Dale A Herbeck. 21st Century Communication: A Reference Handbook. Editor: William F Eadie. 2009. Sage Publication.
The first 10 amendments to the U.S. Constitution are commonly known as the “Bill of Rights.” While this grand title sounds impressive, it creates an erroneous impression about the text to which it refers. The title suggests that the first 10 amendments to the Constitution establish a uniform set of freedoms and privileges guaranteed to all Americans. It suggests that there is a certain permanent quality about these protections; that these rights have a substance that can be touched. Moreover, it implies that the Founders of the republic, through the process of amendment, were able to perfect and articulate a shared understanding of “freedom” that is durable enough to transcend time, bridging their age with the 21st century.
The problems associated with such images are obvious on close reading. The Bill of Rights does not delineate a set of perfectly understood and inalienable freedoms and privileges. Rather, it is a list of general statements declaring what rights citizens may claim in disputes with the government. The actual protection afforded by these rights is often vague and elusive, and this is particularly true of the freedom of expression. The pertinent guarantees are specified in the First Amendment, which emphatically proclaims,
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 redress of grievances.
In this single sentence, the Founders defined the relationship between the government and the right of the people to criticize their elected officials. While the mandate expressed in the Free Speech Clause is absolute—“Congress shall make no law … abridging the freedom of speech, or of the press”—the meaning of these 14 words is not as obvious as the words may suggest. Although the language is clear and straightforward, it is not as transparent as it seems. The very simplicity of the words is deceptive, so unequivocal that they have become equivocal, largely because it creates a right so absolute that it must necessarily be limited.
A comprehensive history of the Free Speech Clause is beyond the scope of this chapter. Suffice it to say that since the First Amendment was ratified in 1791, Congress has adopted and the Supreme Court has permitted restrictions on the content of speech. In many instances, the restrictions have been justified by asserting that the speech at issue has so little redeeming value that it is outweighed by the social interest in order or morality. This first half of the chapter explores these areas, and having considered the nature of “low-value” speech, the second half of the chapter identifies some general principles developed by the Supreme Court to assess the constitutionality of government restrictions on speech.
A Two-Tier Approach to Freedom of Expression
Walter Chaplinsky was a Jehovah’s Witness who attempted to distribute religious literature on the streets of Rochester, New Hampshire. Because his message was controversial—he promised to preach the “true facts of the Bible,” and he denounced organized religion as a “racket,” Chaplinsky was quickly surrounded by a hostile crowd. Believing that violence was imminent, a traffic officer asked Chaplinsky to accompany him back to the police station for his own protection. Along the way, the twosome met the Rochester City Marshal, whom Chaplinsky denounced as follows: “You are a God damned racketeer … [and] a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists” (Chaplinsky v. New Hampshire, 1942, p. 569).
Chaplinsky was promptly arrested and subsequently convicted by a jury for violating a New Hampshire statute that made it a crime to “address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place.” When Chaplinsky appealed his conviction, he found surprisingly little sympathy from either the New Hampshire Supreme Court or the U.S. Supreme Court. What makes this case interesting is not the result—the Supreme Court unanimously upheld Chaplinsky’s conviction—but rather the sweeping language contained in Justice Frank Murphy’s opinion. While he only needed to argue that Chaplinsky’s intemperate outburst posed a threat to public safety in order to uphold the conviction, Justice Murphy’s opinion in Chaplinsky v. New Hampshire (1942) includes a famous paragraph that seemingly places several broad categories of speech entirely beyond the protection of the First Amendment. In the pivotal passage, Justice Murphy notes,
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 which 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. (pp. 571–572)
These sweeping dicta, more than the decision in the case, offer a unique insight into the nature of freedom of expression in the United States.
Instead of focusing narrowly on fighting words, Justice Murphy laid the foundation for what scholars such as Harry Kalven (1988) have labeled a “two-tier theory” of the First Amendment. Speech in the higher tier, even if it is odious or distasteful, is entitled a full measure of First Amendment protection. At the same time, speech in the lower tier has minimal value, and it can be suppressed by the state with less judicial scrutiny. Lest there be any doubt about which speech lacks ideas and has no redeeming social value, Justice Murphy set out four neat categories: the lewd and obscene, the profane, the libelous, and the insulting or fighting words. To illustrate the nature of such speech, it seems appropriate to briefly consider the categories singled out by Justice Murphy for diminished protection under the First Amendment.
