3.3 First Amendment: Freedom of Speech

Provisions of the U.S. Constitution’s Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. 

Explain the extent to which the Supreme Court’s interpretation of the First and Second Amendments reflects a commitment to individual liberty. 

The Supreme Court has held that symbolic speech is protected by the First Amendment, demonstrated by Tinker v. Des Moines Independent Community School District (1969), in which the court ruled that public school students could wear black armbands in school to protest the Vietnam War. 

Efforts to balance social order and individual freedom are reflected in interpretations of the First Amendment that limit speech, including: 

• Time, place, and manner regulations

•  Defamatory, offensive, and obscene statements and gestures 

• That which creates a “clear and present danger” based on the ruling in Schenck v. United States (1919) 

The First Amendment says, in part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” A few jurists have taken the view that this means absolutely no law, but most members of the Supreme Court who have addressed the issue have maintained that the protections of the First Amendment must be balanced against the important responsibilities of federal, state, and local governments. 

The founders had differing views on the First Amendment's meaning. Some believed that the rule against Congress limiting “the freedom of speech, or of the press” was based on existing English common law. This interpretation suggested that the government couldn't stop publications beforehand, known as prior restraint, but could hold publishers accountable after the fact. Notable British legal scholar William Blackstone stated that every individual has the right to express their views publicly, but if their publication is inappropriate or harmful, they must accept the consequences.

Other founders, such as Thomas Jefferson, interpreted the First Amendment as preventing the federal government from imposing any restrictions on speech and press, although not so for the states. However, in 1925, the Supreme Court decided that First Amendment protections also applied to the states, meaning all public authorities in the U.S., including local governments, must honor freedom of speech and the press.

So, what types of speech are protected or unprotected under the First Amendment? The Supreme Court has established that certain types of speech are not covered by this amendment. For instance, Justice Oliver Wendell Holmes argued in Schenck v. United States (1919) that one cannot falsely yell “Fire!” in a crowded theater, as doing so could cause panic. Protecting public health and safety is a vital role of government.

In Chaplinsky v. New Hampshire (1942), the Court upheld the conviction of a man who insulted a public official during a disturbance. The Court noted that free speech rights are not unlimited and recognized certain categories of speech that can be restricted without constitutional issues. This includes lewd, obscene, profane, libelous, and insulting speech, particularly ''fighting words” that provoke immediate violence or disorder. The Court stated that “fighting words” do not play a significant role in sharing ideas, and their potential social value is outweighed by the need for public order and morality. However, the expression of political ideas and other forms of discourse remains strongly protected by the First Amendment.

The First Amendment was designed to encourage public discussion about important issues. This raises the question: can the government ever limit political speech? The Supreme Court examined this in three significant cases during World War I, where it affirmed that the federal government could restrict political speech in wartime situations. In one case, the unanimous Court stated that during war, many expressions that are acceptable in peacetime could hinder national efforts, and such speech would not be protected by constitutional rights. The Court determined that the main concern was whether the speech posed a clear and present danger of causing significant harm that Congress has the authority to prevent. This is known as the clear and present danger test.

What about limiting political speech during peacetime? Can this be justified? The Court explored this issue in the 1925 case of Gitlow v. New York, which was the first instance where the Court applied the First Amendment to the states. In this case, a 7–2 majority upheld the conviction of a Socialist for violating New York’s Criminal Anarchy Law by producing a pamphlet that called for “revolutionary mass action” to support the Communist Revolution. The majority ruled that a state can punish expressions that openly promote the violent overthrow of the government. However, in dissent, Justice Holmes argued that the actions did not create an immediate danger of government overthrow. He acknowledged the manifesto as an incitement but insisted that all ideas serve as incitements in some way.

A few years later, in 1931, the Court invalidated an effort by a county attorney in Minnesota to prevent a magazine from publishing articles that were deemed "malicious, scandalous and defamatory" regarding political corruption. The majority found that such prior restraint undermines the freedom of the press. They concluded that prior restraint should only be allowed in exceptional cases, such as those involving military secrets during wartime, obscene content, or direct calls to violence.

In 1951, the Supreme Court revisited the issue first raised in Gitlow concerning the extent of government power to suppress calls for a Communist revolution in the U.S. In response to fears of Communist infiltration, Congress enacted the Alien Registration Act in 1940, known as the Smith Act after Representative Howard W. Smith. This law made it illegal to knowingly advocate for the violent overthrow of any government in the United States.

In 1948, the Department of Justice indicted 11 leaders of the Communist Party under the Smith Act. After a lengthy trial, they were convicted, but they appealed, arguing their conviction infringed on their First Amendment right to free speech.

In the case Dennis v. United States, the Court upheld the Smith Act’s constitutionality with a 6–2 vote. The majority opinion reaffirmed the "clear and present danger" test but clarified that the government is not required to wait until a violent act is imminent before taking action. The defendants were found to have organized the Communist Party to promote the violent overthrow of the government and were therefore correctly convicted.

