This paper examines the scope and limits of First Amendment protections in the United States through key Supreme Court decisions and legal doctrine. It traces the historical context of civil liberties during wartime, analyzes foundational free speech principles including the fighting words doctrine and clear and present danger standard, and explores how courts balance free expression against other government interests. The paper covers critical cases addressing free expression on private property, hate speech regulations, symbolic speech, and the ongoing tension between national security and constitutional freedoms, particularly in the post-9/11 context.
Justice Oliver Wendell Holmes once observed that a "page of history is worth a volume of logic." The American constitutional tradition demonstrates that civil liberties often take a backseat during times of war. As Erwin Chemerinsky, a constitutional law professor, noted in a telephone interview, "History shows us that in times of crisis, the suppression of dissension occurs."
Sanford Levinson, a law professor, writes: "It is difficult to read our constitutional history without believing that the Constitution is often condensed at best to a whisper during times of war." The First Amendment is no exception to this pattern. Attorney Michael Linfield, author of Freedom Under Fire: U.S. Civil Liberties in Times of War, writes: "Rather than being an exception, war-era violations of civil liberties in the United States are the accepted norm for our government."
The most basic element of freedom of expression is the right to freedom of speech. This right allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide extensive justification for any interference with free speech rights, especially when the interference targets the content of speech. A less rigorous test applies to content-neutral legislation. The Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or incite violence. The right to free speech extends to other mediums of expression that communicate a message.
The first attempt to provide a constitutional basis for protecting free expression on private property occurred in the mid-1940s. In Marsh v. Alabama, the Supreme Court held that owners and operators of a company town could not prohibit the distribution of religious literature in the town's business district because such expression was protected by the First and Fourteenth Amendments. The majority reasoned that the town displayed many attributes of a municipality; therefore, the state-action requirement was satisfied for constitutional purposes of sustaining free expression rights.
As stated in Marsh, "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." In striking a balance, the Court determined that the free-speech rights of individuals were paramount over the property rights asserted by the company owner.
The Court subsequently extended the rationale of Marsh to peaceful picketing in a large shopping center. In Union v. Logan Valley Plaza, the Court considered whether non-employee union members could be enjoined from striking against a grocery store in a privately owned shopping center.
Four years later, in Lloyd Corp. v. Tanner, the Court reconsidered the Logan Valley doctrine. The Lloyd case involved war protesters who sought to express their views at a local mall. The Court distinguished Logan Valley on narrow grounds, limiting its holding to a labor dispute involving one of the center's tenants and occurring under conditions where no realistic alternative for expression existed. Neither of these elements was present in Lloyd.
The handbilling by the respondents in the malls of Lloyd Center had no relation to any reason for which the center was built and operated. Rather, the message the respondents sought to convey was aimed at all members of the public and could have been disseminated in any number of public areas. Notably, the Court opined that "there is no open-ended invitation to the public to use the Center for any and all purposes, however mismatched with the interests of both the stores and the shoppers whom they serve."
In a related case involving state action doctrine, the Colorado Supreme Court found adequate entanglement with the government to support a finding of state action on the part of a mall and commercial retail center. The Colorado court noted an observable governmental presence in the mall, including a police substation, military recruiting offices, and county voter-registration drives. While the court granted that the open and public areas of the mall effectively functioned as a public place, it left open the issue of whether a lesser degree of governmental involvement would be sufficient for a comparable holding.
In Chaplinsky v. New Hampshire, a defendant was convicted of violating a New Hampshire statute that prohibited the use of offensive, insulting language toward persons in public places after making several provocative comments to a city official. The Court, in upholding the statute as constitutional, set down those famous words:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been considered 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 expression inflict injury or tend to incite an immediate breach of the peace. It has been established that such utterances are not an 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."
The Court further expanded its protection of offensive speech in Cohen v. California. Cohen was arrested and convicted for disturbing the peace after wearing a jacket bearing the words "F--- the Draft." The Supreme Court overturned the conviction, redefining fighting words as only those "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions." The Court articulated that because Cohen's statement was not an insult directed toward a particular individual, it could not be characterized as fighting words.
It was not until twenty years later that the Court again had the opportunity to fully analyze the fighting-words doctrine. In R.A.V. v. City of St. Paul, the Court considered the constitutionality of a St. Paul, Minnesota ordinance that outlawed fighting words on the basis of "race, color, creed, religion or gender." The defendant was one of several teenagers charged with violating the ordinance after burning a cross on an African American family's lawn. The Supreme Court determined that the ordinance was facially unconstitutional because it prohibited speech based on its content. The Court reasoned that even if the ordinance reached only unprotected fighting words, the city still could not constitutionally legalize only certain types of fighting words on the basis of their content. By prohibiting not all fighting words but only those of a particularly offensive nature, the statute conflicted with the Constitution.
