Chapter 64: The Boundaries of Freedom of Speech and the Press

“Pussy Power”

“Our Voices Together Can’t Be Silenced”

“Fuck the Electoral College”

—Protest signs during a march in Manhattan on January 21, 2017 (1)

The First Amendment to the U. S. Constitution says that “Congress shall make no law…abridging the freedom of speech, or of the press…” Because of incorporation, this protection also applies to state and local governments. Does this mean, then, that you are free to say or print anything you want and remain protected by the First Amendment? The answer is “No.” However, the Supreme Court often applies a standard known as strict scrutiny to cases where government attempts to restrict overtly political or ideological speech. Strict scrutiny means that limiting speech is presumptively unconstitutional unless the government can “show that the law is narrowly tailored to achieve a compelling government interest.” (2) The case law regarding freedom of speech and press is considerably larger than we can cover here, so we will focus on some of the boundaries and cutting-edge law.

Endangering Others

For many years, one of the most widely recognized guidelines in constitutional law was the clear and present danger doctrine, which came out of Schenck v. United States (1919).  Basically, this doctrine held that speech is not protected by the First Amendment if it clearly endangers the lives, health, and property of others, or the national security of the United States. In the Schenck case, socialists were prosecuted for distributing flyers during World War I that encouraged men to avoid service in the army. (3) The Court upheld their prosecution because it considered their actions to be a threat to American national security. In his opinion, Justice Oliver Wendell Holmes argued hypothetically that someone could not shout “Fire!” falsely in a crowded theater, and then hide behind the First Amendment. That kind of utterance imperils the lives of others as well as the theater owner’s property, because the crowd will stampede to get out. The clear and present danger standard essentially still applies, although the Court does not explicitly rely on it. Note that it refers to speech that is essentially lawful, but that in certain contexts crosses the line. If the theater really is on fire, by all means shout “Fire!” Or, better yet, pull the fire alarm.

What about speech that is unlawful or that advocates lawless behavior? In these cases, the Court relies on the imminent lawless action standard. Consider when someone threatens to assassinate the president or incites people to riot. Those forms of speech are not protected by the First Amendment. In Brandenburg v. Ohio (1969), however, the Court established the imminent lawless action standard in its majority opinion. The case dealt with Ohio prosecuting a Ku Klux Klan leader for publicly advocating violence. The majority ruled against Ohio and said that the First Amendment does not allow a state statute “to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce such action.” Essentially the Court said that advocacy of violence is not punishable in general, but inciting violence is punishable.

Fighting Words and Hate speech

The Court defined the idea of fighting words in Chaplinsky v. New Hampshire (1942) as words that “by their very utterance inflict injury or tend to incite an immediate breach of peace.” Civil libertarians worried about fighting words as a Constitutional principle, largely because it was so vague—there is no list of words and phrases that fall under it. For instance, in the Chaplinsky case, one man started a fight after he was called “a damned Fascist” and “a goddamned racketeer!”—phrases which seem quaint today. As a result, the Court backed away from fighting words as legitimate grounds for restricting speech.

Many people argue that the First Amendment shouldn’t protect hate speech. The American Library Association says that hate speech doesn’t have a formal legal definition, but that it refers to “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons.” (4) Hate speech is disgusting because no one wants to hear people say things that are racist, sexist, anti-Semitic, and otherwise bigoted, but such utterances in a public forum are protected by the First Amendment if they are intended to make a political point. For example, most college campuses have student codes of conduct that discourage hate speech, but most of these restrictions cannot be enforced unless the words in question are targeted at specific people and used to harass or threaten them. A college campus is a public forum—much like a public street, a public square in front of city hall, or even a county cemetery—in which really distasteful things can be injected into the marketplace of political ideas. Hate speech cases are gut wrenching. For example, in Snyder v Phelps (2011), the Court ruled in favor of Westboro Baptist Church, whose members picketed funerals of U.S. servicemen and women, carrying signs that said, “You’re Going to Hell,” “Fag Troops,” and “Semper fi Fags.”

