the same jacket in his classroom, the case would be quite different. While students can get up and leave, they are taking the course for credit and leaving would not be reasonable given that attendence is required. NOTE: This doesn’t mean that it is unconstitutional for a professor to wear such a jacket to class. The question is whether a new law or school regulation prohibiting this would be constitutional. That is unclear, given that we have broad academic freedom. However, if we were to watch a porn movie in class, it would be wise excuse those who did not want to view it. Obscenity. In Miller v. California (1973), the Supreme Court ruled that freedom of speech may be limited when it is obscene. But what counts as obscene? Chief Justice Warren Burger wrote that: The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This account of obscenity still stands today — although our “community standards” have changed dramatically. Hate Crimes and the Law. In 1992 the first “hate crime” law was challenged on the grounds of violating free speech. The state of Minnesota had a law which “Prohibits 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.” This law was tested when KKK member Robert Viktora was arrested for burning a cross in front of the home (front lawn) of an African American family. This was just the kind of hate crime the law was intended to restrict. But in R.A.V. v. St. Paul (1992) the Supreme Court overturned the state law, arguing that free speech cannot be limited solely by the content (ideas) of the speech. The court assumed a distinction between the content (meaning) of the words, and “mode of expression.” (This is a common distinction in First Amendment law). The Minnesota law was struck down for regulating the expression of ideas. This was seen as a major blow against hate crime laws, since it was unconstitutional for a law to ban the content of racist or other hateful speech. The following year, however, the same court ruled somewhat differently. An African American man, Todd Mitchell, was arrested for attacking and rendering unconscious another young man after watching the movie “Mississippi Burning.” Mitchell was heard yelling, “Do you feel hyped up enough to move on some white people?”…“There goes a white boy; go get him.” Mitchell was charged with assault, and with violating Wisconsin’s hate crime law. This time, the same Court upheld the hate crime law, on the grounds that it did not ban the content of speech, but rather used such content to establish a hateful motive. In other words, Mitchell was not arrested for the content of his speech; he was arrested and found guilty of assault & battery. The content of his speech was not used as evidence in the guilt phase of the trial. Rather it was used as evidence for the severity of his crime in the punishment phase of the trial. Thus we cannot be arrested for hateful things we say, but what we do say can be used against us in determining the severity of our punishment. Laws that mandate harsher punishments for hate-motivated crime appear to be constitutional. Since this decision, the Wisconsin law has become the model for structuring hate-crime and hate-speech laws. Funerals. There have been a number of recent rulings about protests and hateful expression at funerals, including military funerals (See Snyder v. Phelps and United States v. Stevens . Several cases have involved protests over gays in the military, with protesters —members of the Westboro Baptist Church — shouting and holding placards saying, "God Hates Fags," and "Thank God for IEDs" (the improvised explosive devices that killed the soldier in question). The Court has ruled to protect such speech at funerals, but only if the protest is at least 300 ft. away, not trespassing, and it "addresses matters of public import." Since the protesters were on public land, sufficiently far away (?), AND were addressing a politically important topic (gays in the military), this protest was within the law. Notice how free speech was not taken as an all-or-nothing rule, but is balanced (correctly or not) against competing values. Corporations. In the controversial case Citizens United v. FEC, the Court overturned a popular campaign finance reform law. The Court upheld that corporations, as collections of people, have full First Amendment rights. They further ruled that the free speech clause covers spending/donating money to support speech. This effectively gutted the popular McCain-Feingold Act, which limited corporate sponsored “attack ads” and other “soft money” influences on elections. [Please do not quote or paraphrase this document. Only quote or paraphrase real published authors. NEVER QUOTE ME — GJ]. Theories of Free Speech JARRETT Freedom of expression is thought to be one of our most basic liberties, or negative rights. One reason for protecting speech is that that it is a freedom like any other, like the freedom to scratch my nose. But we tend to protect freedom of speech much more than most forms of conduct. Why? You could say that unlike scratching my nose, speech is protected by the 1st Amendment. But this doesn’t explain why the first Amendment is important (Why shouldn’t the First Amendment be repealed?). Further, it doesn’t give guidance on how to resolve controversies about when speech should be protected when this right conflicts with other rights and values. In deciding how and when to protect or limit speech in the future, it is important to consider not only legal precedent, but also the philosophical principles that inform such decisions about both why speech deserves extra protection, and when censorship is justified, or otherwise how to balance the value of speech with considerations such as public safety, decency, or human well-being. Following are four theories of free speech that are influential in both philosophical and judicial thinking. 