Calls for hate speech regulation are based on the notion that certain speech denigrates its targets, who are seen as victims in need of protection. Curbs on hate speech are also seen as a means of equalizing the power of the racially oppressed and other less advantaged groups by putting these groups on an equal footing with the majority.
Two federal court decisions addressed speech codes directly. In Michigan in 1989 and in Wisconsin in 1991, courts made clear that the First Amendment renders restrictions on speech—in these cases restrictions on expression of racist ideas and views—unconstitutional.
The only Supreme Court ruling to date on this issue reversed a Bias-Motivated Crime Ordinance of St. Paul, Minnesota. The ordinance forbade placing on public or private property words and nonverbal expression which a person knows or has reason to know will arouse anger or bitterness related to "race, color, creed, religion or gender."
Lawyers representing teenagers arrested for placing a homemade cross inside the fenced yard of a Black family alleged the ordinance as being overly broad and content-based. The Court agreed that the ordinance was unconstitutional. It only targeted expression meant to inflame anger based on "race, color, religion or gender." It did not address hostility regarding political affiliation, homosexuality, and many other views. Moreover, the Court stated, its practical operation could be used as the basis of content discrimination, for it banned otherwise acceptable speech solely on the basis of the subjects addressed in the ordinance. The Court noted that content-based policy such as this one marked a departure from the foundations of democratic theory, which regard strong, even harsh, debate as essential to self-government.
The most challenging fact situation faced by the Court in applying the clear and present danger standard occurred in Terminiello v. City of Chicago. In a five-to-four decision, the majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance."
Justice William O. Douglas wrote for the majority: "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless sheltered against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."
In applying the First Amendment across numerous fact patterns, the Court engages in what scholars call "definitional balancing" to determine which forms of expression fall outside constitutional protection. Balancing is used to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises. The application of overbreadth doctrine, vagueness analysis, and the requirement of less restrictive alternatives may reduce occasions when questions of protection must be answered directly on the merits. What is observable is the re-emergence, at least in a developing fashion, of something like the clear and present danger standard in advocacy cases—the context in which it was first developed.
Very little expression is purely speech. If it is oral, it may be noisy enough to be disturbing; if it is written, it may constitute litter; in either case, it may amount to conduct that is prohibitable in specific circumstances. Beyond these simple examples, one can see that conduct or demeanor may have communicative content, intended to express a point of view. Expressive conduct may consist in flying a particular flag as a symbol or in refusing to salute a flag as a symbol. Sit-ins and stand-ins may effectively express a protest about certain matters.
In West Virginia State Board of Education v. Barnette, Justice Jackson wrote: "There is no doubt that, in connection with the pledge, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind."
When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental restriction. In cases involving symbolic speech, particularly a congressional prohibition on draft-card burnings, the Court has stated the generally applicable rule: "[A] Government regulation is sufficiently justified if it is within the constitutional power of Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that government interest."
The Court has suggested that this standard is virtually identical to that applied to time, place, or manner restrictions on expression.
History shows that concerns about the fragility of the First Amendment during times of crisis are well founded. The adage "History repeats itself" appears to be true in the aftermath of September 11. For example, the traditional separation between church and state has been disregarded in some public schools where administrators have posted religious messages and led students in prayer. The First Amendment right of free association has been rigorously compromised, particularly for those connected with Muslim organizations that the government believes support anti-American causes.
Experts have warned that anonymous speech on the Internet, once a staple of the democratic medium, could become limited or disappear. The Internet has already been blamed for contributing to other tragedies, such as the Columbine High School shooting in Littleton, Colorado, and the Oklahoma City bombing. Terrorists do communicate using anonymous online speech, as do millions of innocent Americans.
Experts disagree on what effect the war on terrorism will have on First Amendment freedoms. Some constitutional experts contend that the most egregious affronts to the Constitution have occurred in the Fourth Amendment context. However, many believe that freedom of speech will be abridged. There are legitimate reasons to be concerned about the vitality of the First Amendment as the nation advances in the twenty-first century. Government policymakers sometimes lose sight of the Five Freedoms in their effort to find solutions to problems such as terrorism and the exposure of children to pornography.
At the same time, there is a tendency in public opinion to support or even advocate for such policies. One can take some consolation, however, in the fact that the federal courts—up to and including the Supreme Court—continue to demonstrate great respect for the Five Freedoms. Most unconstitutional legislative attempts against the First Amendment are overturned.
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