This was a period marked by heightened fears of Communism. Between 1948 and 1950, significant events occurred: the Soviet Union blockaded Berlin, China became a Communist state, the Soviets tested an atomic bomb, Klaus Fuchs admitted to spying for them, and Alger Hiss, a former State Department official, was convicted of perjury for denying espionage charges. Furthermore, Communist North Korea invaded South Korea, an ally of the United States. From 1950 to 1954, Senator Joseph McCarthy gained notoriety by claiming that numerous Communists infiltrated the federal government. He was censured by the Senate in 1954 for his unfounded accusations, lost his clout, and passed away in 1957 from health issues related to alcohol. His legacy endures in the term McCarthyism, which describes the unfair attacks on others based on alleged disloyalty.

Six years after the Dennis decision, the Supreme Court made it more difficult to prosecute Communist leaders. In Yates v. United States (1957), the Court overturned the convictions of 14 Communist Party leaders, making a clear distinction between advocating for violent overthrow as an idea and advocating for actual violent action. The Court decided that the Smith Act only prohibited calls for action, not the theoretical idea itself, and ruled that the trial judge had given inappropriate instructions to the jury. This ruling effectively put an end to prosecutions under the Smith Act, which had led to 141 indictments and 29 prison sentences.

Finally, in Brandenburg v. Ohio (1969), the Supreme Court further narrowed the basis on which speech advocating violence could be restricted. A Ku Klux Klan leader had been convicted for promoting violence, but the Court unanimously overturned this conviction, stating that a state can only restrict speech that incites imminent lawless action and is likely to produce such action. Consequently, these decisions, particularly Brandenburg, established that most political speech, as long as it does not incite immediate illegal action, is protected by the First Amendment.

The government cannot selectively allow or deny messages based on whether they are considered offensive or disagreeable, which is known as "content neutrality." Justice Samuel Alito, in his dissent, argued that the commitment to free and open debate should not permit harmful verbal attacks, emphasizing that family members have a right to peace without harassment and that respecting this right does not hinder public discourse.

"Symbolic speech" refers to non-verbal forms of expressing political views, like burning a draft card or the American flag. Advocates for a broad interpretation of the First Amendment argue that it protects freedom of expression in both verbal and non-verbal forms. The Supreme Court recognized the protection of symbolic speech in the twentieth century, although there are limitations.

In 1931, the Court struck down a California law that made it a crime to display a red flag as a symbol of opposition to the government, concluding that banning such peaceful opposition was excessive. In 1969, during Tinker v. Des Moines School District, the Court ruled that students had the right to wear black armbands to protest the Vietnam War without losing their freedom of speech at school. However, the Court indicated that schools could impose restrictions if necessary to prevent significant disruptions.

The Court later clarified that students' constitutional rights are not the same as those of adults in other contexts. For instance, in 2007, the Court upheld the punishment of students in Alaska for displaying a large banner deemed to promote drug use, which violated school policy, even though such an act might be protected in different settings.

In 1984, during a protest at the Republican National Convention in Dallas, a member of the Revolutionary Communist Youth Brigade burned an American flag and was convicted under Texas law. In Texas v. Johnson (1989), the Supreme Court reversed this conviction, stating that burning the flag as a political statement is protected by the First Amendment. The majority opinion held that the government cannot restrict expression simply because it is deemed offensive, refuting concerns that such actions could undermine the flag's symbolism.

In June 1990, the Supreme Court, in a 5-4 decision similar to that in Texas v. Johnson, invalidated a federal law. Around the same time, attempts to change the Constitution to ban flag desecration failed, as the Senate did not achieve the necessary two-thirds majority. In 2003, the Court examined if cross-burnings by the Ku Klux Klan qualified as symbolic speech protected by the First Amendment. In Virginia v. Black, the Court struck down a state law that effectively made all cross-burnings illegal. The Court acknowledged that although cross burnings often aim to instill fear, they can also represent an ideology or group unity. States may properly criminalize cross burnings meant to intimidate, but cannot ban those that symbolically convey an ideology or group identity. Despite these rulings, the Court has maintained some limits on expressive actions. In United States v. O’Brien (1968), the Court upheld the conviction of a man who burned his draft card in protest at a Boston courthouse. A federal appeals court had previously overturned this conviction, claiming the law against altering draft cards violated free speech. The Supreme Court disagreed, explaining that the federal government had a valid interest in managing the draft effectively. Such an interest could warrant certain restrictions on First Amendment rights. The Court established a four-part test to assess whether government regulation of expressive conduct aligns with the First Amendment: it must be within the government’s constitutional authority, advance a significant governmental interest, be unrelated to suppressing free expression, and impose no more limitation on First Amendment rights than necessary to promote that interest. O’Brien continues to guide decisions on whether laws can limit expressive conduct that interferes with important government objectives.