Extremist speech is generously protected under the first amendment to the Constitution as interpreted by the Supreme Court in this century. What speech should be classified as "extremist" is, of course, a difficult matter, one that will vary from culture to culture. In some countries advocating freedom of speech may itself be "extremist." But in the United States the label of extremist speech is reserved for speech that advocates violent overthrow of the government, the commission of serious crimes (such as assassination), racism, and anti-Semitism or discrimination against other minorities or groups. And, in this country, it has been decided that this speech will receive constitutional protection.
Probably the most widely known contemporary instance of the protection of extremist speech arose in the late 1970s when a small group of neo-Nazis from Chicago announced their intention of conducting a march in the Chicago suburb of Skokie, home to some 40,000 Jews and several thousand survivors of world war ii German concentration camps. The city resisted, enacting a number of ordinances prohibiting, among other things, speech known as group libel, that is, speech that would "portray criminality, depravity or lack of virtue in, or incite violence, hatred, abuse or hostility toward a person or a group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation." The american civil liberties union, on behalf of the neo-Nazi group, challenged the city's interference with the proposed march as unconstitutional under the First Amendment. The Courts sustained the challenge. Both the Illinois Supreme Court and the U.S. Court of Appeals for the Seventh Circuit, in two separate cases, held that under modern Supreme Court precedents it was beyond doubt that even this most offensive speech was constitutionally protected, absent a showing that the speech was about to turn into illegal conduct.
In fact, cases involving extremist speech constitute the backbone of the First Amendment jurisprudence. This is true, in part, because the very first cases involving free speech issues to come before the Supreme Court (which did not occur until 1919) involved extremist speech. The Supreme Court, therefore, began the process of developing modern First Amendment jurisprudence in contexts where the issue at hand was to define the outer boundaries of the principle of free speech. Many cases followed over the next seventy years, of which the Skokie case was one.
As a result of these cases, much judicial and academic ink has been spent on deciding what should be the test for establishing the limits of the First Amendment. Various formulations have been devised. It has been said that First Amendment protection ends when there is a clear and present danger to the society (the test oliver wendell holmes initially proposed in 1919); when speech explicitly advocates illegal action (the test proposed by Judge learned hand in 1918); when speech will in the due course of events threaten the overthrow of government (which was approximately the test the Court followed during the nadir of First Amendment protection in the era of mccarthyism) ; or when speech threatens imminent serious illegal behavior and is directly intended to incite such action (the prevailing test today).
Cases involving extremist speech have been so important to the development of First Amendment jurisprudence because they have raised independent, or separate, theoretical issues about the role and meaning of the modern idea of freedom of speech. Two major issues should be noted.
First, drawing the boundaries of freedom of speech involves more than just knowing what the basic purposes of the First Amendment are. Because we live in an imperfect world, rules of law, including constitutional law, must prepare for tears and snags of a practical world. Language is rarely precise enough to foreclose mistaken applications of the rules we devise. Institutions must be relied upon to apply the rules, and the quality of institutional decisions will be dependent on the quality of the people who compose them. Thus, the extremist speech cases have posed a second issue: To what extent must unworthy speech be protected in order to insure that truly worthy speech—speech that advances the purposes of the First Amendment—will in fact be preserved? The difficulties of drawing that line, to achieve in a practical world the right level of free speech, are immense. One must consider to what extent legislative institutions will themselves be sensitive to freedom of speech, the degree to which citizens will be deterred from speaking by the perceived possibility of hostile government action, and the courage of judges to stand up to improper legislative attempts to interfere with valuable speech. Therefore, drawing the outer line at which constitutional protection stops generates its own important and fascinating issues, beyond the issue of deciding what purposes or values underlie the First Amendment. As a general proposition it may be said that modern First Amendment protection uses extremist speech to give "breathing space" to the right of freedom of speech.
But there is an even more important reason why extremist speech cases have commanded such attention over the past seventy years. It may well be the case that extremist speech protection furthers a distinctive First Amendment value, separate from its function of affording ample leeway to valuable speech. The classic rationales for free speech see the relationship between free speech and the discovery of truth and a democratic system of government. These have been forcefully articulated in cases involving extremist speech. But there is another potential First Amendment meaning, or value, at stake in these cases involving speech deeply threatening to basic values of American society. Extremist speech is often bad, as socially harmful as other bad acts that are regularly subject to social regulation. That means that free speech may be a special context in which the society chooses to let bad acts go unregulated as a symbolic act of self-recognition of the difficulties of dealing appropriately with bad acts—as, for example, by being too intolerant in the ordinary political process or by reacting with excessive harshness when bad acts are punished. This rationale of free speech focuses on the relationship between that principle and the general virtue of tolerance. It may well be, in other words, that the centrality of the extremist speech cases in the First Amendment jurisprudence arises out of the fact that they have added a new and significant, and distinctively American, role to the idea of freedom of speech.
Lee c. bollinger