Free Speech

Free speech and the first amendment have recently been in the news following some controversial supreme court decisions. Despite the fact that the decisions are considered to be conservative (basically because it was decided by the 5 conservative justices on the court: Roberts, Alito, Thomas, Scalia, and the swing vote Kennedy) I actually agree with the decisions. Without going into details, I'll just say that today's conservative justices are actually more intellectually coherent on the issue of free speech. The following post, however, has little to do with the court's most recent opinions. Instead, I want to look at the history of law regarding free-speech and suggest the direction that future rulings on the subject should go.

A good beginning would be the actual text of the 1st amendment: "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." As you can see, a lot of the 1st amendment deals with other issues besides free speech, namely freedom of religion (which will be covered in another post), freedom of the press, freedom of assembly, and freedom of petition. Of course some of those other issues deal directly with freedom of speech (freedom of the press, in particular). If one is to isolate the words related to speech, the text becomes 'Congress shall make no law abridging the freedom of speech.' Notice that these laws limit themselves entirely to acts of Congress. In other words, there are no restrictions on the states or the executive. Legal practice soon came to broaden the bill of rights by applying it all laws restricting Congress to the executive branch where it was constitutionally appropriate to do so.This was the limit of the constitution in terms of free speech until the Civil War. After the Civil War, 3 amendments were passed that broadened some protections against citizens. Specifically, Section 1 of the 14th amendment states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was initially unclear exactly what privileges and immunities were meant to be included as protections. Eventually, through legal theory developed by Hugo Black (who ironically was a former KKK member) and instituted via the Warren Court, the 14th amendment became interpreted to cover the bill of rights as 'protections and immunities' from states granted to citizens.' In other words, the 1st amendment, for example, became broadened to include actions not just by Congress, but by the states as well. To conclude, supreme court ruling precedence and new amendments have pushed the 1st amendment to include rights that cannot be abridged by any government (federal, state, or local).

However, the court has also placed limits on free-speech. Believing that absolute free-speech could cause insurrection and/or criminal activity, the supreme court has searched for a formula that would protect the right, but also limit the most egregious activities. It is from this desire that the court upheld Wilson's Espionage and Sedition Acts (to some degree) in Schenck v. U.S. by invoking the idea developed by Justice Holmes and Brandeis that free-speech should only be limited when it presented a "clear and present danger." The example that became adopted in the popular understanding of the phrase, of 'shouting fire in a crowded movie theater,' is a highly misleading analogy. Instead, the "danger" refers to the danger of people engaging in criminal activity or endangering the republic. Under this ruling free speech can be curtailed if and only if the government can demonstrate that the speech would encourage criminal activity or hinder the Congress from carrying out its basic duties. As you can see, the movie theater analogy has almost no application to the latter guideline. Rather than shouting fire in a movie theater, the "clear and present danger" test applies to telling a soldier that the war he is fighting in is an unjust one because this may cause him to desert (both a criminal act and a hindrance to Congress's ability to carry out a basic duty, that is, waging war).

Schneck was decided in 1919, but the Supreme Court was still unsure of what the ruling meant. The Schneck case had been applied to a wartime scenario, thus it was unclear what the limits of free-speech were in peacetime. So, in Dennis v. US, the Supreme Court broadened limits to free speech. In this case, the court upheld the Smith Act, which outlawed subversive (communist) activities that threatened to overthrow the government. Justice Vinson argued that Congress has the right to prevent speech that may advocate for the overthrow of the government. As he argued, using vitriolic language, "''[o]verthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. And in combating that threat, the Government need not wait to act until the putsch is about to be executed and the plans are set for action." Instead of merely identifying a "clear and present danger" the government had to demonstrate that such an insurrection was at least somewhat realistic or possible. In other words, a drunkard in Kansas could not be convicted under the Smith Act for saying he wanted to be King of America, but a communist party organizer saying that capitalism needs to be overthrown could be.

Thus, in the age of McCarthy, protections against infringements of free speech were at their lowest. In 1969, however, the Warren Court overruled the Dennis decision with Brandenburg v. Ohio, which is still the law of the land. In the case involving a KKK rally, the court completely rid itself of "clear and present danger" and instead installed a new test that linked abstract speech to action by requiring that any infringement on speech that uses the advocacy of violence or criminal action for its basis must demonstrate that "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (stress added)." The key was now "imminent" danger rather than the unclear "clear and present danger" of a half century ago. The court did step back and add that such a strict defense could be reexamined in a condition of wartime (which was somewhat bizarre given that the nation was in the middle of the Vietnam war). Brandenburg serves as the test for free speech today.