The Lewd and Obscene
The first U.S. Supreme Court decision to consider whether sexually explicit speech was worthy of constitutional protection was Roth v. United States (1957). In a decision that he later came to regret, Justice William Brennan built a theory of obscenity premised on the two-tier theory. Working from Chaplinsky v. New Hampshire’s (1942) assumption that “all ideas having even the slightest redeeming social importance—unorthodox ideas, controversial issues, even ideas hateful to the prevailing climate of opinion—have the full protection of the guarantees,” Justice Brennan concluded that obscenity was outside the First Amendment as it was “utterly without redeeming social importance” (p. 484). As it was without value, Justice Brennan did not consider whether there were harms associated with obscenity that might justify its regulation. In short, obscene speech is so worthless that it does not deserve to be measured by the standards applied to speech containing legitimate content.
In the years since Roth v. United States (1957), the Supreme Court has never revisited this assumption. Instead, the Justices have spent their time searching for a workable definition of obscenity and setting standards for assessing laws regulating sexually explicit speech. The most recent effort to define obscenity is contained in Miller v. California (1973), a decision that limits obscenity “to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value” (p. 24). To enforce this definition, the Supreme Court added some standards for laws regulating obscenity. First, the Miller decision requires the use of “contemporary community standards” to determine whether or not speech is obscene. This means that there is no national standard for obscenity; a work that is protected in one community might be obscene and unprotected in another community. Second, the Millerdecision also adds a requirement that state laws must be clear and specific in describing the type of sexual conduct that is prohibited. Finally, the Miller decision allows “serious literary, artistic, political, or scientific value” to redeem an otherwise obscene work.
In recent years, the sexual exploitation of children has become a special problem, and the courts have been forced to consider the constitutionality of a variety of measures designed to combat child pornography. Since obscenity is unworthy of constitutional protection, a law targeting child obscenity would be permissible so long as it adhered to the Miller v. California (1973) definition of obscenity. Laws targeting child pornography are more complicated, however, as these measures often seek to ban the portrayal of minors in sexual performances, even if the performances are not legally obscene. The constitutionality of one such law was tested in New York v. Ferber (1982), a case involving a store owner convicted of selling films showing children under the age of 16 masturbating. The jury concluded that although the materials in questions were not legally obscene, the defendant was nonetheless guilty of violating New York State’s child pornography law. The Supreme Court unanimously upheld the conviction, thereby establishing nonob-scene child pornography as a new category of prohibited expression and giving legislators “greater leeway in the regulation of pornographic depictions of children” (p. 756).
At first glance, it may seem that the profane should be grouped with the lewd and obscene as such speech often contains sexual references. Under closer inspection, however, most profanity is not erotic and could therefore never be obscene. While it may be offensive to some, the Supreme Court has shown a surprising tolerance toward profanity. This relaxed attitude is evident in the “motherfucker trilogy” of the early 1970s, three cases in which authorities sought to prosecute speakers for uttering this particularly distasteful phrase in public. In each instance, the Supreme Court vacated the conviction and held that speech could not be punished simply because it might be offensive to someone in the audience. The Justices then remanded the cases to the lower courts to determine whether the words might tend to incite an immediate breach of the peace.
The more difficult questions involving profanity today are related to the medium of expression. In Federal Communications Commission v. Pacifica Foundation (1978), for example, the Supreme Court upheld a ban on indecent language broadcast over the public airwaves during a time of day when children would likely be in the audience. While acknowledging that “these words ordinarily lack literary, political, or scientific value,” the plurality opinion authored by Justice John Paul Stevens admitted that “they are not entirely outside the protection of the First Amendment” (p. 746). Citing precedent, Justice Stevens concluded that speech cannot be banned simply because it is offensive. The restriction on broadcast indecency was justified, however (1) because the broadcast media is pervasive and (2) because the broadcast media is uniquely accessible to children.