1. The Democracy Theory. This model looks at free speech not from the perspective of the individual speaker, but from the perspective of the political community (nation) as a whole. Free speech is of special importance because it is the foundation of a democratic society. This is for three reasons: First, democracy requires that voters are well informed about the issues, and about the candidates we are voting on. Thus, it is in the interest of the democratic system that we do not suppress discussion and criticism of competing ideas. Second, a democracy works by holding elected officials accountable. A society where criticism of government is suppressed is a society where elected officials are not freely or fairly maintaining their offices. It would not really be a democracy. Therefore we should be especially vigorous in protecting criticism of government officials and their policies. Third, James Madison — who penned the First Amendment — made the point that free speech is importantly different from other rights, in that it is necessary for defending all our other rights from erosion. When the government is imposing laws creeping into our privacy or other fundamental protections, we need to be able to speak out against such action. The latter links Meiklejohn to Democracy theory. The former is kind of a fortune cookie, but I think he is distinguishing between speech and the RIGHT to speech. For example, time-and-place limitations do not abide the right to speech anymore than time-and-place limitations abridge the right to bear arms. Alexander Meiklejohn allegiance to democracy theory is seen in the line, “the ultimate purpose of the First Amendment is voting.” He defends this approach with the analogy of the town hall meeting (see link). Such a meeting would typically have a moderator, or if not, speakers would have to impose self-moderation. One interesting point that Meiklejohn makes is that political speech becomes dysfunctional through sheer repetition. We would want to hear as many “takes” as possible on why we should build a monorail. But if one person (or group) simply keeps repeating the same point again and again, and this has the effect of suppressing other ideas about the monorail, the moderator should ask the person to shut up or leave. (This point might also be applied to the marketplace of ideas theory, but we should also wonder if the model of the town hall meeting fits every forum). “The First Amendment allows abridging of speech but does not allow abridging of freedom of speech.” Here Meiklejohn is claiming the there’s a difference between speech and the right to speech. For example, time-and-place limitations on speech do not abide the right to speech anymore than time-and-place limitations abridge the right to bear arms. If you try to use the town hall meeting to advertise your business, we can silence your speech. This is not depriving you of your right to speech, since you can go outside and advertise. Probably everyone who supports democracy endorses this view in some form. The important criticisms are that it is not sufficiently general to cover all kinds of expression. If this were the only explanation of the value of free speech, then only ideas with political content would deserve extra protection. Most of our expression, including music, poetry readings, lectures on sex, and internet chat has no direct political content — at least insofar as would translate to the election process. Further, the theory cannot explain why free speech is important in a nondemocratic society. So the theory seems too limited. But even if this view is only a partial account, it does explain the court’s putting special emphasis in defending political expression. For example, in cases of protecting protests at funerals, such as United States v. Stevens, the Court pointed to the fact that the protest involved a topic of political importance — about gays in the military — must be protected. But there might be a more serious objection. It can be argued that if a democracy needs a well-informed public, then why should we protect patently FALSE speech? Of course we want to protect competing ideas without prejudging which are best. But most political ads, for example, really distort and confuse the issues, offering misleading representations of opponents and issues. If we really thought that a wellinformed public was key, then perhaps we should not protect such expression after all. On the other hand, some would say that it is a virtue of this theory that a case can be made for censorship, or at least requiring political ads to pass a minimal factchecking review (by whom?). 