We demand (somewhat limited) free speech

Imagine it is 2004 and you read that Michael Moore was arrested for making Fahrenheit 9/11 or his comments about the Bush administration. Or, more topical, that Scott McClellan's recent book led to his arrest for maligning the administration during wartime or some such nonsense.

These suggestions seem improbable nowadays in our society. After all, we have free speech. Always have, always will, right? Possibly, first amendment rights are actually deemed by Americans to be the most important of all our rights (leaving aside those passionate gun advocates spurred on by the present partisan debate that feel the second amendment should be first).

It should be noted at first that there was, and sometimes still is, a debate as to whether it was necessary to have a bill of rights, including the first amendment, at all. Alexander Hamilton, for one, believed it would be counterproductive. These rights against the federal government were already in existence, he argued, as well as others. If some of them are set out in constitutional amendments, then the others might be deemed not to exist. He had a point, and it has been argued, successfully and unsuccessfully.

Literally, the first amendment reads as follows:

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 a redress of grievances.

This post deals with the second clause of that amendment, "abridging the freedom of speech," sometimes called freedom of expression.

The law on this subject is vast, and no attempt here will be made to do anything but just lightly touch upon some aspects of it it is hoped you might find interesting.

Just to simplify the arguments here, we will take "speech" to mean "expression," as it is commonly accepted (although I know one thick headed Montanan reader who might give me grief about it). Thus, accept for the sake of argument that pictures, writings, symbolic actions, etc., have at least some first amendment protection.

I am actually using the first amendment as an example to make a point that is actually a political heresy, possibly unique to myself. We are trained to say only worshipful things about the constitution and to give credit to the founders for their unworldly foresight. I would argue that it never worked in a myriad of ways. However, this is not an anti-patriotic or anti-constitutional scree. It merely reflects that the constitution was made by failable men who compromised in order to get the job done, and who had no crystal balls which would enable them to write for the ages.

Faced with text that just didn't work in many situations, judges, throughout the two hundred plus years of the country's history, have interpreted the constitution as they saw fit, sometimes reflecting the changing culture and sometimes leading it. While many argue that we need to stick to the meaning of the founders, or, for others, the intent of the founders, I do not believe that even the most assiduous of proponents of this view stick to it when the result would not please them. After all, Thomas Jefferson coined the phrase "strict construction" but derided such lack of flexibility as soon as he obtained the high office.

Even the godfather of modern originalism, Antonin Scalia of The Supreme Court of the United States (and coincidentally the college roomate of my boss in my first law job), acknowledged at his Senate hearing that he understood, for example, that although lashing was not deemed to be cruel or unusual punishment to the framers, he would be happy to draw a line there and forbid it now. It is a fair question (which I would have asked, were I Senator [brief pause for laughter]) to ask if he was willing to draw a line where he thought necessary, how could he complain on principal when others draw different lines? Originalism, although a great theory, falls in upon itself the first time it is comprised.

Frankly, it is a good thing that the "freedom" of speech (or expression) is not taken literally. It would not satisfy any of us if we could say what we wanted but not write it or paint what we wished. The converse is true as well. Imagine a world where no expression could be infringed by the government. Perhaps that sounds great at first. Although in that world, no president could speak in public for the hecklers, no teacher could silence a student in order to teach, no police officer could stop verbal threats, no pornography could be banned in any environment including prime time television, no court, indeed, could carry on its mission if those who chose to speak determined to do so in court. And so on.

Because society could not function were total freedom of speech allowed and culturally seemed not to be able to bear certain other speech (obscenity - but has the internet made that law obsolete outside of child porn and public displays?) various devices were created by judges so that society could, in fact, infringe upon speech all the time. Yet, none of it is found in the constitution.

Despite the appearance of the amendment in 1791, when it definitely only applied to the federal government, it was not until the 1920s when it even began to have much effect and even to be applied to the states through a highly questionable series of judicial rulings that makes sense only if you disregard what the constitution says and just want the world to be a certain way.

Most famous historically speaking, is, of course, the alien-sedition act of the Adams administration which permitted some actual imprisonment of the press (freedom of the press is linked with speech in the first amendment) under limited circumstances.

The actual results of that act were not extreme, and it was was nothing compared to the federal government's actions during the first world war (I'll skip the Civil War -- but Lincoln's intolerance for free speech and press in wartime is well documented), when a many time socialist presidential candidate, Eugene Debs, was imprisoned for just making a speech during which he tried to be very careful about what he said, when an anti-war Senator, Robert LaFollette, was almost expelled from the Senate for his constitutionally protected words (he eventually shut up and survived) and, even crazier, when a movie maker, Robert Goldstein was actually imprisoned for 3 years (sentenced to 10) for making a film about the American Revolution, The Spirit of '76, in which, naturally, the Brits (our allies in WWI), were the bad guys. LaFollette had an eventual resurgence in his career, but Debs' and Goldstein's lives were destroyed. These are only examples. There were many others.

Although free speech has grown (thanks to judicial activity) the following are situations where the courts have allowed limited governmental infringement of speech despite the first amendment's supposed protection:

-pornography/obscenity
-speech at or near places of government activity
-hate speech/fighting words
-speech in school, both secondary and college
-speech that might disrupt the lives of private citizens (e.g., an injunction
prohibiting speech too close to an abortion clinic).
-private lawsuits against commercial speech (e.g., a suit against a magazine that
published an advertisement for a mercenary, leading to a murder)
-slander and libel
-fraud and deceptive advertising
-time, place and manner restrictions (when, where and how you may exercise your speech rights)
- political speech (e.g., the McCain-Feingold laws)

I would suggest that except for the first and last of that list, virtually everyone agrees (once they think about it) with these limitations. The reason for most of them is simple. As Justice Robert Jackson once wrote (I'm paraphrasing here, a lazy blogger's perogative) -- It's not a choice between liberty and order. It's about liberty with order. He is also sometimes credited with the thought that the constitution is not a suicide pact, although, like the first example, he merely restated the thought in his legal opinion. In other words, in real life, the first amendment (among other constitutional provisions) didn't work.