In New York Times v. Sullivan (1964), the Supreme Court considered the constitutionality of an Alabama law that allowed public officials to sue for defamation if the words are such as to “injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust” (p. 267). Unlike Roth v. United States (1957), however, Justice William Brennan’s opinion in Sullivan denied the Chaplinsky v. New Hampshire (1942) categories their “tal-ismanic immunity” (p. 269). Instead of assuming that libelous utterances “are no essential part of any exposition of ideas,” Justice Brennan started from the premise that the “freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions” (p. 269). Since the speech at issue was protected political criticism, Justice Brennan fashioned an “actual malice” rule that would require public officials to prove that a defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not” (p. 280).
While the Sullivan decision has been applauded—one prominent scholar proclaimed it was an occasion for “dancing in the streets,” it is important to note that the Supreme Court has never held that libelous speech as a class is worthy of constitutional protection. In Gertz v. Welch (1974), for instance, the Court used language eerily reminiscent of Chaplinsky v. New Hampshire (1942) when it suggested that “neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide open’ debate on public issues” because “there is no constitutional value in false statements of fact” (p. 340). So, too, the Court has limited First Amendment protection in cases involving libelous statements about a private matter that is of no public concern.
In the years since Sullivan, the Supreme Court has expanded the actual malice rule to include both public figures as well as public officials, it has broadened the definition of public officials to include those who have substantial responsibility for the conduct of government affairs, and it has defined official conduct to include private matters that touch on a person’s fitness for public office. These protections have created a space for speech on matters of public concern, even speech that includes false statements. Defamatory statements regarding matters of public concern are only subject to liability if it can be shown that they are made with actual malice. It should be noted, however, that false statements of facts about private persons receive limited First Amendment protection.
According to the Chaplinsky v. New Hampshire (1942) opinion, fighting words consist of two classes of speech: words that by their very utterance inflict injury and words that tend to incite an immediate breach of peace. The Supreme Court eliminated the first class—words that by the very utterance inflict injury—in Cohen v. California (1971), a case that came about when Paul Robert Cohen entered the Los Angeles County Courthouse wearing a jacket bearing the words “Fuck the Draft” to protest the Vietnam War. Although no one complained about the language used on the jacket, Cohen was arrested by the police and charged with breach of peace. On appeal, the Supreme Court overturned Cohen’s conviction. Writing for the majority, Justice John Harlan concluded, “It cannot possibly be maintained that this vulgar allusion to the Selective Service System would conjure up psychic stimulation with anyone likely to be confronted with Cohen’s crudely defaced jacket” (p. 20). As Justice Harlan saw the case, Cohen was being punished for the offensive content of his jacket, not because of its erotic nature or for fear that it would trigger a violent reaction. In the words of Justice Harlan,
While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. (p. 25)
Because reasonable people might find different words objectionable, Justice Harlan concluded that it was unconstitutional to punish speech on the theory that its very utterance might inflict injury.
The Cohen v. California (1971) decision narrowed the fighting words exception to include only language that tends to incite an immediate breach of the peace. This would seem to require an abusive personal epithet, addressed to a specific individual and delivered in a face-to-face context, under circumstances likely to result in violence. It is difficult to imagine how written words, language addressed at large audiences or broad classes of people, or speech mediated through the Internet could ever be suppressed under the reformulated Chaplinsky v. New Hampshire (1942) test. The definition of fighting words is so narrow, in fact, that the Supreme Court has not upheld a single conviction for the use of fighting words since Chaplinsky was decided in 1942. Given that fact, scholars such as Kent Greenawalt (1995) have wondered whether any fighting words remain.
Over the years, the Supreme Court has gradually reduced the Chaplinsky list to obscenity, libelous speech made with actual malice, and fighting words that incite a breach of peace. These are not, however, the only categories of speech that have been singled out for reduced First Amendment protection. Perhaps the two most glaring omissions from Justice Murphy’s original list of low-value speech involve commercial speech and expressive conduct.
