Freedom Of Speech

The Fourteenth-Amendment jurisprudence requiring States to obey the “free-speech” clause of the First Amendment captures the essence of the bait and switch: while appearing to strike a blow for individual freedom, the Court in fact poked enough “exceptions” into free speech to transform that once-solid concept into Swiss cheese. As a result, the Court now enjoys the perpetual power to re-define what types of speech we’re allowed to engage in.

As with the rest of the Bill of Rights, the First Amendment’s “free-speech” clause functions solely as a reminder of the federal government’s limited, enumerated powers. States have always regulated speech such as libel, slander, incitement, and obscenity; the First Amendment could not and did not restrict States from using their police power in this regard. The most recurring example – often trotted out to support impermissible federal speech restrictions – is a State’s prerogative to prohibit someone from shouting “fire” in a crowded theater. 

Yet this crystal-clear distinction between the States’ power to regulate speech on the one hand versus federal impotence to regulate speech on the other hand could not survive the meddlesome twentieth century. Similar to the farcical jurisprudence regarding religion, the Court simply announced one day that the “free-speech” clause restricts the States, using the familiar ruse of upholding the state law in question. In 1925 the Court reviewed a New York criminal statute that penalized “criminal anarchy,” such as advocacy of overthrowing organized government by force.* Without any historical or legal analysis, the Court decreed that “we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgment by Congress – are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Upon making this decree, the Court proceeded to tear a hole in this “fundamental right” by holding that “the freedom of speech and of the press which is secured by the Constitution [ ] does not confer an absolute right to speak or publish, without responsibility, whatever one may choose . . . .” 

After plowing this territory, the Court went on to sow scores of opinions that 1) decreased state power over speech, while 2) increasing federal power over speech. 

With regard to the former, States lost much of their ability to craft policies advancing their citizens’ standards of propriety and decency. California lost the ability to prohibit a man from entering a county courthouse while wearing a shirt with a profane slogan. Kentucky lost the ability to set advertising standards for its attorneys (despite the fact that attorneys are officers of the court and eligible to practice only at a State’s pleasure).** Texas lost the ability to penalize flag-burning (despite many Supreme Court decisions allowing States to regulate the time, place, and manner of speech, if not the content). Alabama lost the ability to grant its “public-figure” citizens monetary recovery for defamation, unless those citizens could show that the defamation was uttered with knowledge of its falsity or with “reckless disregard” for its truth or falsity (a fabricated standard and nearly impossible to satisfy). Georgia citizens lost the ability to determine what constitutes obscene entertainment worthy of penalty. Iowa lost the ability to enforce a dress code for its public-school students. And Arizona lost the ability to restrain prison inmates from posting on the Internet, since a federal judge subscribed to the cockamamie theory that a convict enjoys not only an unvarnished right of free speech, but also a right of access to any technological means that may facilitate such speech. 

On the other side of the equation, the federal government reaped the benefits of the various novel exceptions to the First Amendment’s uncompromising words. Congress won the ability to criminalize speech aimed at overthrowing the government. Congress won the ability to criminalize the mailing of “obscene” materials. Congress won the ability to regulate advertising and similar “commercial” endeavors. Congress won the ability to regulate obscenity in the broadcast media. Congress won the ability to require “fairness” in the viewpoints presented in the broadcast media. Congress won the ability to compel cable providers to carry the signals of broadcasters. During the Bush administration, Congress won the ability to regulate monetary contributions, individual expenditures, and advertising in the context of political campaigns (i.e., the brand of speech most especially contemplated by the First Amendment’s protections).***  The Court showed at least some sanity more recently in Citizens United by holding that a corporation may spend its own money to pursue political speech, but even that basic recognition of the federal government's limited power has sparked tremendous controversy among an American public now disturbingly uncomfortable with the concept of freedom.

The pristine command that Congress shall make no law restricting freedom of speech has given way to a fickle Supreme Court that insists on re-visiting and re-defining what “freedom of speech” really means. Whether it’s “obscenity,” “commercial speech,” “incitement,” or any other orchestrated basis for federal intrusion, the boundaries of our speech have been steadily transferred out of our immediate control and to the denizens of Washington, D.C. (the very people whom the First Amendment sought to exclude from determining these matters).

 ____________________________________________________________________________

* This type of law proliferated during America’s first “Red Scare,” which erupted in the 1920s and ’30s. The birth of the Soviet Union had spurred the growth of several left-wing groups, and many Americans reacted with alarm. 

** This attorney-advertising holding illustrates yet another example of how the difference between rights and benefits – mentioned previously with regard to segregation in public schools – has gone extinct. When a State sets speech conditions for its employees and officers, there is clearly no violation of individual rights because there is no inherent right to the employment in the first place. That which may be completely denied may also be conditionally granted. As the celebrated Oliver Wendell Holmes observed: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him." McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517-18 (Mass. 1892).  Today's court venerates Holmes in name, yet trashes this gem of his jurisprudence by cloaking recipients of public largesse with a "right" to challenge and eliminate speech conditions attached to that largesse.

*** President Bush openly admitted that he believed this campaign “reform” measure was unconstitutional, but he then proceeded to sign it into law on the belief that the Supreme Court would have the gumption he lacked to strike it down (which belief turned out to be wrong at the time). In so doing, Bush proved himself not only a coward, but also a liar who violated his oath of office to “preserve, protect and defend the Constitution of the United States.”