2. Autonomy Theory. This approach, championed by Thomas Scanlon, explains free speech from the perspective of the audience, and out right to hear ideas. On this view, adult human beings are rational, autonomous agents — people who have the capacity to make up their own minds about issues (political, moral, or artistic). Of course I might make an error in judgment and come to believe something false, but this is my right. To decide for me what is true or false is to fail to respect me as a free autonomous agent. On this view, speech should never be restricted on the basis of its content (ideas) alone, no matter how wrong or even threatening to social norms. The content of speech should only be restricted when it “bypasses” our rational capacities to make up our minds (For example, genuine brain washing, or falsely yelling “fire” in a crowded theater). So this theory is consistent with the restrictions of fighting words doctrine. This is the most permissive (liberal) theory of speech. And certainly the courts have been keen to maintain a distinction between the content of what is said, and its mode of delivery. In other words, the courts are much more likely to defend the right to express your idea than to protect how or where you expressed it. However, this distinction between content and mode of delivery, while intuitive, can be criticized as being too black and white (a false dichotomy). In artistic expression, such as Billy Holliday’s song, “Strange Fruit,” how she expresses her idea — the mode of delivery, seems hard to separate from the idea itself. If we censored the song and just allowed her to say “It sorrows me that Blacks are lynched,” it would not carry the same force. For this reason, Thomas Scanlon thinks even the mode of delivery should be protected, except for example when it is too loud and damages our eardrums (against our will). Critics maintain that this view is too permissive, potentially protecting speech that poses a clear and present danger. (Consider, for example, videos calmly instructing people to blow up the World Trade Center). In his later years, even Scanlon has backed off of some of the more extreme interpretations of his view. There can be important reasons — like public safety — to limit speech. However, he still holds that we cannot limit speech on the grounds that the government is better able to decide what is true than the citizen. This is paternalistic, and fails to respect citizens as rational autonomous beings. 3. The Marketplace of Ideas. Perhaps the most influential theory of free speech was expressed by the utilitarian philosopher John Stuart Mill. Mill points to a broader social benefit of free expression. Mill held that in a society where the expression of ideas are actively encouraged and criticized, true ideas will tend to “win out” in a free competition with false of bad ideas. Of course there will be many false or bad ideas, and this may cause harm in the short run. But in the long run, free examination and criticism will more likely expose false ideas, while the best ideas will prevail. This is an analogy to the free-market system, where we encourage free competition among products in the hopes that the best ones will “win” out — thus benefiting society as a whole. In On Liberty, Mill makes this argument forcefully: First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. On Liberty, Part II There are two related ideas in the marketplace model: True ideas will win out in free competition. False ideas will tend to lose out when exposed to criticism. These may seem like two ways of saying the same thing, but they are separate claims. In actual practice, it could turn out that the marketplace does a better job at exposing falsehoods than promoting actual positive truth. Or the opposite could turn out to be the case. One criticism of this view is that it presupposes that speech has a truth-value — that it is true or false (or half true). But again, artistic expression need not be understood this way. Perhaps we can substitute “best” or “of greatest value” for “true” in artistic expression. Then we must endure a lot of crappy music in order that the good stuff will emerge from the heap. This is at least in the spirit of Mill’s idea, although it may be easier to “shoot down” a false idea with rational discussion than to shoot down crappy music. A deeper criticism of this model points out that even if this is a good theory in principle, it doesn’t always bear out in practice. The marketplace model holds that the true ideas will win out, but that may presuppose a rational and well-educated population that is willing and able to reason well, and has the skills to recognize fallacious ideas. This works fairly well in the scientific community, or other highly educated circles. But in reality, the population at large is not very good at deciphering sifting evidence, and discerning true from false. As a result, we continue to see the same bad ideas propagated — not because of their merit, but because we just hear them over and again. By analogy, the free market economy has hardly produced the best goods. Instead, it produces the goods that are the most popular — what is most desired, not what is most desirable. Consider for example, the eating habits of Americans. Americans prefer unhealthy and tasteless food. Is this the best food? If we turn around and insist that is must be the best because best means most popular, then we are engaging in circular reason. Maybe the same thing happens with ideas. In a free marketplace, should we really expect that the true ideas to win out? Or the ones that are familiar or make us feel good about ourselves? Or will it be the ones with the most financial backing? Consider once again, vague and distorting political ads. Or consider how the debate about climate change in played on in American mass media. A related criticism points to an ambiguity in what it means for an idea to “win out.” This could mean that the best and most educated minds will find the truth. Or it could mean that the general population will come to accept what is true. The case for the first claim seems stronger. For his part, Mill held that in the long run, the best ideas will trickle down to the common man over time — like the idea that the Earth is round. Is this true in general? Another criticism of the marketplace model is that it may have the effect of silencing some valuable perspectives — the minority view which Mill is keen to protect. For example, hate speech may have a “chilling effect “on the expression of minority groups who have just cause to feel threatened. Mill encourages us to speak out so that our ideas may be criticized. But encouraging some modes of speech may have a chilling effect on others. Again, the worry is that Mill’s model is better suited for an ideal community than for the real world. However, a defender of the marketplace model could argue that when the speech in question compromises the free exchange of ideas, it looses its special status as protected speech. (This is a point often made about the Citizens United ruling). For his part, Mill unwaveringly upheld the banner that, in the long run, falsehoods would wither, and that the truth will prevail. There is an intrinsic bias towards the truth in the free discussion of ideas — even if it takes centuries for this bias to prevail. 4. Self-Actualization Theory. A fourth view worth considering is that free speech is good for the speaker, and not just for the audience or society as a whole. (After all, it is supposed to be the speaker’s right — not society’s). It allows the speaker to develop her ideas, and actualize her communal self. Aristotle held that rational discussion is the most unique and important feature of human existence. Recall that Aristotle defended democracy not on the grounds that it will provide the best leaders, but on the grounds that it requires citizens to engage in public deliberation, hence actualizing our uniquely human capacities. A dictatorship is will suited for sheep, but not human beings. Likewise, the self-actualization theory defends our right — or obligation — to engage ourselves in public deliberation. (Aristotle believed that thinking in isolation of other people is at best of very limited value). We not only explore what we think, but we discover who we really are, and we become better people in the process. Expression is necessary for human flourishing. In short, a society that stifles creative human thought is, to that extend, a less human society. While there is much to be said for this view, it does seem to be the most restrictive (least liberal) theory of expression. After all, if the basis for protecting speech is that it helps us actualize our potential to be excellent, then there are prima facie grounds for restricting speech that is corrosive to oneself or to others. Consider examples like gangster rap, pornography, or celebrations of damaging drugs. Of course the Aristotelian may want to err on the side of caution. Gangster rap may contain elements of true self-actualization that are difficult for outsiders to see. Further, part of self-actualization is in sorting through good and bad ideas, and this cannot happen in a society where censorship decides for us what is good. But clearly there must be a point where we know well enough that certain modes of expression on damaging to character. This may be especially true of children. This would explain our willingness to at least restrict pornography and some music from reaching children. But the true Aristotelian may have to go further. If we have strong evidence that pornography — or certain kinds of pornography — are corrosive to the soul — for example if they make us less able to actualize our distinctive capacity to be human lovers — then there seems to be grounds for more serious restrictions or censorship. If speech is important because it makes us better, then speech that makes us worse should not be protected. Many will argue that this is too restrictive. Liberals will say that adults have a right to decide the meaning of pornography or other modes of expression. On the other hand, perhaps the Aristotelian is right. After all, the liberal has failed to win the argument that we have a right to smoke PCP, and precisely on Aristotelian grounds — such a right would be destructive to human flourishing and self-actualization. It is interesting that the courts have sided with Aristotelian arguments on many issues, but rarely on the matter of speech: Except in protecting children. Summing Up In addition to being a basic liberty like any other, free speech could be important for other reasons: • The maintenance of a free democracy. • The right of autonomous agents to make up their own minds. • To discover truth and falsehood on the marketplace of ideas. • To actualize our intellectual and creative potential as human beings. 
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