10 minute read

First Amendment

Freedom Of Speech

The Founding Fathers were intimately familiar with government suppression of political speech. Prior to the American Revolution, the Crown imprisoned, pilloried, mutilated, exiled, and even killed men and women who belonged to minority political parties in England, in order to extinguish dissenting views. Many of these dissenters left England in search of more freedom in the New World, where they instead found colonial governments that stifled political dissidence with similar fervor. Maryland, for example, passed a law prohibiting "all speeches, practices and attempts relating to [the British Crown], that shall be thought mutinous and seditious," and provided punishments that included whipping, branding, fines, imprisonment, BANISHMENT, and death. The Free Speech Clause of the Constitution was drafted to protect such political dissenters from a similar fate in the newly founded United States.

In light of this background, the U.S. Supreme Court has afforded dissident political

Burning a U.S. flag to protest government policies is protected as symbolic expression under the First Amendment.

speech unparalleled constitutional protection. However, all speech is not equal under the First Amendment. The high court has identified five areas of expression that the government may legitimately restrict under certain circumstances. These areas are speech that incites illegal activity and subversive speech, fighting words, OBSCENITY and PORNOGRAPHY, commercial speech, and symbolic expression.

The Court has also made clear that states cannot restrict the free speech rights of candidates for judicial office. Unlike federal judges, most state judges must stand for election. in their codes of judicial conduct, states have imposed restrictions on what candidates or sitting judges may say about issues, in hopes of preserving judicial independence and assuring the public that the justice system is impartial. The Court, in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed.2d 694 (2002), rejected this approach as incompatible with the First Amendment. The restrictions were unconstitutional because they regulated speech based on content and burdened an important category of speech.

Speech that Incites Illegal Activity and Subversive Speech Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States, people hand out leaflets imploring neighbors to write to Congress about a particular subject, or to vote in a certain fashion on a REFERENDUM, or to contribute financially to political campaigns and civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures include resisting the draft during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government.

The U.S. Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio, 395U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). Applying the Brandenburg test, the Court ruled that the government could not punish an anti-war protester who yelled, "[W]e'll take the fucking street later," because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time" (Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303[1973]). Nor could the government punish someone who, in opposition to the draft during the VIETNAM WAR, proclaimed, "[I]f they ever make me carry a rifle, the first man I want in my sights is [the president of the United States]L.B.J." (Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 [1969]). Such politically charged rhetoric, the Court held, was mere hyperbole and not a threat intended to be acted on at a definite point in time.

Fighting Words Fighting words are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" or have a "direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed" (Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031[1942]). Whereas subversive advocacy exhorts large numbers of people to engage in lawless conduct, fighting words are directed at provoking a specific individual. Generally, only the most inflammatory and derisive epithets will be characterized as fighting words.

Fighting words also should be distinguished from speech that is merely offensive. Crude or insensitive language may be heard in a variety of contexts—at work, on television, even at home. The U.S. Supreme Court has ruled that speech that merely offends, or hurts the feelings of, another person—without eliciting a more dramatic response—is protected by the First Amendment. The Court has also underscored the responsibility of receivers to ignore offensive speech. Receivers can move away or divert their eyes from an offensive speaker, program, image, or message. In one case, the Court ruled that a young man had the right to wear, in a state courthouse, a jacket with the slogan Fuck the Draft emblazoned across the back, because persons at the courthouse could avert their eyes if offended (Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 [1971]). "One man's vulgarity," the Court said, "is another's lyric," and the words chosen in this case conveyed a stronger message than would a sublimated variation such as Resist the Draft.

Obscenity and Pornography State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and eliding unacceptable portrayals. Over the years, libidinous books such as Lady Chatterly's Lover (1951–1975) and adult movies such as Deep Throat (1972) have rankled communities, which have struggled to determine whether such works should be censored as immoral, or protected as art.

The U.S. Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating. Justice POTTER STEWART admitted that he could not define obscenity, but quipped, "I know it when I see it." Nonetheless, the Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that its predominant theme appeals to a "prurient" interest;(2) it depicts or describes sexual activity in a "patently offensive" manner; and (3) it lacks, when taken as a whole, serious literary, artistic, political, or scientific value (MILLER V. CALIFORNIA, 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

Although the U.S. Supreme Court has failed to adequately define words like prurient, patently offensive, and serious artistic value, literary works that involve sexually related material are strongly protected by the First Amendment, as are magazines like Playboy and Penthouse. More difficult questions are presented in the area of adult cinema. Courts generally distinguish hard-core pornography, which graphically depicts copulation and oral sex, from soft-core pornography, which displays nudity and human sexuality short of these sex acts. In close cases that fall somewhere in the gray areas of pornography, the outcome may turn on the community standards applied by a jury in a particular locale. Thus, pornography that could be prohibited as obscene in a small rural community might receive First Amendment protection in Times Square.