Although it is ubiquitous, commercial expression has historically received little First Amendment protection. In Valentine v. Chrestensen (1942), the Supreme Court unanimously declared that commercial advertising (in this case, handbills being distributed on the streets of New York City) was not essential public information but rather expression intended to produce a private profit. In a dismissive opinion that was only half a page in length, the Justices noted that while it was clear that public streets could be used “for the exercise of the freedom of communicating information and disseminating opinion,” it was equally clear that no such privilege protected “purely commercial advertising” (p. 54). For more than 30 years, the Valentine v. Chrestensen doctrine prevailed, and the state and federal courts consistently ruled that commercial speech was unworthy of First Amendment protection.
During the 1970s, however, the Supreme Court reversed direction and rehabilitated commercial speech in a series of remarkable opinions authored by Justice Harry Blackmun. One of Justice Blackmun’s more notable declarations occurred in Virginia State Board of Pharmacy v. Virginia Citizens Council (1976), where he argued, “Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price” (p. 765). By this reasoning, advertising is akin to high-value speech because a free-market economy allocates resources based on personal economic decisions. This argument does not, however, extend to false or misleading advertising, as it contains no such information. Nor does it mean that advertising receives the same measure of protection as noncommercial expression. Two years after Virginia State Board of Pharmacy v. Virginia Citizens Council (1976) was decided, the Supreme Court stressed the point by emphasizing that commercial speech remains in a less protected category “commensurate with its subordinate position in the scale of First Amendment values” (Ohralik v. Ohio State Bar Association, 1978, p. 456). This is a notable distinction because it suggests the court will allow regulations on advertising that might not be permissible in the realm of noncommercial expression.
The Supreme Court has also held that speech plus—expression that is accompanied by conduct such as picketing, burning a draft card, or wearing an armband—receives less First Amendment protection than does “pure speech” (such as giving a talk to an audience in an auditorium). The general principle is that the more “plus” (conduct) in the act of expression, the less that expression is protected by the Constitution. An example occurred in United States v. O’Brien (1968), when the Supreme Court upheld David Paul O’Brien’s conviction for burning his draft card to protest the Vietnam War. Writing for the majority, Chief Justice Earl Warren declared, “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea” (p. 376). When “speech” and “nonspeech” are combined in the same expressive conduct, Chief Justice Warren concluded, “a sufficiently important government interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms” (p. 376).
Finally, it should be noted that some commentators have proposed adding new categories of speech to the original Chaplinsky v. New Hampshire (1942) list of low-value speech. Alexander Bickel (1975), for example, would add “filthy and violent rhetoric” and other forms of “assaultive speech” on the grounds that such discourse undermines our common moral environment. Catherine MacKinnon would add pornography because she views it as more insidious than obscenity. Not only does pornography have little social value but MacKinnon (1993) believes that it demeans women and validates attitudes that lead to discrimination and violence against the female half of the population. For similar reasons, Mari Mastuda would add racist hate speech to the Chaplinsky list. According to Matsuda (1989), this speech shares three identifying characteristics: (1) the message is of racial inferiority; (2) the message is directed against a historically oppressed group; and (3) the message is persecutorial, hateful, and degrading. Much as pornography denigrates women, Matsuda argues that racist hate speech has real consequences in the daily lives of the members of minority groups singled out for such verbal abuse.
Standards for Judicial Review
Having come this far, it might safely be concluded that Justice Murphy erred when he suggested that there are “certain well-defined and narrowly limited classes of speech” that are unworthy of First Amendment protection. These categories are neither well-defined nor are they limited. Ever since Chaplinsky v. New Hampshire (1942) was decided, the Supreme Court has struggled to find a workable definition of obscenity. At one point, an exasperated Justice Potter Stewart lamented the difficulty of “trying to define what may be indefinable.” He then added one of the more memorable lines about obscenity, “I know it when I see it, and the motion picture involved in this case is not that” (Jacobellis v. Ohio, 1964, p. 197).