Libel

Libel—written defamation of another person, especially of public figures—is not protected by the First Amendment either, but the Court has set high standards for victims to win libel cases. In The New York Times v. Sullivan (1964), the Court announced guidelines that the public figure needs to establish in court if they are to win a libel case. In that case, the New York Times was sued in an Alabama court by a police commissioner named Sullivan, who claimed that an advertisement taken out by the Committee to Defend Martin Luther King had libeled him by implication. The Supreme Court ruled in favor of the New York Times and said in what is known as the Sullivan Test that the victim must show: 1) that the information printed about them was false, 2) that the publisher either knew it was false or the statements “were made with a reckless disregard for the truth,” 3) the information was written due to malice, and 4) publication of the information damaged the victim. The Court set the standard high in order to avoid public officials being able to escape public criticism by threatening lawsuits against newspapers and magazines. Later, in Hustler Magazine v. Jerry Falwell (1988), the Court held that the allegedly libelous statement had to be a statement of fact, and not a joke. Hustler Magazine had run a cartoon ad spoof indicating that Jerry Falwell’s first sexual experience was with his mother in an outhouse. Rather than pay Falwell damages for the false, malicious cartoon, Hustler publisher Larry Flynt took the case to the Supreme Court and won. This decision protected magazines, websites, and comedy shows that poke fun at public figures.

Obscenity

Obscenity is not protected by the First Amendment, but the Court has set the bar fairly high for defining obscenity. In the not too distant past, officials could arbitrarily ban various published materials that they personally deemed inappropriate. In the post-World War II period, the courts stepped in to provide more rigorous definitions—although they are still open to considerable debate. In Miller v. California (1973) the Court articulated a set of criteria by which lower courts could determine whether something was officially obscene. Popularly known as the Miller Test, these standards have been incorporated into federal and state statutes. A work—e.g., a novel, magazine, video, play, or statue—may be declared obscene if it passes all three of the following:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex.
2. The work depicts or describes sexual conduct in a patently offensive way as specifically defined in an applicable law.
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

If a work is determined to be obscene, it can be banned. However, many juries have difficulty coming to consensus about obscenity, given the difficulty of passing the Miller Test.

The Internet changed the relationship between producer and consumer in the porn world just as it has in many other commercial areas. In 1996, Congress passed the Communications Decency Act, and President Clinton signed it into law. The law made it a federal crime to knowingly transmit to a minor—or post on a web site where a minor might visit—any obscene, indecent, or patently offensive picture or text. Many groups immediately sued, and the American Civil Liberties Union carried the case. In Reno v. ACLU (1997), the Court unanimously struck down the Communications Decency Act because the law would require that the Internet only carry information suitable for children. Quoting one of its earlier decisions, the Court said, “the level of discourse reaching a mailbox cannot be limited to that which would be suitable for a sandbox.”

To replace the Communications Decency Act, Congress passed the Child Online Protection Act of 1998, which threatened prison and fines for anyone caught placing material that is “harmful to minors” on a Web site available to children under the age of seventeen. The law became the focus of a legal battle for more than a decade until it died a quiet death in 2009 when the Supreme Court declined to review yet another appeal. During the legal battle, most courts were uncomfortable with the broad language of the law. In addition to the vagueness of the phrase “harmful to minors” is the problem that the law applied local community standards to the Internet. Most federal judges and Supreme Court justices were concerned that the law allowed any community—even the most rural and conservative—to define the content of the Internet for everyone in the country. In distinction to this legal morass, the Supreme Court firmly established in 1982 that bans on child pornography are constitutional, so long as the material in question depicted an actual—as opposed to a virtual—child. (5)

