Free Speech Topoi

The arguer says: however legitimate it may seem to punish this speech, if we made a rule punishing this kind of speech, it would cause people to think twice about saying anything even vaguely like it, thus effectively suppressing or "chilling" even quite valuable speech.

Brennan, New York Times v. Sullivan (1964): "Whether or not a newspaper can survive a succession of [libel] judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot [survive]. . . . . A rule compelling the critic of official conduct to gurantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to . . . 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the defendant, doe not mean that only false speech will be deterred. [Under] such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it only statements which 'steer far wider of the unlawful zone.' The rule thus dampens the vigor and limits the variety of public [deliberation]."

The arguer says: In order to see whether the speech in this case is protected by the first amendment or not, we need to compare (weigh, balance) the value of the speech against the likely harm the speech may do. Whichever side "weighs" more, wins.

Chief Justice Vinson, Dennis v. United States (1951): "Chief Judge Learned Hand, writing for the majority below, interpreted the phrase ['clear and present danger'] as follows: 'In each case [courts] must ask whether the gravity of the "evil," discounted by its imporbability, justifies such invasion of free speech as is necessary to avoid the danger.' We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time." [Vinson goes on to reason that the trial court determined that the Communist party presented a grave risk of the large evil of revolution, presumably outweighing the value of any speech.]

The rules established by statute or by the Supreme Court must be understandable enough to give fair notice to speakers and publishers. If they are vague, even a speaker who wants to comply with a law may violate it by mistake. Vague laws may therefore be struck down as violating the constitutional requirement of due process; and if there is no way to draft a non-vague rule, that may be reason to give up on attempts to regulate in some area.

Brennan, dissenting in Miller v. California (1973): "After 15 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available [definitions of 'obscenity'], including the one announced today, can reduce the vagueness to a tolerable level. . . . Any effort to draw a constitutionally acceptable boundary on state power must resort to suh indefinite concepts as 'prurient interest,' 'patent offensiveness,' 'serious literary value,' and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncracies of the person defining them. Although we have assumed that obscenity does exist and that we 'know it when [we] see it,' we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech. . . . The resulting level of uncertainty is utterly intolerable."

If we don't know what the First Amendment means, we can look for help to what people have traditionally thought it meant, 'from time immemorial.' In particular, we can look to what the people thought who originally ratified the First Amendment. If there was a general understanding that some speech practice was allowable, then it is possible that the First Amendment requires it to continue. If there was a general understanding that some speech practice was able to be regulated, then it is possible that the First Amendment allows it to be regulated. Notice, however, that these points have an easy reply.

Brennan, in Roth v. United States (1957): "The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, [comments] found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. . . . In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance [--and in particular, not obscenity]."

Physical blows inflict injury directly on another person's body. But speech can only cause harm by being deciphered, understood and responded to. This means that a speaker is not responsible for any harm that comes about. Rather, it is the hearer who is primarily responsible, since the hearer's mental activity is a necessary aspect of there being any harm at all. (I've named this topos after Frank Haiman, who used to teach this course, since this was one of his favorite arguments and he used it often to very good effect).

Brennan, dissenting in Paris Adult Theater v. Slaton (1973): People are, of course, offended by many offerings made by merchants in this area [sc. obscenity]. They are also offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that offend someone is endless. Some of it goes on in private; some of it is inescapably public, as when a government official generates crime, becomes a blatant offender of the moral sensibilities of the people, engages in burglary, or breaches the privacy of the telephone, the conference room, or the home. Life in this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct. [And] "obscenity" at most is the expression of offensive ideas.

While offensiveness may not in general be a sufficient reason to regulate speech, it can become a greater concern when some people are being almost forcibly exposed to that speech. Speech that otherwise couldn't be abridged may be abridgable if it's directed at a 'captive audience.'

Douglas, dissenting in Public Utilities Commission v. Pollak (1952): "The present case involves a form of coercion to make people listen. The listeners are of course in a public place. [But] in a practical sense they are forced to ride, since this mode of transportation is today essential for many thousands. Compulsion which comes from circumstances can be as real as compulsion which comes from a command. [T]he man of the streetcar has no choice but to sit and listen, or perhaps to sit and try not to listen.

There is a standard counter to this argument: namely, the argument that the audience is not in fact captive, but can easily look away.

Harlan, in Cohen v. California (1971): "While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, we have at the same time consistently stressed that 'we are often "captives" outside the sanctuary of the home and subject to objectionable speech.' . . . . In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes."

Free speech decisions set precedents for future decisions. An advocate can therefore argue that setting the current precedent will lead to further decisions which will eventually result in either complete anarchy or the total elimination of free speech. This argument can generally be made on either side of any free speech issue. But it works best when the intermediate steps between the present decision and the ultimate ruin are carefully described, and the causes that make the slip down the slope inevitable carefully articulated. In other words, it works best when it's true.

We're always most tempted to get rid of speech that is unpopular: distasteful, repugnant, offensive or disturbing to the majority. Most people find little or no value in such speech. But it is precisely this unpopular speech that most needs protecting under the First Amendment. After all, the majority is never going to pass a law against popular speech, now is it?

Stewart, dissenting in Young v. American Mini Theatres (1976): "In placea of these principles the Court invokes a concept wholly alien to the First Amendment. Since 'few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice,' the Court implies that these films are not entitled to the full protection of the Constitution. This stands 'Voltaire's immortal comment' ["I disapprove of what you say, but I will defend to the death your right to say it"] on its head. For if the guarantees of the First Amendment were reserved for expression that more than a 'few of us' would take up arms to defend, then the right of free expression would be defined and circumscribed by current popular opinion. The guarantees of the Bill of Rights were designed to protect against precisely such majoritarian limitations on individual liberty."

Brennan, dissenting in Osborne v. Ohio (1990): "When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed. Mr. Osborne's pictures [of children in sexual poses] may be distasteful, but the Constitution guarantees . . . his right to possess them privately."

Since we have special reasons to value speech, we should not decide to regulate speech unless we have no choice--there is no other way to accomplish some objective. If there is some alternative remedy to the problem the regulation is trying to solve, that remedy should be chosen instead. (Note that "Bad Speech?/More Speech!" is a sort of alternative remedy: if there is time to remedy the problem of "bad" speech through education, that is the "alternative remedy" to be selected.)

[I can't find a quotable example, but see Burger's argument in Nebraska Press Association (1976) that pretrial publicity cannot be suppressed, since the trial court has other ways of ensuring a fair trial--change of venue, questioning of potential jurors, postponement.]

Note that this argument can be inverted. A regulation of speech may be constitutional because the speaker has "alternative remedies"--has another channel, medium or method for conveying the same idea.

Stevens, in City Council v. Taxpayers for Vincent 1984: "While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate. The Los Angeles ordinance [prohibiting signs on telephone poles] does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited, To the extent that the posting of signs on public property has advantages over these forms of expression, there is no reason to believe that these same advantages cannot be obtained through other means. To the contrary, the findings of the District Court indicate that there are ample alternative modes of communication in Los Angeles.

Allowing one person to speak often has consequences for other people's free speech rights as well. In particular, bystanders may often be implicated in the speech; it may somehow become their speech. But forcing people to speak, or forcing them to associate themselves with a message that they do not endorse, violates the First Amendment just as much as prohibiting them from speaking. [We haven't gone over this one in class, but I thought I'd throw it in.

Souter, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995): "[Requiring inclusion of lesbian and gay irish folk in a parade] violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. 'Since all speech inherently involves choices of what to say and what to leave unsaid,' one important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say.' [The state] may not compel affirmance of a belief with which the speaker disagrees. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid. Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful."