The 1st Amendment: The Delicate Dance of Protecting Speech In a Democratic Society

In episode 78, we continue our journey of disecting the First Amendment by delving into the heart of America's freedom of speech. Prepare to have your understanding of this cornerstone of democracy expanded and challenged, as we navigate the nuances of our right to express ourselves!

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References: 

• First Amendment | Contents, Freedoms, Rights, & Facts | Britannica
• U.S. Constitution - First Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress
• Freedom of Speech - Origins, First Amendment & Limits (history.com)
• Content Neutral - The Free Speech Center (mtsu.edu)
• Content Based - The Free Speech Center (mtsu.edu)
• Clark v. Community for Creative Non-Violence (1984) - The Free Speech Center (mtsu.edu)
• Thomas v. Chicago Park District (2002) - The Free Speech Center (mtsu.edu)
• Overview of Viewpoint-Based Regulation of Speech | U.S. Constitution Annotated | US Law | LII / Legal Information Institute (cornell.edu)
• Chaplinsky v. New Hampshire | Teaching American History
• Heffron v. International Society for Krishna Consciousness (1981) - The Free Speech Center (mtsu.edu)
• Content Based Regulation | U.S. Constitution Annotated | US Law | LII / Legal Information Institute (cornell.edu)
• Boos v. Barry(1988) - The Free Speech Center (mtsu.edu)

This episode was edited by Kevin Tanner. Learn more about him and his services here:

• Website: https://www.kevwyxin.com/
• Instagram: @kevwyxin

If you purchase from any links to resources or products, the show may make a small commission.

Transcript

Ashley: 0:00

So, while freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea, so flag burning is an example of symbolic speech that is protected under the First Amendment. Welcome back to the United. She Stands podcast, the show that brings kindness and women into politics. I'm Ashley.

Sara: 0:26

And I'm Sarah, and we're two women from Ohio who are here to become more educated about American politics and build a community so we can all get involved and make an impact together.

Ashley: 0:36

We hope we'll inspire and empower you along the way. Hello everyone, and welcome back to another episode of the United she Stands podcast. We have another episode for you today on the First Amendment, all about freedom of speech. So if you missed our first episode on the First Amendment, you can go back and give it a listen to learn all about how the First Amendment gives us the right to freedom of religion. Do you want to dive in? Sarah, let's dive in.

Sara: 1:11

So we're going to start with a bit of a recap, in case you missed the Freedom of Religion episode or in case it's just not your cup of tea and you're here just to learn about freedom of speech. Bear with us here for the next few minutes if you've heard this before, but the First Amendment was ratified in 1791 as part of the Bill of Rights, which, as a reminder, is the first ten amendments in our US Constitution. The First Amendment states 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. That one sentence, right there, gives us five freedoms Religion, speech, press, assembly and petition. Even though that's just one sentence, there's so much that goes into each clause of that sentence. So today we're here to specifically break down the freedom of speech clause for you, you and to talk about the interpretation from the courts of this amendment over the years.

Ashley: 2:14

But before we do that, we did come up with a fun mnemonic phrase in our freedom of religion episode so we could remember and help you, the listener remember, the five freedoms we have protected by the First Amendment. Sarah, can you name the five again without looking, or can you remember our mnemonic phrase we made up?

Sara: 2:27

I can do both. Baby love it. Race, yes, race stein's pour a pint. Race religion stein's speech, p petition a assembly pint press yeah, yes race Ray Stein's pour a pint.

Ashley: 2:45

Religion speech. Press assembly petition.

Sara: 2:47

You got it, let me just tell you that is the reason I made it through education, like any level of education like those type of things. I would make up little silly things in my head, and that's how I remembered things for tests. Yes, yeah, I mean that's a good one.

Ashley: 3:00

Okay. So if you missed it before, you now have our beer theme mnemonic phrase to help you remember the five freedoms the First Amendment gives you. So, moving on, as we said today, we are actually going to just break down one of those freedoms, one little clause, and that is the freedom of speech. There is so much that goes into interpreting our laws, and the speech clause from the First Amendment is no exception. Let's dive in.

Sara: 3:20

So, specifically in the First Amendment, there is this teeny, tiny little clause that comes after the religion clause and states or abridging the freedom of speech. So Congress shall make no law abridging the freedom of speech. And that tiny little clause, while it leaves us with a whole lot of gray area, it also does a whole lot of heavy lifting when it comes to our rights.

Ashley: 3:42

So let's get into it, shall we? We shall. The First Amendment guarantees free speech, though the United States, like all modern democracies, does have limits on this freedom, and I think when you say that, some people would be like what the fuck? Like freedom of speech, you can't limit my speech. But it actually makes sense and I think is probably actually more common knowledge than we even realize, since the First Amendment doesn't specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn't be protected by law has I'm sure in no shock to anyone if you've listened to any other episode has fallen largely to our courts. So the US Supreme Court in landmark cases throughout our history has done basically just that. They have helped to define what types of speech are and are not protected under US law.

Sara: 4:24

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion, even an unpopular or unsavory one, without fear of government censorship. It protects all forms of communication, from speeches to art and other media, as well as some symbolic speech, and let's explore some of those.

Ashley: 4:46

So we'll start with freedom of expression. Freedom of expression is the right to speak, to be heard and to share opinions and ideas without fear of retaliation, censorship or legal sanction. So I think for most people, this is probably what they think of when they think the First Amendment. In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. For example, shouting fire in a crowded theater and causing a stampede would be a direct and imminent harm, meaning you can't do this and this limit on speech is acceptable.

Sara: 5:15

In deciding cases involving artistic freedom of expression, the Supreme Court leans on a principle called content neutrality. Court leans on a principle called content neutrality. Content neutrality means the government can't censor or restrict expression just because some segment of the population finds the content offensive. So the Supreme Court does treat content-based versus content-neutral laws differently. Content neutrality laws generally regulate only the time, place and manner of speech and are usually found constitutional. They must regulate speech without reference to the speech's substance, be narrowly tailored and leave open alternative avenues of expression. So let's go through a few examples.

Ashley: 5:54

The first is a National Park Service regulation prohibiting camping in certain federal parks. This is determined in Clark v Community for Creative Nonviolence in 1984. The case began when the Community for Creative Nonviolence, also known as CCNV, sought an injunction against the Park Service's regulation prohibiting camping so it could hold a demonstration in Lafayette Park, right across from the White House and on the National Mall, to highlight the plight of homelessness. The demonstrators planned to sleep in tents to demonstrate how the homeless live. The district court found in favor of the park service but the federal appeals court overturned the ruling, finding that the regulation infringed the demonstrators' free expression. The Supreme Court then reversed that ruling.

Ashley: 6:35

The Supreme Court noted that sleeping in the tents was a form of symbolic expression but made the distinction that symbolic expression was subject to reasonable time, place and manner restrictions.

Ashley: 6:46

For guidance in determining whether these regulations were acceptable, the court turned to United States v O'Brien in 1968. In applying the O'Brien test, the regulation first had to be within the power of the government. The court found that the government had an adequate foundation of power to enact the regulation In this particular case. The regulation against camping had not been made for the purpose of limiting the expression of any form of ideas. Rather, the regulation had been narrowly crafted to further the substantial government interest of protecting national parks so that they can be enjoyed by millions of people. The need to protect the national parks extended to Lafayette Park and the National Mall, which would be substantially changed if camping were allowed there. The court also found that the regulation left ample opportunities for demonstrators to express their views, specifically pointing out that the Park Service had granted a permit, in response to a CCNV request, to set up 20 tents in Lafayette Park and 40 tents on the National Mall.

Sara: 7:39

Another example is a city park requiring advance application for gatherings of more than 50 individuals in Thomas V, chicago Park District in 2002. The Supreme Court upheld a Chicago ordinance requiring individuals holding events in a public park involving more than 50 persons to obtain a permit, finding that the ordinance contained sufficient procedural safeguards to satisfy First Amendment scrutiny. They ruled that this law applied content-neutral time, place and manner regulations of the use of a public forum. And last example we have here is a Minnesota ruling prohibiting the sale or distribution of any merchandise, including printed materials, in parks in Heffron v International Society for Krishna Consciousness 1981. In this case, a Minnesota regulation prohibited anyone at the Minnesota State Fair from selling or distributing any written material except from designated fixed location booths, because Krishna religious doctrines commanded its members to go out into public places and distribute their religious material.

Sara: 8:40

The International Society for Krishna Consciousness challenged this regulation, arguing that it restricted their religious practices. The court found that the state fair regulation was categorized as a content-neutral time, place and manner regulation. The regulation did not discriminate. It forbade every person and organization from distributing literature or soliciting donations except from a fixed booth. As such, this regulation was subject to a lower standard of review than would be applied to content-based regulations. Unlike the strict scrutiny test, content-neutral time, place and manner regulations only had to be supported by a significant state interest and leave open alternative channels for communication of the information, which this regulation did. The court found that the significant state interest was the need to maintain the orderly movement of the huge crowds of people attending the state fair, and access to alternate forums was not denied without or within the fairgrounds. The concept has become known as the Heffron principle and has been applied in many free speech cases since then.