So too, the Justices have struggled with the categories that comprise the Chaplinsky v. New Hampshire (1942) list. While obscenity remains outside the First Amendment, the Court has rehabilitated profane and libelous speech and narrowed the definition of fighting words. Although not on the original list, the Court has also held that commercial speech and speech plus are entitled to less protection than high-value speech. Even with these additions, it has been suggested by some that assaultive speech, pornography, and racist hate speech should receive less First Amendment protection.
There is, however, a more fundamental problem with the Chaplinsky v. New Hampshire (1942) dicta. With all due respect to Justice Murphy, the problem with low-value speech is not that “such utterances are no essential part of any exposition of ideas” or that they “are of such slight social value as a step to the truth.” In fact, the problem is exactly the opposite. The Supreme Court singled out the lewd and obscene, the profane, the libelous, and the insulting or fighting precisely because this speech clearly communicates messages that the Justices found objectionable. By discounting the value of such speech, Justice Murphy marginalized its value and avoided the need to assess its content.
This observation notwithstanding, the two-tier theory helps explain why some classes of speech receive more constitutional protection than other classes of speech. As the name implies, the two-tier theory creates a hierarchy of speech. Speech in the upper tier—high-value speech—receives a full measure of constitutional protection. Speech in the lower tier—low-value speech—necessarily receives less protection. It would be a mistake, however, to conclude that low-value speech receives no constitutional protection. In R.A.V. v. St. Paul (1992), Justice Antonin Scalia cautioned that it is sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” or that the “protection of the First Amendment does not extend” to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity “as not being speech at all” (p. 383).
In other words, while low-value speech is entitled to less First Amendment protection, it is not “invisible to the Constitution.”
To enforce the hierarchy of speech, the Supreme Court employs different standards of judicial review when assessing laws regulating speech. While the Supreme Court has never adopted an absolute interpretation of the Free Speech Clause, the Court has been reluctant to uphold restrictions on high-value speech. If speech falls in the upper tier, the Court employs a “strict scrutiny” test that requires that a restriction on speech be justified by a compelling state interest and achieved through the least restrictive means. Under this level of review, it is difficult to justify restrictions on high-value speech. In contrast, the Court employs “intermediate” or “minimal” scrutiny when reviewing restrictions on low-value speech. By design, these standards are more deferential to the government. For example, a regulation can be justified because it satisfies a “legitimate” instead of a “compelling” state interest. Rather than requiring the “least restrictive” means, the Court will accept “reasonable” means. Since these standards are easier to satisfy, the Court upholds most regulations on low-value speech.
Laws Regulating Freedom of Expression
The fact that speech has value does not, however, mean that it can never be regulated by the government. While the language of the First Amendment is absolute, the Supreme Court has upheld a variety of measures restricting the freedom of expression. It is, unfortunately, impossible to summarize First Amendment jurisprudence neatly as the Supreme Court has offered a variety of rules, tests, and standards for assessing efforts to regulate speech. The result is a complicated body of law that has befuddled some of the greatest legal minds. By way of illustration, the Court has created a four-pronged test for regulating commercial speech; there are three standards for assessing state laws regulating obscenity, three types of public forums, and multiple standards for judicial review. There are also unique rules for regulating speech in special settings such as schools, the military, and prisons.
While lengthy legal treaties have been devoted to the circumstances under which government can regulate expression, several broad principles can be identified. These principles are not transcendent, but they help explain how the Supreme Court approaches laws that restrict expression. Moreover, because they are not unique to specific areas, these principles can be broadly applied. The five principles hold that (1) prior restraints are generally unacceptable; (2) the advocacy of abstract ideas is protected; (3) restrictions on speech must be content neutral; (4) reasonable restrictions governing the time, place, and manner of communication are permissible; and (5) the freedom of speech must sometimes be balanced against competing constitutional rights or government interests.
Prior Restraints Are Generally Unacceptable
Prior restraint occurs when the government stops a message before it is communicated. This contrasts with another method of communication control referred to as post facto punishment, which means that the source of the message is punished after the communication has occurred. This may seem like a trivial distinction, but it has significant practical consequences. If a theater is prohibited from screening a movie, prior restraint has occurred. If the theater is allowed to screen the film, after which it is prosecuted for “disseminating obscenity,” post facto punishment has occurred. The difference, of course, is that prior restraint prevents the audience from viewing the film, while post facto punishment occurs after the audience has seen the objectionable content.
