PSCI 4220 Civil Liberties/Rights

2. PSCI 4220Civil Liberties/Rights III: Freedom of Speech

3. 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.

4. 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.

5. 2 cardinal principles in free speech jurisprudence • 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.

6. 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…)

7. 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.”

8. 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.”

9. “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**

10. **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?

11. 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

12. 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?

13. **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.

14. 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.

16. 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.

17. “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

18. 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.

19. 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. . .

20. 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.

21. 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.

22. 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?

23. 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)

24. 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)

25. 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?

26. **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”

27. 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)

28. **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

29. **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

30. 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

31. 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.

32. 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.

33. **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.

34. 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.

35. 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”

36. 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.

37. 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.

38. 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.

39. **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.

40. 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?

41. 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

42. 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 self-incrimination 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

43. 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