Ashley: 9:40

So these examples of laws are situations where the content didn't matter. It wasn't a specific message or a specific type of content that was limited or prohibited. It was all content for that specific time place, or for both time and place. Now let's talk about the opposite, which are content-based laws, and these regulate speech based on the content. This distinction is important in First Amendment cases, because courts hold content-based laws to very strict scrutiny, while holding content-neutral laws only to intermediate or mid-level scrutiny. Many content-based laws are struck down by the courts.

Sara: 10:11

Let's walk through a few more examples here. The first one we have is a law imposing financial burdens on literary works by former felons mentioning past crimes, and this is in Simon and Schuster v Members of the New York State Crime Victims Board from 1991. To explain this case we have to start back in 1977. The son of Sam killer, david Berkowitz, made national headlines for a second time by earning large profits on the sale of his memoir about the murders that made him infamous. There was a lot of public outcry and state and federal legislators enacted Son of Sam laws to prevent criminals from profiting from their stories of their crimes. These laws redirected any profits derived from the sale of memoirs or criminal admissions to the victims of those crimes. So then later, in 1986, publishing company Simon Schuster contracted with Henry Hill, a mobster turned informant, for the publication of a book based on Hill's life by Nicholas Pilligy titled Wise Guy Life in a Mafia Family. The book sold well and was later adapted to the movie screen as Goodfellas.

Sara: 11:17

After publication of the book, the New York State Crime Victims Board notified Simon and Schuster that it was violating New York's Son of Sam law. Simon and Schuster sued the board, claiming that the law violated the First Amendment. The district court and the Second Circuit Court of Appeals upheld the statute. So it goes to the Supreme Court and in an 8-0 decision authored by Sandra Day O'Connor, the court unanimously reversed the lower court's decisions. The court held that the statute was content-based and therefore presumatively inconsistent with the First Amendment and subject to strict scrutiny. The court held that the state had a compelling interest in depriving criminals of the profits of their crimes and then using these funds to compensate victims. But the statute was not narrowly tailored to achieve the compelling interests and violated the First Amendment.

Ashley: 12:04

So another example we have is a District of Columbia law prohibiting display of signs critical of foreign governments within a certain distance outside embassies, and this was in Booz vry. In 1988. The supreme court ruled that a district of columbia law violated the first amendment by banning the display of signs criticizing a foreign government outside that government's embassy. A section of the district of columbia code contained two provisions concerning protests at embassies. The display clause prohibited signs from being displayed within 500 feet of an embassy if the signs tended to bring the government of the embassy's country into public odium or public disrepute. The Congregation Clause banned any gathering of three or more people within 500 feet of an embassy.

Ashley: 12:47

Writing for the court again, justice Sandra Day O'Connor determined that the Display Clause of the law was unconstitutional, whereas the Congregation Clause was permitted as limited by the Court of Appeals interpretation. O'connor began her analysis of the Display Clause by explaining that the prohibited speech protests of governments was at the core of the First Amendment, as it was classically political speech. In addition, the law restricted speech in the traditionally public forum of the public sidewalk. O'connor further found that the ban compromised content-based regulation of speech. For these three reasons, she noted, the display clause would have to pass strict scrutiny to be upheld. O'connor specifically compared the statute to another statute passed by Congress, which prohibited intimidating or harassing foreign officials, and noted that the vastly broader application of the display clause, with its outright ban of protest signs whether intimidating or not, was not narrowly tailored. So overall.

Sara: 13:40

in regards to content-based laws, the Supreme Court has stated government has no power to restrict expression because of its message, and that basically sums up content-based speech. Aka, it's usually a big no-no. So how does the court determine if something is content content neutral or content-based? Well, they recognize it's not always easy to do. The Supreme Court explained in Ward v Rock Against Racism in 1989 that the principal inquiry in determining content neutrality in speech cases generally is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.

Ashley: 14:17

So to summarize this, content neutrality versus content-based section here, speech can be restricted by a content-neutral law that imposes only an incidental burden on speech if it furthers an important or substantial governmental interest, if the governmental interest is unrelated to the suppression of free expression and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest, aka if it's protecting something or someone, they can likely limit your speech in a content neutral way. Similarly, the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest and that they leave open ample alternative channels for communication of the information. So content neutral laws generally okay if they do those things. Content based laws are generally a big no-no. Big no-no, that's a summary.