Symbolic Speech

Another controversial area of free speech case law surrounds symbolic speech, which we define as nonverbal or nonwritten behavior or symbols that convey a political viewpoint. Since the 1930s, the Court has recognized the right of Americans to engage in symbolic speech. In Stromberg v. California (1931) the Court struck down a California law that banned displays of red flags that were symbols of socialist and Communist organizations. Later, during the Vietnam War, the Court confronted the issue of symbolic speech again when students in Iowa protested the war by wearing black armbands to school. The students were peaceful and did not disrupt classes, but the school board had banned the wearing of armbands in an effort to head-off the students’ protest. Several students–including Mary Beth Tinker–sued when they were suspended for wearing the armbands, and the Court ruled in Tinker v. Des Moines School District (1969) that such peaceful symbolic speech was protected even for minors. Another aspect of symbolic speech concerns flag burning. At the 1984 Republican National Convention in Dallas, Texas, Gregory Johnson was arrested for burning a U.S. flag while making a speech condemning the Reagan administration. He filed suit, claiming his freedom of speech was violated. In a narrow 5-4 decision, the Supreme Court agreed with Johnson in Texas v. Johnson (1989) and ruled that flag burning is protected by the First Amendment as a form of symbolic speech. Congress repeatedly tried to overturn this decision by passing a Constitutional amendment but came just short of having sufficient votes to do so.

Two Considerations with Respect to News Outlets

This is a good opportunity to make ourselves aware of two important considerations regarding the First Amendment rights of news organizations. The Court has interpreted freedom of the press to mean that government should not be able to engage in what is known as prior restraint, which is when the government prevents publication of something that it finds to be objectionable or illegal. The most famous case involving this principle was New York Times v. United States (1971). During the Vietnam War, Daniel Ellsberg stole a copy of a secret history of America’s involvement in that conflict. As an employee of the Rand Corporation, Ellsberg had participated in producing this secret report for the Secretary of Defense. Ellsberg gave it to Neil Sheehan, a reporter for the New York Times, which began to print the report in installments, collectively called The Pentagon Papers. It was explosive, because it revealed the extent of the morass in Vietnam, important decisions along the way, and the considerable degree to which the American people were deceived by the government. Even though most of the deception had occurred under Democratic administrations, Republican President Richard Nixon wanted The Pentagon Papers suppressed. The government got a federal court to issue an order to the New York Times to desist from further publication, arguing that publication violated the Espionage Act’s prohibition against willfully communicating information it “knew or had reason to believe. . . could be used to the injury of the United States. . . to persons not entitled to receive such information.” In a 6-3 decision, the Court ruled that the government had not met its “heavy burden of showing justification” for prior restraint of The Pentagon Papers. (6)

Another important aspect of constitutional interpretation that affects news outlets has to do with the confidentiality of journalists’ sources. Journalists often obtain information from sources who wish to be anonymous, but governments are often interested in knowing the names of those sources in case they have violated any laws in revealing the information or in the course of their duties. Sadly, government officials’ desire to know the names of journalistic sources is sometimes because they want to discredit them or endanger their lives—witness the furor over revealing the whistleblower’s name during President Trump’s first impeachment. Many states have shield laws that protect journalists from having to reveal their sources, but the federal government does not. In 2005, New York Times reporter Judith Miller was jailed by a federal court for eighty-five days for refusing to reveal her sources in a story about the Bush Administration, which revealed the name of CIA operative Valerie Plame. (7)

Corporate Speech

We’ve already talked about the growing power of corporate political speech, so we don’t need to spend too much time on it here. The Supreme Court’s logic runs like this: People are protected by the First Amendment to express their political opinions. Corporations are people under the law. Therefore, corporations have the same level of First Amendment protection of their right to speak about political issues. In addition, the Court has ruled in cases like Buckley v. Valeo (1976) and Citizens United v. Federal Election Commission (2010) that spending money is a form of protected free speech. The Court’s majority refuses to make a free speech distinction between different types of corporations—e.g., those that are for-profit like oil companies and pharmaceutical companies that lobby governments, and companies that are in the business of reporting on political events. Nor does the majority appreciate or care about the potential for legalized corruption and gross political inequity when it allows deep-pocketed corporations to fund political advocacy and campaigns on an “equal” basis with people like schoolteachers, store clerks, and rideshare drivers.