Similarly, Justice Learned Hand, a favorite of this blog, wrote (again paraphrasing)that without order, liberty becomes a license which would actually lead to the denial of liberty for those without the strength to enforce their will against stronger persons.

The fact that most of us like many of these limitations, although possibly to different degrees, is not surprising. It is also true, and becoming more true, that many people don't mind invasions of their privacy if it means a greater feeling of security. I have a somewhat different opinion about that issue though, which I will not go into here.

Still, the degree of these limitations are bitterly fought over and there will never be agreement on any of them. It keeps the courts busy. One problem is that very often in constitutional law, too much liberty for one person may bleed over into depriving the liberty of someone else. For example, if you tell someone they can't have organized prayer in school because it is unconstitutional, they might feel they are being deprived of their right to free exercise of their religion. If you tell someone they can have organized prayer in school, others feel that government is violating the prohibition on establishing religion.

You'll note, I hope, that the above limitations aren't, for the most part, about the content of the expression (again, excepting the first example and arguably the last one) and shouldn't be. Without freedom of content, at least in an alternate venue, the limitations would be intolerable, atleast to modern Americans, who have become used to it.

School free speech scenarios make good examples of the difficulty of deciding these cases. The Supreme Court ruled on one last year in Morse v. Frederick (aka, the Bong Hits for Jesus case). Contrary to some reviews of it, no new law was made. The court applied what is known as the Tinker test, after another case, balancing the child's right to speech against the school's need for order so that it can fullfil its educational mission.

The court held that the school could prevent the student involved from holding up his "pro-drug" sign during a school event. Although Justice Clarence Thomas would have held that school kids have absolutely no free speech rights to begin with, that is certainly the minority position, and one I don't believe withstands close scrutiny.

I'm guessing, of course, but I think most Americans would agree with the court's decion in Morse v. Frederick case if they didn't know which judges voted which way (thereby ruling out partisan influences). But other similar cases are not so simple. Take a west coast federal case in which a student's tee shirt included, among other anti-gay material, writing saying "BE ASHAMED OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" worn after a pro-gay program in the school district was held.

The federal appeals' court upheld the school's punishment of the "offender," at least in part based on the notion that the message struck at gay students' "dignity and self-worth". Another judge actually wrote that it was ok to protect one student psyche from another student's speech based upon a misinterpretation of the bible. Hopefully, he will be the last judge to base an opinion on his biblical interpretation as opposed to an individual's own view.

The Supreme Court reversed the appeal's court's decision without issuing an explanatory opinion. Maybe they interpreted the Bible the same way the t-shirt wearer did. The important thing to ask yourself is if you were the judge, would your acceptance or rejection of gay marriage or "gay rights" would make a difference to you in coming to a decision.

Even more recently, just earlier this month, in fact, a federal appeals court in the middle of this country refused to allow a school to punish a student who wore a Be Happy, Not Gay t-shirt in response to pro-gay t-shirts that other students wore the day before on a school sponsored pro-gay day. Have the courts gotten the message. You can't stop students from wearing anti-gay t-shirts, particularly if there is pro-gay propagandizing in play. The two anti-gay t-shirt cases have been much discussed in legal circles in publications and online.

There are all kinds of permutations of this. Say a t-shirt reads George Bush Sucks, or, George Bush Rocks, depending on your prediliction, and the school has barred political material on shirts. Recently, an east coast federal court refused to permit a school to punish a student whose shirt mocked the president for being a "chickenhawk". Political speech often gets more protection than any other kind, but what if it were a more popular president and we were engaged in a war eliciting violent riots?

How about the rebel flag example? Can a student wear one on his shirt even if it upsets other students who believe it is meant to be a racist statement? How about if there is a Halloween party that day? How about if it is the first day the first black student starts in that school? How about if the flag has a cross in the corner? Or a picture of Robert E. Lee, who is practically a national hero at this point? How about if there are many types of rebel flags on the shirt in a collage (there actually were many different confederate flags)? How about if the words "Honor, Heritage and Equality" appear on the shirt underneath the flag? What if the wearer goes to school in a town where Robert E. Lee and Stonewall Jackson both used to live and are still celebrated (Lexington, Virginia)?

We could go on in that fashion for quite a while, of course, but will give it a rest there. The point is, go ahead and keep telling yourself that the constitution works just fine without judicial tinkering. You'll be in good company, as almost everyone you know will almost certainly agree with you.

All I can do is disagree with you and hope that judges for the most part interpret cases in a way that makes me comfortable, because no constitution really can work without constant help and fiddling around with its meaning adjusted to the ever changing culture. There is always the danger that they will limit speech beyond our desire, of course, and then we might have to rely more on those self centered, cowardly representatives that we actually democratically elected to make decisions.

Even if we think in the abstract that judges shouldn't be making up law and even when we don't like the decisions, for the most part, be glad they do. Because whatever administration is in power, it is not likely to give a lot of thought to your liberty. And on the whole, we have much greater speech rights now thanks to judicial intervention than we did two hundred or a hundred years ago.

Dedication to democracy is crucial as is dedication to liberty; Both are impossible to perfect and the pursuit of each sometimes conflicts with the other, almost requiring some error by courts in making a decision. When there is friction between them, and the answer is not clear, put one finger, and one finger only on the scale for liberty.

I invite your voracious disagreement. It's a difficult subject and you might actually convince me I'm wrong.