The reach of the INTERNET has led to the distribution of sexually explicit materials through cyberspace. The federal government has sought to regulate this material, but the U.S. Supreme Court has found First Amendment violations. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed.2d 403(2002), the Court struck down provisions of the Child Pornography Prevention Act of 1996 (CPPA) because they censored legally protected speech as well as unprotected speech. It noted that the law sought to ban "virtual child pornography," which is produced through computer-generated imaging or youthful-looking adults. The greatest constitutional problems came from the failure of Congress to comply with each element of the Miller test. Congress had not required that the material be "offensive" or that it "appealed to prurient interests" in order to violate the law. This made the law overbroad under the First Amendment because all material depicting sexual conduct of persons under 18 years of age would be prohibited, despite any underlying merit or value.

Commercial Speech Commercial speech, such as advertising, receives more First Amendment protection than fighting words and obscenity, but less protection than political oratory. Advertising deserves more protection than the first three categories of expression because of the consumer's interest in the free flow of market information (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 [1976]). In a free-market economy, consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served by the free exchange of obscenity.

The U.S. Supreme Court has continued to review commercial speech restrictions with a wary eye. In Lorillard Tobacco Corp. v. Reilly,, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed.2d 532(2001), it struck down state regulations that sought to restrict outdoor and indoor tobacco advertising that targeted minors. The Court found that the provisions were too broad and that they did not advance the state's interests in discouraging tobacco consumption. In another case, Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed.2d 563(2002), the Court struck down advertising restrictions on pharmacies and pharmacists, imposed by FOOD AND DRUG ADMINISTRATION (FDA) regulations. The Court found that the FDA had other means of regulating certain products and that regulating speech should be the last option rather than the first. In U.S. v. United Foods, 533 U.S. 405, 121 S. Ct. 2334, 150L. Ed.2d 438 (2001), the Court barred a government-sponsored agricultural product board from assessing fees from producers to be used in product advertisement. It concluded that the First Amendment not only addresses the banning of speech; it also prevents the government from forcing persons to express views they not agree with.

At the same time, commercial speech deserves less protection than do political orations because society has a greater interest in receiving accurate commercial information and may be less savvy in flushing out false and deceptive rhetoric. The average citizen is more prone, the U.S. Supreme Court has suggested, to discount the words of a politician than to discount the words of a Fortune 500 company. The average citizen may be more vulnerable to misleading advertising as well. Even during an election year, most people view more commercial advertisements than political advertisements, and they rely on those advertisements when purchasing the clothes they wear, the food they eat, and the automobiles they drive. Thus, the U.S. Supreme Court permits government regulation of commercial speech that is intended to prevent misleading and deceptive advertising.

Symbolic Expression Not all forms of expression involve words. The nod of a head, the wave of a hand, and the wink of an eye all communicate something without language. The television image of a defenseless Chinese student facing down a line of tanks during protests in support of democracy near Tiananmen Square in 1989 will be forever seared into the minds of viewers.

Not all symbolic conduct is considered speech for First Amendment purposes. If an individual uses a symbolic expression with the intent to communicate a specific message and under circumstances in which the audience is likely to understand its meaning, the government may not regulate that expression unless the regulation serves a significant societal interest unrelated to the suppression of ideas (Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 [1974]; United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968]). Applying this standard, the U.S. Supreme Court overturned the conviction of a person who had burned the American flag in protest over the policies of President RONALD REAGAN (TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]), and reversed the suspension of a high-school student for wearing a black armband in protest of the Vietnam War (TINKERV. DES MOINES INDEPENDENT SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731[1969]), but upheld federal legislation that prohibited the burning of draft cards (O'Brien). Of the government interests asserted in these three cases, maintaining the integrity of the SELECTIVE SERVICE SYSTEM was the only interest of sufficient weight to overcome the First Amendment right to engage in symbolic expression.

In City of Erie v. Pap's A. M., 529 U.S. 277, 120S. Ct. 1382, 146 L. Ed.2d 265 (2000), the U.S. Supreme Court ruled that a ZONING ordinance that barred nude-dancing establishments did not violate the First Amendment, again using the symbolic-expression standard. In that case, the city of Erie, Pennsylvania, had not sought to ban the expressive conduct itself (nude dancing), thus the zoning law was content-neutral. The city had a right under its POLICE POWERS to protect public health and safety. It also had a legitimate reason for the law: the harmful, secondary effects of nude dancing establishments in a community. Finally, the government interest was unrelated to the suppression of free expression,

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Filiation Proceeding to Freedom from encumbranceFirst Amendment - Freedom Of Speech, Freedom Of The Press, Freedom Of Religion, Further Readings