The Supreme Court has empowered corporations in another respect by taking an increasingly pro-corporate stance on government regulating commercial speech. Commercial speech refers to when corporations speak to potential consumers about products and services. This sort of advertising is not political speech. As David Schultz wrote for the First Amendment Encyclopedia, for much of American history corporate commercial speech “had been subject to significant regulation to protect consumers and prevent fraud,” and courts had generally upheld such regulations. (8) In Valentine v. Chrestensen (1942), the Court ruled that unlike with political speech, which is presumptively constitutional and difficult for government to regulate, “the Constitution imposes no such restraint on government as respects purely commercial advertising.”

Often, the Court has acted to ensure that consumers are able to get information via commercial advertisement. For example, in Central Hudson Gas and Electric Corporation v. Public Services Commission (1980), the Court established what is known as the Central Hudson Test: Government may regulate commercial speech under the following conditions:

1. The government may regulate commercial speech that is fraudulent or misleading.
2. The government’s interest in regulating a particular instance of commercial speech must be substantial.
3. The regulation must directly advance the government’s asserted interest in regulating the commercial speech.
4. The regulation must be narrowly tailored to advance the government’s interest in regulating the commercial speech.

In the time since the Central Hudson Gas case, Supreme Court has placed greater limits on government’s ability to regulate commercial speech, and this development is an object lesson on corporate power in modern American politics. The Court has worked to empower corporations with the kind of freedom of expression traditionally reserved for natural persons, and corporations are taking full advantage of the leeway granted to them by the conservative majority. Justice Clarence Thomas firmly asserted in his concurring opinion in 44 Liquormart, Inc. v. Rhode Island (1996) “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial speech.’” Many scholars applaud this view. Writing in the Northwestern University Law Review, William French argues that commercial speech “is purely persuasive—most notably, advertisements meant to persuade others to purchase. Such an expression falls in line with other forms of speech that receive unquestioned protection, like political campaigning during an election.” (9) Others are quite concerned about the direction being set by the Supreme Court on commercial speech. Law professor Tamara Piety, author of Brandishing the First Amendment: Commercial Expression in America, makes this argument about unregulated commercial speech:

“Once everything becomes ‘expression’ then nothing is regulable. It’s not like we haven’t tried . . . laissez faire before as a country. We had that in the 19th century; it didn’t work out so well. That seems to have been the consensus from those who were living during that period and the decades that followed.” (10)

If a strict standard is applied to commercial speech like it is with political speech, it might become difficult for government to regulate anything corporations say to the public unless it is blatantly fraudulent. For example, can the government require that dairy products containing bovine growth hormone be so labeled? Doing so would be in the interest of consumers, but courts have sided with the dairy associations that such government-mandated labeling violates their free speech rights. (11)

References

1. James Miller, Can Democracy Work? A Short History of a Radical Idea, From Ancient Athens to Our World. New York: Farrar, Straus and Giroux, 2018. Page 214.
2. Victoria L. Killion, The First Amendment: Categories of Speech. Washington, D.C.: Congressional Research Service. January 16, 2019. Page 1.
3. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.New York: W.W. Norton, 2004. Pages 192-194.
4. No Author, Hate Speech and Hate Crime. American Library Association. December, 2017.
5. New York v. Ferber(1982). No Author, “Supreme Court Strikes Down Ban on ‘Virtual Child Porn,’” CNN. April 18, 2002.
6. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.New York: W.W. Norton, 2004. Pages 500-516. Note that the government also tried unsuccessfully to prevent The Washington Post from printing this material as well.
7. David Folkenflik, “TimesReporter Miller Testifies in Plame Case,” NPR’s All Things Considered. September 30, 2005.
8. David Schultz, “Commercial Speech,” The First Amendment Encyclopedia. No date.
9. William French, “This Isn’t Lochner, It’s the First Amendment. Reorienting the Right to Contract and Commercial Speech,” Northwestern University Law Review. March 1, 2019. Page 502.
10. Elliot Zaret, “Commercial Speech and the Evolution of the First Amendment,” Washington Lawyer. September 2015.
11. David A. Martin, “Crying Over Spilt Milk: A Closer Look at Required Disclosures and the Organic Milk Industry. International Dairy Foods Association v. Boggs,” Journal of Environmental Sustainability and Law. Fall 2011.