Sara: 15:16

So outside of content-based speech, there is also viewpoint-based speech. We won't get into too much detail here, but a law is viewpoint-based when it regulates speech based on its specific motivating ideology or the speaker's opinion or perspective. The important thing to note here is that the Supreme Court has ruled that limiting viewpoint-based speech is an egregious form of content discrimination, aka limiting this form of speech is also a big no-no. The free speech clause generally prohibits the government from restricting speech based on the particular views expressed in that speech.

Ashley: 15:51

So, while freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea, so flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, texas, to protest the Reagan administration. The US Supreme Court in 1990 reversed a Texas court's conviction that Johnson broke the law by desecrating the flag. Texas v Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning. This is probably the most well-known case that protects symbolic speech.

Sara: 16:31

The Supreme Court has also ruled on cases that have protected free speech in schools. In 1965, students at a public high school in Des Moines, iowa, organized a silent protest against the Vietnam War by wearing black armbands. To protest the fighting, the students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students. The Supreme Court didn't bite. They ruled in favor of the students' right to wear the armbands as a form of free speech. In Tinker v Des Moines Independent School District. The case set the standard for free speech in schools. However, first Amendment rights typically don't apply in private schools.

Ashley: 17:12

So we've talked about a few different forms of speech and what is protected, but we started off this episode by saying that not all speech was protected, so let's discuss that a bit. The Supreme Court has taken a categorical approach to what is not protected by the First Amendment. This means, based on the category of speech, it may not be protected. So what categories are included in the not protected list? Tell me protected list? Tell me obscenity, child pornography, defamation, which is also libel or slander, fraud, incitement, fighting words, true threats and speech integral to criminal conduct, aka speech that incites illegal actions or soliciting others to commit crimes.

Sara: 17:52

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I. The law prohibited interference in military operations or recruitment. Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed flyers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the Clear and Present Danger Standard, or TEST, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistance as dangerous to national security.

Ashley: 18:32

American labor leader and Socialist Party activist, eugene Debs, also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v United States, the Supreme Court upheld the constitutionality of the Espionage Act constitutionality of the espionage act. So that leaves us with the clear and present danger test which, to summarize, is a legal standard that limits the freedom of speech protection under the first amendment. If that speech creates a clear and present danger of bringing about the substantive of bringing about evils, that congress has a right to prevent. Um real quick side note, if you remember from our political parties episode, eugene debs was running for office under the Socialist Party and he was in prison during the election.

Sara: 19:22

From this case, and this is why, oh my gosh, look at that connection.

Ashley: 19:27

I know, go back and listen to political parties guys way back in the day. I don't even know what numbers they are. But they're out there.

Sara: 19:33

I'm surprised you usually know what number I know I don't know are out there. I'm surprised you usually know what number I know I don't know. So later, in Dennis v United States in 1951, the court adopted a flexible version of the clear and present danger test. And that is in each case the 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. The requisite danger of a conspiracy was found to justify the convictions. The clear and present danger test was a lighter restriction on governmental powers after Dennis and it virtually disappeared from the course language over the next 20 years.

Ashley: 20:13

That eventually leads us to Brandenburg v Ohio in 1969. Shout out Ohio, hey-o, hey-o. Which is a landmark decision by the Supreme Court that established the Imminent Lawless Action Test, also known as the Brandenburg Test. According to this test, speech that supports lawbreaking or violence in general is protected by the First Amendment unless it directly encourages people to take an unlawful action immediately.

Sara: 20:40

So some more background. In Bradenburg v Ohio, the Supreme Court reversed a conviction under a criminal statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change. Previously, the court has upheld that mere advocacy was protected, but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association. Regardless of the probability of success In Bradenburg, however, the court reformulated these and other rulings to mean that the constitutional guarantees of free speech and free press do not permit a state to forbid or prescribe advocacy of the use of force or of law violation, except which such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. And is likely to incite or produce such action, the court has applied to Bradenburg formulation in subsequent cases. However, a number of questions remain with respect to the eminence and likelihood aspects of the standard, like how are those determined? We're not really sure.

Ashley: 21:50

All right. So now, if you remember, back to our list of speech that is not protected, we listed something called fighting words and if you remember our content-based section of this episode, we said content-based limitation on speech was typically a big no-no. Well, here we have an example where limiting content-based speech is acceptable, and that's when that speech is considered fighting words. Fighting words is actually pretty much exactly what it sounds like. So let's look at it here.