However, I believe that the ruling is flawed. Firstly, as the history I have ran through demonstrates, freedom of speech protections have been more dependent on the composition of the supreme court rather than on an abstract principle. This is alarming because this is not at all how the Bill of Rights were intended, nor is it a good way of administering law (if one doesn't know what is illegal, how can one avoid breaking the law). Instead, we need an absolute right to free speech. Secondly, the ruling quite directly opens itself to overrule during wartime. This is highly alarming since it is in a state of wartime that free speech is most often infringed. Before I begin tearing down Brandenburg, I should acknowledge the achievement of the Warren Court. Frankly, I think is perhaps the second greatest thing to happen to this country (my top four would be the Declaration of Independence, the Warren Court, Lincoln, and Franklin Roosevelt). The court dominated by Warren, Black, Frankfurter, Douglas, Fortas, and Brennan was bigger than any president and more drastic than any legislation. The Brandenburg case was a great step in the right direction and it successfully cast off the ridiculous rulings in Dennis and Schneck. With that said, the court missed a grand opportunity with Brandenburg. While better than its predecessors, the decision was seriously flawed. Part of the problem was the details of the case. Yet, the decision has remained the standard and now as the court turns more conservative there is little chance that it will be altered in the direction it should be.

The main fault with Brandenburg is that it failed to lay down a firm protection of political speech. Political speech in any circumstances, unless it particularly advocates violence, should be permissible in all circumstances. Additionally, acts that are done for political theater, unless there is a reasonable reason for the act to be illegalized, should be allowed (burning draft cards should be legal, although not reporting for duty can be punishable.)There need not be any other restriction. Unfortunately, Brandenburg sets down several limits. For one, it refers to advocacy of "lawless action". Under these criteria, a government need only to illegalize any kind of protest, etc. to limit the freedom of speech of someone trying to organize a rally or a petition, for example. By including "lawless action" the decision leaves itself open to easy loopholing.
Secondly, by not making a distinction between political speech and non-political speech, the ruling protects speech that doesn't need protecting.
Thirdly, the entire basis of limiting political speech, that people will be manipulated by demagoguery or pushed towards insurrection, is retained. Such a basis, (as the term DEMAgoguery might suggest) is essentially anti-democratic. It rests on the idea that people are easily manipulated and can't make their own decisions. If this is true, then a democracy cannot function. In fact, the whole reason the founding fathers installed a right of free-speech is because they felt that all political expressions should be able to compete in the marketplace of ideas. If an idea is a good one it should be listened to, if it isn't, then it won't be. It is not up to any person, government, or group to decide which ideas are good. It is up to the people. It is remarkable that such a basic fundamental principle of democracy is easily cast aside. No matter how radical, racist, revolutionary, or conservative a speaker may be, he/she should be entitled to express their political opinions. As I mentioned there should be some limits to this, but only two: it should not be obscene if it is in a public place and it should not advocate violence (because this could directly endanger the lives of other citizens). Beyond those restrictions, there shouldn't be any as long as the speech is political.

Fourthly, the decision does not solve the problem of speech in wartime. Every major war in American history has been accompanied by severe curtailment of political speech. Under Adams there were the Alien and Sedition Acts (and there wasn't even a war), under Lincoln there was his suspension of habeus corpus and his handling of C.L. Vallandigham (for my abridged history paper on this subject, go here), in World War I we had the Espionage Acts, in World War II we had Japanese internment, in the Cold War we had all sorts of restrictions including the Smith Act, Taft-Hartley, and HUAC, and today we have the Patriot Acts. In each case, speech was restricted needlessly and with each case (with the exception of the Patriot Act) historians have almost unanimously condemned those restrictions. They did so with reason. Governments have pushed for restrictions of on freedom of speech in wartime not because they needed to, but because they could. Since I'm talking purely about political speech (as opposed to revealing troop positions, for example), free speech has no military relevance. Realizing this, most governments claim that free speech hurts troop morale. Well, if troops are willing to die for freedom, perhaps they'd be willing to put up with it. The final rationale, that free speech decreases support for the war is nonsensical. Of course it decreases support for the war; that's exactly its intention. In case our leaders have forgotten, the United Stats has been involved in plenty of crazy unjust wars. It is the right and duty of citizens to challenge the moral righteousness of any war. The morality of war is decided by the people in how they express themselves and how they vote (and also by historians), not by the government. The former means freedom of expression, the latter can only be fairly accomplished with freedom of expression. Thus, absolute protection of political speech cannot be a side issue dealt with in the future, as it is in Brandenburg. If it is absolute, it must be that. It must not be open to negotiation during wartime, but most fully practiced during wartime. The insanity of our current war testifies to the need of citizens to speak their mind. After all, our ideas can't be any crazier than our present administration's.