While prior restraint has a long history in English law, the U.S. Supreme Court did not consider the constitutionality of prior restraints until Near v. Minnesota (1931). This case involved a challenge to a Minnesota statute that allowed local officials to obtain a court order that blocked publication of “obscene, lewd and lascivious” or “malicious, scandalous and defamatory” content. In response to partisan attacks, local officials invoked the law and obtained an order blocking publication of future issues of The Saturday Press, a newspaper published by Jay M. Near. When Near challenged the order, the Supreme Court declared that the Minnesota statute violated the First Amendment, in a narrow 5–4 decision. According to the majority opinion authored by Chief Justice Charles Evan Hughes, “the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally, although not exclusively, immunity from previous restraints or censorship” (p. 716).
While the decision was rightly heralded by Fred Friendly (1981) and others as a landmark victory for a free press, the holding is tempered by some important qualifications. First, Chief Justice Hughes was careful to note that the liberty of the press did not confer immunity against post facto punishments. So, while government officials might not be able to prevent publication of a libelous newspaper, aggrieved parties could sue the publisher for defamation after the paper was printed. Second, Chief Justice Hughes warned that in a limited number of circumstances, prior restraint would be permissible. To illustrate this possibility, Chief Justice Hughes noted that “no one would doubt but that a government might prevent … the publication of the sailing dates of transports or the number and location of troops” or act to protect the “security of community life … against incitements to acts of violence and the overthrow by force of orderly government” (p. 716).
Advocacy of Abstract Ideas is Protected
While the First Amendment limits the use of prior restraints to extraordinary circumstances, the Supreme Court allows the post facto punishment of expression in certain instances. So, for example, the Court will allow the state to punish speech that advocates criminal activity. The modern standard for incitement was established in Brandenburg v. Ohio (1969), a case involving a speech given by a leader of the Ku Klux Klan of Ohio. The speech—which warned of “revengeance” against the President, the Congress, and the Supreme Court—was recorded by a local television station. After hearing excerpts from the speech on the news, local officials arrested Brandenburg, who was tried and convicted for violating Ohio’s Criminal Syndicalism Act, a law that made it a crime to advocate the use of violence or terrorism in order to accomplish political or industrial reform. The Supreme Court overturned Brandenburg’s conviction on the grounds that
the constitutional guarantees of free speech and free press do not permit a State 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 action and is likely to incite or produce such action. (p. 447)
In Brandenburg v. Ohio (1969), the Supreme Court set out a clear standard, stating that, to be punishable, antigov-ernment speech must have the intent of producing “imminent lawless action” and is “likely to incite or produce such action.” To sustain a conviction, the government must prove three things: (1) that the speaker advocates breaking the law, (2) that the speech calls for immediate lawless action, and (3) that the immediate lawless action is likely to occur. As Franklyn Haiman (1981) has observed, this is a challenging burden because it requires proof not only that the speech advocates illegal action but also that the action is likely to occur. Because of Brandenburg, the abstract advocacy of ideas, even dangerous ideas, is now protected by the First Amendment.
Restrictions on Speech Must Be Content Neutral
A third principle involves the distinction between content-based and content-neutral restrictions on expression. A law that is content-based singles out expression based on the content of the speech. So, for example, a law that banned wearing swastikas in Jewish neighborhoods or prohibited cross burning as an expression of racial animosity would be content-based because it targeted speech based on its message. In contrast, a law that banned all noisy activities outside a school or near a hospital would be content neutral because it applies to all speech, regardless of the message.
In recent years, the Supreme Court has shown little sympathy for content-based regulations on expression. One of the Court’s more emphatic declarations on the subject can be found in Police Department of the City of Chicago v. Moseley (1972). In an oft-quoted passage, Justice Thurgood Marshall declared, “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (p. 95). In this instance, the Court held that a city ordinance that prohibited picketing near schools was unconstitutional. The flaw in the law, according to the majority, was due to the fact that the ordinance was not a flat ban on all picketing. Rather, that law contained an exception for labor picketing, and that meant that it singled out nonlabor picketing based on its content.
