Free Speech Opinion

Political Science 102 – The Constitution and Rights of Americans (Fall 2009)

Free Speech Opinion

[Students and professors, please read.]

In the eight cases we were given to study involving free speech, these types of speech were restricted:  distributing anti-draft leaflets, promoting revolution, teaching revolution, intimidating cross-burning, student promotion of drug use in school; these types of speech were protected:  cross-burning without intent to intimidate, symbolic war protesting, flag burning.  The cross-burning cases show that speech in that area is becoming more restricted, as far as intimidation is concerned.  Although minors’ free speech rights were protected when symbolically protesting war, they were not protected more recently when promoting drug use (jokingly, to get attention).  The early cases associated with war protest, revolution or disagreeing with government policy, restricted speech, and the most recent cases protected speech.  For racists and minors, free speech appears to be decreasing; for anti-government folks, free speech is on the rise.  Below is a review of the cases upon which that opinion is based.

In Schenck v. United States (1919)(427-28; free speech rights of anti-war protestors), Schenck, a socialist, distributed anti-draft leaflets, violating the Espionage Act of 1917.  The U.S. Supreme Court voted unanimously that the act was constitutional.  Justice Holmes, delivering the opinion for the court, said the act punishes not only ‘actual’ obstruction, but conspiracies to obstruct, and there was a ‘clear and present danger’ of obstruction, since the nation is (was) at war.  This restricted free speech.

In Gitlow v. People of the State of New York (1925)(428-33; freedom of speech and press applies to states, free speech rights of socialists), Benjamin Gitlow, a socialist, published Left Wing Manifesto (message:  proletariat revolution inevitable), violating the New York Criminal Anarchy Act of 1902—the newly formed ACLU helped take his case to the Supreme Court, which voted 7-2 to affirm the act constitutional. Justice Stanford, delivering the opinion of the court, said that Section 161 of the act, Advocacy of Criminal Anarchy, penalizes only utterances which advocate, advise or teach the overthrow of organized government by lawful means—as in “The Communist International calls the proletariat of the world to the final struggle!”—which is direct incitement to a danger that is real ‘because’ it cannot be accurately foreseen, and so the probability of danger is therefore not up for consideration.  He said we don’t need to use the ‘clear and present danger’ test because the Act already determined the danger.  Justice Holmes, joined by Justice Brandeis, dissented that, applying the clear and present danger test, there was none, so the Act is unconstitutional.  They said every idea is an incitement, but the ideas in question here had no chance of starting a present conflagration.  “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”  It took a while for this thinking to set in, but it eventually did.  However, the opinion of the court restricted free speech.

In Dennis v. United States (1951)(433-44; free speech rights of communists), Eugene Dennis and ten others of the American Communist Party were indicted under the Smith Act of 1940 for teaching revolution.  The issue for the supreme court to decide was, “Does section 2 or 3 of the Smith Act violate the 1st and 5th amendments?”  The court decided 6-2 that the act was constitutional.  The plurality was delivered by Chief Justice Vinson, who said that since there are peaceful means for change, revolution is not protected—Congress has the power to protect against it—the question is “are the means Congress used constitutional?”  The act is directed at advocacy, not discussion—and this group advocated revolution whenever the opportunity would present itself.  Vinson sees this as a “clear and present danger” (Holmes’ test from Schenck)—including Learned Hand’s take here:  “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”  Justice Frankfurter concurred that free speech is not absolute:  “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,” referring to Chaplinsky v. State of New Hampshire, 315 U.S. 568 [(1942)].  Even if they weren’t advocating imminent revolution, they were not merely teaching a class.  Congress says such danger justifies the restriction of their speech—we are not legistlators, but judges.  Justice Jackson concurred that we don’t need the “clear and present danger rule” (if we used it, the danger would have to be imminent, and it isn’t/wasn’t) regarding speech—we need only focus on the conspiracy charge, which is not protected by the First Amendment.  Justice Black dissented that they aren’t being charged with an attempt to overthrow the government, nor for saying or printing anything about overthrowing the government.  They merely had planned to organize to that end.  He said section 3 is unconstitutional.  Justice Douglas dissented that we don’t burn Communist books, so why do we restrict their being taught?  Planning to organize does not constitute clear and present danger.  He referred to Brandeis in “Whitney v. People of State of California” (1927) that not even serious injury is enough to restrict speech—must be ‘serious evil’.  However, the opinion of the court restricted free speech.

