What is exactly is Free Speech under the Constitution? There are a whole lot of opinions about a whole lot of things by a whole lot of people out there. Some of the opinions are stupid. And, admittedly, some of the people articulating the opinions are stupid. Still, as a nation, we treasure and hold dear our right to express our thoughts and ideas. Those that are inspirational, those that are aspirational, and even those that are foolish. It’s one of the principles that define us as proud Americans.
But are their limits? Are there boundaries? The short answer is “Damn Right.”
Yes, people who are caught saying and doing the most outrageous things are quick to cloak themselves in “My Right of Free Speech,” Okay, there is a right to Free Speech. But assuming for the moment, those in authority can eschew the role of wimps and appeasers, can they do anything to restrain outrageous conduct even though it involves some form of speech?
Some distinctions need to be made.
The values protected by the 1st Amendment foster civilized debate and a variety or viewpoints. But what if someone dismisses civilized debate and attempts to force their views on everyone else? It may be helpful to understand that between speech and conduct there is a line. It Is not always a bright line, but the line exists. Distinctions exist. Differences exist.
There is no such thing as protest vandalism. There is only vandalism. There is no First Amendment right to scream and shout down speakers or other citizens. It is thuggery and bullying. There is a difference between a dance expressing an idea without spoken words and smashing a stature with a hammer or chaining oneself to a pipeline or lying down in the middle of a busy highway other citizens are using to commute to work, the hospital or to pick up their children from school or child care. There is a difference between expressing an idea to a public figure at a community forum and shouting, cursing and screaming over the heads of other citizens to the point where no one can hear, no can speak, nothing can be fairly debated. There is a difference between writing a letter to the newspaper criticizing someone and firebombing that person’s car. There is a difference between “speaking truth to power” and maliciously and blatantly lying about public figures. There is a difference between handing out pamphlets in front of a supermarket and driving a car with a loudspeaker at full volume through a residential neighborhood at two a.m. in the morning. There is a difference between speaking one’s mind to a public figure or judge and having an unruly crowd with megaphones shouting and threatening outside that person’s home in the middle of the night frightening their spouse and children and disturbing the lives of their neighbors. Advocating change is one thing, advocating the violent overthrow of the government is another. Advocating against a person holding office is one thing, advocating violence against that person is another. Teaching college students about history and art and music and law and science and medicine is one thing, advocating that students interrupt classrooms, wear masks like criminals, deface and destroy college buildings and discriminate against classes of students like Jews, Asians and Whites is another.
Let’s start with the basics.
The First Amendment to the Constitution provides: “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.”
There are a couple of noteworthy aspects to the language used.
The first is that the amendment as written assumes Freedom of Speech exists independent of the Constitution. Freedom of Speech is not “granted” by the Constitution. It is protected by the Constitution. Our Framers assumed the right to Free Speech pre-existed the Constitution. It was the view of our forefathers that our rights were given mankind by their creator, not a government. The First Amendment was adopted to protect the right of Free Speech from being “abridged.”
The second is that the First Amendment only prohibits Congress from abridging the right to Free Speech. On its face the amendment does not prevent another governmental entity like States, city and county governments from restricting Free Speech. That was corrected by Supreme Court decisions creating the “Incorporation Doctrine.” The Fourteenth Amendment passed in 1868, after the Civil War, contains a Due Process clause that prevents any “State” from depriving any person’s “liberty” without due process of law. “Liberty” was held in a series of decisions to include many (but not all) the rights set out in the Bill of Rights. Hence the First Amendment is “incorporated” in the 14th Amendment’s Due Process clause applicable to State governments and their political subdivisions. The bottom line is that no governmental entity, not just Congress, may “abridge” Freedom of Speech.
The basic question to be asked, is does the First Amendment protect all “speech.” The quick answer is that none of the amendments in the Bill of Rights are absolute. You can’t shout fire in a crowded theatre, and you may not solicit another to commit murder. Both are speech. Both are crimes. And the First Amendment is no defense to either.
The next question to be asked is what is “speech.” How expansive is the definition of speech? It’s talk for sure. But is a song, is an expressive dance, is silence itself in some contexts, speech? Yes, of course.
In constitutional analysis the debate is usually between what is speech and what is conduct. The importance from an analytical standpoint is the “test” the Supreme Court uses to determine if a specific law, ordinance, or state action is an unconstitutional restraint on Free Speech.
If it is conduct, the test is easy to pass. The test used is the Rational Basis test. It’s the same standard test for regular laws. Any law must be based on reason. Not necessarily a good reason, but if there is a reason behind it satisfies the test. Laws regulating conduct that have a rational basis for implementation pass the test of Constitutionality.
If speech, like all fundamental rights, it must pass a Strict Scrutiny test. A very exacting test. There must be a Compelling Reason and no reasonable alternatives. Most laws can’t pass Strict Scrutiny. Depending on the kind of speech, i.e. pornography or advocating the violent overthrow of the government other tests must also be passed, but foundational is the Strict Scrutiny test.
And what kind of speech is it? The Supreme Court recognizes that there are Categories of Speech, both protected and unprotected. And whether it can be constitutionally restrained may depend on which category the speech fits into.
What is unprotected speech? Pornography, hate speech, fighting words, advocating the overthrow of the government. What is protected speech? Political speech for sure. But also poetry, literature, verbal and written expression, both the worthy and the unworthy.
Can speech be regulated? Yes. Time, manner and place can be regulated. Marching through residential neighborhoods shouting into bullhorns in the middle of the night, picketing on the property of a military installation, shooting off fireworks outside a grammar school while it is in session can be regulated. However, content cannot be banned using this method in a selective manner. That is viewpoint discrimination. For example, all signs advocating a political message can be banned from certain locations like inside buses. But not just selective messages. You can’t ban anti-abortion messages, but allow pro-abortion messages, for example.
The real question is not so much what the Constitution permits as whether government officials, college administrators, and others have the will power to enforce reasonable restrictions, and to resist the temptation to appease the loudest and most threatening.
All the rudeness, the boorishness, the shouts, the vulgarity, the outright intimidation of another person’s viewpoint, the heckler’s veto, we don’t have to take it. It can be stopped. It should be. Laws and rules already exist. They can be and should be enforced. But know this . . .citing and releasing doesn’t work. Milquetoast condemnations by weak kneed administrators doesn’t work.
Arrest, booking and time behind bars does.
For other writings by Phil Cline, visit philcline.com
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