Under closer examination, it may seem odd that the Supreme Court is less sympathetic to content-based than to content-neutral restrictions. Both restrictions limit speech, but a content-neutral restriction will often be more restrictive than a content-based restriction as it reaches more speech. For example, a ban on all forms of solicitation at a municipal airport would be content neutral, yet it would restrict more speech than a narrow ban on religious solicitation at the same airport. The explanation for this seeming anomaly goes to the heart of the First Amendment. Content-based restrictions are problematic because, as Cass Sunstein (1993) has noted, they are often based on illegitimate reasons. This contrasts with content-neutral restrictions, which are usually justified by appeals to broader societal interests. So, for example, the ban on all forms of solicitation in airports might be justified based on security grounds. A ban on religious solicitation would nominally improve security, but such a ban would be problematic because the government seems more interested in singling out religious solicitors than in protecting travelers.
Finally, while the neutrality principle may seem intuitive, it is important to note that it is not absolute, as the Supreme Court has in fact upheld some content-based regulation of speech. An oft-cited example is Burson v. Freeman (1992), a case involving a Tennessee law that banned political speech within 100 feet of polling places on Election Day. At face value, this law seems problematic on two counts: first, it restricted high-value political speech, and second, it restricted speech on public streets and sidewalks, forums traditionally open for discussion and debate. Despite these concerns, the Supreme Court upheld the law, reasoning that it was a commonsense measure intended to prevent voter intimidation and election fraud.
Reasonable Restrictions Are Permitted on the Time, Place, and Manner of Communication
Taken together, the first three principles suggest that the government can exercise little control over expression. Prior restraints are generally unconstitutional, the advocacy of abstract ideas is protected, and restrictions on speech must be content neutral. This does not mean, however, that government has no power to regulate speech, as can be demonstrated by government restrictions on the time, the place, and the manner of communication. A restriction on time, for example, might prohibit parades on city streets during the evening rush hour when traffic is heavy. A restriction on place might ban demonstrations inside prisons or on military bases. Finally, a restriction on the manner of communication might limit how speakers communicate. Many municipalities prohibit the use of loud speakers in residential neighborhoods.
One of the great champions of political speech, Alexander Meiklejohn (1948), invoked the image of a New England town meeting to justify freedom of speech. The town meeting provides a place for neighbors to gather, to debate matters of common concern, and to vote on issues affecting the community. For this sort of deliberate democracy to work, freedom of expression must be guaranteed. At the same time, Meiklejohn also recognized that a town meeting would be a disaster without some limits on speech. That is why a moderator is selected, an agenda is negotiated, and all speakers must adhere to rules governing the order and length of speeches. Time, place, and manner restrictions can be analogized to the rules that govern a town meeting. If anyone were allowed to speak anytime, anywhere, and using any medium of communication, the result would be chaos. Much like the rules governing a town meeting, it is often argued that restrictions on the time, place, and manner of communication actually increase the freedom of speech.
As might be expected, government bodies have used their authority to impose a broad range of time, place, and manner restrictions, and many of these restrictions have been challenged in court. While a thorough review of these cases is beyond the scope of this chapter, several simple generalizations are possible. A time, place, or manner restriction that is content based would likely fail as the court would apply a strict scrutiny test. On the other hand, content-neutral restrictions on the time, place, or manner of communication would be subjected to intermediate scrutiny. To satisfy this standard, the government must show that the law serves an important interest, that the law is narrowly tailored, and that other means of communication are available. So, for example, the courts have consistently upheld content-neutral ordinances that require permits for holding parades on public streets or rallies in public parks, so long as the municipality has a clear policy that is consistently and equitably enforced.