In Brandenburg v. Ohio (1969)(445-47; free speech rights of KKK members), Clarence Brandenburg, leader of Ku Klux Klan, had a little cross-burning get-together at which he used “revengenance” language and was accompanied by armed folk.  This violated Ohio’s Criminal Syndicalism Act, which the Supreme Court decided unanimously was unconstitutional.  Chief Justice Warren assigned Justice Abe Fortas to deliver the opinion, but he resigned (I don’t know why), so the opinion was unsigned (per curium) and stated that the Ohio Criminal Syndicalism Act is not constitutional because it infringes on “condemnation speech” which the Constitution protects from government control, and it does not present any “clear and present danger”.  Justice Black concurs with Justice Douglas’ concurrence that the “clear and present danger” doctrine should have no place in the interpretation of the First Amendment, because its interpretation becomes too ‘ad hoc’.  Justice Douglas concurs with a caveat mentioned by Justice Black:  all speech should be immune from prosecution.  No one dissented.  The opinion of the court protected free speech.

In Tinker v. Des Moines Independent Community School District (1969)(664-67; high school and junior high school students wearing black armbands to school in protest of the Vietnam war), John and Mary Beth Tinker get in trouble at school for wearing black armbands to protest war, violating school rule.  The Supreme Court decided 7-2 that the school rule violated the constitution.  Justice Fortas delivered the opinion that there is no good reason for the regulation, and that it violates free speech.  Justices Stewart and White concurred, but Justice Black dissented that the armbands are disruptive, whereas Justice Harlan said there is no reason to assume the armband ban was to prevent free speech.  However, the opinion of the court protected free speech.

In Texas v. Johnson (1989)(674-81; burning the American flag in protest), Gregory Johnson burned a flag at a demonstration during the Republican National Convention to protest Reagan policy—violating Texas statute.  The Supreme Court decided 5-4 that the statute was unconstitutional.  Justice Brennan, delivering the opinion of the court, said the government may not prevent expression unless it has compelling state interest, and in this case, protecting the flag, or preserving the peace, do not apply—the flag is not more important than the freedoms it stands for (better to persuade him he is wrong), and peace was not disturbed.  Justice Kennedy concurs that “the flag protects those who hold it in contempt”. Justice Stevens dissents that intent is irrelevant, just like in the “cross” case.  Justice Rehnquist, joined by White and O’Connor dissent that it was not his political views that were prosecuted, but the way he expressed them, in violation of U.S.C. Sec. 700(a), when there were other ways of expressing them.  However, the opinion of the court protected free speech.

In Virginia v. Black (2003)(531-38; burning crosses on private property), crosses were burned on private property by Barry Elton Black of KKK (with owner’s permission), and Elliot and O’Mara (owner was black, they were mad at him), in violation of a 50 year old Virginia law that says cross burning is a crime.  The Supreme Court voted 6-3 that a properly drafted law would survive a First Amendment challenge.  The opinion of the court was delivered by Justice O’Connor, joined by Chief Justice Rehnquist, Justices Stevens and Breyer:  cross burning is a “particularly virulent form of intimidation.”  The law-as-is is unconstitutional when the intent is not to intimidate, so Barry Black’s conviction cannot stand.  The ½ and ½ opinion of Scalia, joined by Thomas, is that the jury could be properly instructed, inference of intimidation rebutted.  The ½ and ½ opinion of Souter, joined by Kennedy and Ginsberg was that the law is flat-out unconstitutional and shouldn’t even ban cross burning with intent to intimidate.  Justice Thomas dissented that intent is irrelevant, because the symbology itself is intimidating.  However, the opinion of the court protected free speech, as long as there is no intent to intimidate (such speech is restricted).

In Morse v. Frederick (2007)(669-74); Joseph Frederick, high school student, waved a banner saying “Bong hits for Jesus” during a relay happening across the street from his school (students were released from school).  Morse, his principal, took it away and suspended him 10 days.  The court voted that Morse’s actions were constitutional.  Chief Justice Roberts, delivering the opinion of the court, said that a banner promoting drug-use, despite Frederick’s claimed intention of just getting attention, is speech that may be restricted in a school setting.  It was not political speech, by Frederick’s own admission.  Tinker and Kuhlmeier are referred to.  Justice Alito concurred only as pertains to drug use, not as pertains to political speech, Justice Thomas concurred that student speech is not historically protected by the First Amendment, anyway (despite Tinker tinkering with in loco parentis—turned back by this decision).  He said we should let local schools decide the rules, not the courts.  Justice Stevens, joined by Justices Souter and Ginsberg, dissented that the principal should not be held liable for taking away the banner, as Frederick did not intend to promote drug use, and so should not have been disciplined—the discipline violates first amendment.  However, the opinion of the court protected the principal’s actions, and restricted the free speech of the student.