Ashley: 22:16

In Chaplinsky v New Hampshire 1942, to explain, chaplinsky was distributing religious literature on a public street while denouncing organized religion as a racket, a hostile crowd gathered. After police removed him for his own protection. An angry verbal exchange with authorities then ensued. Chaplinsky said to a police officer in quotes here you are a goddamned racketeer and a damned fascist and the whole government of rochester are fascists or agents of fascists. Damn, yeah, he was a bit angry. So, based on these remarks, chaplinsky was convicted for violating a new hampshire state law that punished the use of offensive, derisive or annoying speech.

Ashley: 22:58

The court upheld Chaplinsky's conviction on the basis of the fighting words doctrine. According to them, such words, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. Moreover, they play no essential part of any exposition of ideas and are of such slight social value that they may be permissibly restricted in the greater interest of morality and public decency. The fighting words doctrine is one of the rare content-based exceptions to the court's general rule of content neutrality. Along with libel and obscenity, it constitutes a category of punishable speech outside of the First Amendment.

Sara: 23:34

Those are fighting words. Those are fighting words. I kind of love that. Wow, wow, wow, wow. So you can probably tell there's a lot of nuance around speech that is not protected and we haven't yet touched obscenity, child pornography, true threats, defamation and fraud and I'm sorry to say but we're not going to. It's not that they're not important, because they absolutely are. We have decided to omit the details from this episode based on the time, because it's getting pretty lengthy and we know we probably lost y'all. So to go into some of these we'd have to go into things like privacy, torts and hate speech and so so much more, and it's really nuanced stuff. So in the interest of giving you a high level understanding of your First Amendment right to free speech, we are omitting those for now. The sources in our show notes have so much information on all of these types of speech, so please feel free to check them out or, if you really really want more from us, let us know and we can maybe make that happen for you.

Ashley: 24:32

So freedom of speech, what is protected, freedom of speech, what is protected and what is not protected. Maybe not so straightforward, yeah yeah, this clause in the First Amendment does give us many protections, and the course of the years have helped to clarify those protections, as well as those forms of speech that are not protected. And the crazy thing is we still didn't touch on it at all, even more so than just the stuff Sarah mentioned. We didn't talk about things like what protections to free speech mean to campaign finance. What is speech in regards to public employees' rights? What about media regulation in regards to speech, et cetera, et cetera, et cetera. We could keep going.

Ashley: 25:05

There are just so many implications that this freedom we love and that is so important to our democracy has on other aspects of our political system. We just cannot go into all the details, unfortunately, in one podcast episode, but we do hope you better understand your right to free speech. That is protected by the First Amendment and, most importantly, next time someone yells at you about Facebook limiting their free speech, you are educated and informed enough to let them know that their Facebook post is not a constitutionally protected form of free speech, as the government is not limiting their voice in any way. You can blame Mark Zuckerberg, and he owns a private company whose platform you have willingly chose to use, and so he's allowed to do whatever he wants. There you go.

Sara: 25:43

There you go. I guess I'll just I'll tie a nice little bow on this and just say be careful with those fighting words, those fighting words, yeah.

Ashley: 25:53

Thanks for tuning in, guys. If you learned anything, share this with a friend who would enjoy it, and we'll catch you next time, see ya.

Sara: 26:05

Thanks for joining us for today's episode. We really appreciate the support.

Ashley: 26:10

We would also really appreciate it if you hit the follow button and share this episode with anyone you think would enjoy it.

Sara: 26:15

And we'd like to thank Kevin Tanner, who edited this episode. If you're interested in learning more about him and his services, his website and Instagram are in the show notes With that we'll see you next week.

Ashley: 26:36

I think that's right. I feel like I said it wrong earlier.

Sara: 26:40

Okay, cool, I mean, I mean, I mean that's, that's a, it's a weird word, what, I'm sorry? No, no, no.

Ashley: 26:52

You said it beautifully. It's just funny, I know, cause it also sounds like B-O-O-Z-E, but anyway, section 22-1115. Is that how you would say that?

Sara: 27:09

Yeah, I'm going to say okay, based of its message. What? Because I just totally said whatever the fuck I wanted to say in quotes too. In quotes here, sarah's quotes, actually only mine. The supreme court did not say this. Sorry, sandra, okay.

Ashley: 27:34

G Gregorily why are words so hard, greg? Come on okay, chaplinsky was distributing. I'm like so focused on saying that name, right, I can't all other normal words.

Sara: 28:00

Oh, okay, also I love how annoying is the last one I know you just can't have annoying speech sorry guys, just don't be annoying.