A decision in a recent Supreme Court case involving time, place, and manner restrictions is instructive. Watchtower Bible and Tract Society of New York v. Village of Stratton (2002) came about when Stratton, a village in Ohio, adopted an ordinance regulating canvassing and soliciting in residential neighborhoods. Under the ordinance, would-be canvassers had to request a free permit available from the mayor’s office. The Watchtower Bible and Tract Society—more commonly known as the Jehovah’s Witnesses—challenged the law on First Amendment grounds. While village officials claimed that the ordinance was intended to prevent fraud and protect privacy, the Supreme Court found that the measure was overboard and unconstitutional. Not only did the ordinance restrict Jehovah’s Witnesses and door-to-door salesmen, but it also barred political candidates, Girl Scouts selling cookies, Halloween trick-or-treaters, and even neighbors from going from door to door without a permit.
Speech Rights Must Sometimes Be Balanced
The previous discussion treats freedom of expression in isolation. In many situations, however, the courts are required to balance competing constitutional rights. Anthony Lewis (2007), for example, has written about the tension between the constitutional guarantees of a free press and the right to a fair trial. A case in point is Nebraska Press Association v. Stuart (1976), in which a local judge issued a gag order against the press before a murder trial as a way of preventing pretrial publicity that might prejudice the jury pool. In this instance, the First Amendment rights of the free press came into direct conflict with the Sixth Amendment right of the accused to a trial by an impartial jury. The Supreme Court refused to “establish a priority applicable in all circumstances” and balanced the two competing rights, both guaranteed by the Constitution. While acknowledging that the Sixth Amendment is important, the Court came down on the side of the free press and overturned the gag order.
It would be misleading, however, to suggest that the only circumstances in which speech might be limited is when another constitutional right is involved. Concerned legislators sometimes adopt measures that limit speech to address societal problems. In recent years, for example, the Supreme Court has been asked to consider a wide variety of measures restricting commercial speech. To handle such cases, the Supreme Court created an ad hoc balancing test that was first articulated in Central Hudson Gas and Electric v. Public Services Commission (1980). Under the Central Hudson test, courts must determine (a) whether the expression to be limited promotes legal products, services, or activities; (b) whether the government has a substantial interest in prohibiting or limiting the commercial speech; (c) whether the restriction directly advances the government interest; and (d) whether the restriction is only as broad as necessary to advance the government’s interest. Application of the Central Hudson test, in most instances, requires the court to balance the benefit of the proposed restriction (the second factor discounted by the third factor) against the burden imposed on the freedom of speech (the fourth factor). The results of ad hoc balancing using the Central Hudson test are case specific and cannot be generalized.
At first glance, balancing offers an easy way to resolve conflicts between free speech and other rights or interests. By assigning appropriate weights to both the right of a free press and the right of a fair trial, the Supreme Court was able to strike the appropriate balance in the Richmond Newspaper case. While the result in this instance makes intuitive sense, the balancing approach is not without its critics. The very flexibility that makes balancing so intellectually appealing means that it may threaten freedom of speech. For that reason, absolutists such as Justice Hugo Black (1960) rejected the idea of balancing First Amendment rights against asserted state interests.
Rodney Smolla (1992) cautions against simple answers to all questions related to the freedom of expression. It is difficult to find organizing principles and impossible to neatly reduce the freedom of expression to a single book chapter. While the language of the Free Speech Clause is unambiguous, academics and jurists have struggled to find bright lines for distinguishing between protected and unprotected expression. Even when it is possible to assign speech into discrete categories, transcendent legal principles remain elusive. Depending on the type of speech at issue and the circumstances, different rules apply. The Supreme Court has admitted as much, noting that “each method of communicating ideas is a ‘law unto itself’ and that law must reflect the ‘differing natures, values, abuses and dangers’ of each method” (Metromedia v. City of San Diego, 1981, p. 501). For every principle, the Supreme Court seems to have acknowledged one or more exceptions.
This does not diminish the importance of freedom of expression. On the contrary, Thomas Emerson (1963) suggests that the difficulty in developing a coherent theory and transcendent principles reflects the importance of the task. No single formula or rationale is sufficient. Rather, each controversy must be considered on its own merits. The Free Speech Clause expresses an ideal, but this ideal is challenged by speech that is hateful, prurient, and threatening. Thomas Jefferson recognized as much when he warned that the free and open discussion required for true democracy is not for the fainthearted, who might prefer the calm of despotism to sailing on the “boisterous sea of liberty.”