Freedom of Speech (Update 1)

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Although the Supreme Court decided almost thirty cases addressing freedom of speech issues between 1985 and 1989, most of these decisions merely reaffirmed or only modestly refined existing doctrine. Perhaps most important, the Court in this period continued to invoke its content-basedcontent-neutral distinction as a central precept of first amendment jurisprudence. For purposes of this distinction, a content-based restriction may be defined as a law that limits speech because of the message it conveys. Laws that prohibit seditious libel, ban the publication of confidential information, or outlaw the display of the swastika in certain neighborhoods are examples of content-based restrictions. To test the constitutionality of such laws, the Court first determines whether the speech restricted occupies only "a subordinate position on the scale of First Amendment values." If so, the Court engages in a form of categorical balancing, through which it defines the precise circumstances in which each category of low-value speech may be restricted. In this manner, the Court deals with such speech as false statements of fact, commercial advertising, fighting words, and obscenity. If the Court finds that the restricted speech does not occupy "a subordinate position on the scale of First Amendment values," it accords the speech virtually absolute protection. Indeed, outside the realm of low-value speech, the Court has invalidated almost every content-based restriction it has considered in the past thirty years.

Content-neutral restrictions, the other half of the content-basedcontent-neutral distinction, limit expression without regard to the content of the message conveyed. Laws that restrict noisy speeches near a hospital, ban billboards in residential communities, or limit campaign contributions are examples of content-neutral restrictions. In dealing with such restrictions, the Court engages in a relatively open-ended form of balancing: the greater the restriction's interference with the opportunities for free expression, the greater the government's burden of justification.

It may seem odd that the Court uses a stricter standard of review for content-based restrictions (other than those involving low-value speech) than for content-neutral restrictions, since both types of restrictions reduce the sum total of information or opinion disseminated. The explanation is that the First Amendment is concerned not only with the extent to which a law reduces the total quantity of communication but also—and perhaps even more fundamentally—with at least two additional factors: the extent to which a law distorts the content of public debate, and the likelihood that a law was enacted for the constitutionally impermissible motivation of suppressing or disadvantaging unpopular or "offensive" ideas. These two factors, which are more clearly associated with content-based than with content-neutral restrictions, explain both why the Court strictly scrutinizes content-based restrictions of high-value speech and why it does not apply that same level of scrutiny to all content-neutral restrictions. As indicated, most of the Court's decisions about freedom of speech from 1985 to 1989 reaffirmed this basic analytical structure.

Perhaps the two most important Supreme Court decisions in the realm of freedom of speech in this era were hustler magazine v. falwell (1988) and Texas v. Johnson (1989). In Hustler Magazine the Court held that the First Amendment barred an action by the nationally known minister Jerry Falwell against Hustler magazine for a "parody" advertisement. The ad contained a fictitious interview with Falwell in which he allegedly said that he had first engaged in sex during a drunken rendezvous with his mother in an outhouse. The Court held that a public figure may not recover damages for the intentional infliction of emotional harm caused by the publication of even gross, outrageous, and repugnant material. In Johnson the Court held that an individual may not constitutionally be prosecuted for burning the American flag as a peaceful political protest. The Court explained that "if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of any idea simply because society finds the idea itself offensive or disagreeable." Justice anthony m. kennedy observed in a concurring opinion, "It is poignant but fundamental that the flag protects those who hold it in contempt." In each of these decisions, the Court emphatically reaffirmed the central structure of free speech analysis and declined the invitation significantly to expand the concept of low-value speech.

Although Hustler Magazine and Johnson involved expansive interpretations of freedom of speech, in at least three other areas in this era the Court appreciably narrowed the scope of First Amendment protection. First, there is the issue of commercial speech. Although the Court once had held that commercial advertising is of such low value that it is entirely outside the protection of the First Amendment, the Court overturned that doctrine in 1974 and held that commercial advertising is entitled to substantial—though not full—First Amendment protection. Specifically, the Court held that government may not constitutionally ban the truthful advertising of lawfully sold goods and services on the "highly paternalistic" ground that potential consumers would be "better off" without such information. More recently, however, the Court has retreated from this position. Indeed, in posadas de puerto rico assocs. v. tourism company of puerto rico (1986), which involved restrictions on advertising for lawful gambling activities, the Court held that even truthful advertising of lawful goods and services can be extensively regulated or banned in order to discourage "undesirable" patterns of consumption.

Second, the Court in recent years has increasingly granted broad authority to local governments to regulate expression that is sexually explicit, but not legally obscene. Although failing to classify sexually explicit expression as low-value speech, the Court has repeatedly sustained restrictions that curtail such expression in a discriminatory manner. In city of renton v. playtime theatres (1986), for example, the Court upheld a city ordinance prohibiting adult-film theaters from locating within 1,000 feet of any residential zone, church, park, or school, even though this effectively excluded such theaters from more than 95 percent of the entire area of the city.

Third, in dealing with speech in "restricted environments," such as the military, prisons, and schools, which are not structured according to traditional democratic principles, the Court has increasingly deferred to the judgment of administrators in the face of claimed infringements of First Amendment rights. In bethel school district v. fraser (1986), for example, the Court upheld the authority of a public high school to discipline a student for making a campaign speech that contained sexual innuendo; in hazelwood school district v. kuhlmeier (1988) the Court upheld the authority of a public high school principal to exclude from a student-edited school newspaper stories dealing with pregnancy and with the impact of divorce on students; in Turner v. Safley (1987) the Court upheld a prison regulation generally prohibiting correspondence between inmates at different institutions; and in Thornburgh v. Abbott (1989) the Court upheld a Federal Bureau of Prisons regulation authorizing wardens to prevent prisoners from receiving any publication found to be detrimental "to the security, good order or discipline of the institution." These decisions are in sharp contrast to earlier decisions that granted considerable protection to the freedom of speech even in such restricted environments. It should be noted that the Court's recent inclination to grant broad deference to administrative authority is evident not only in its restricted environment decisions but also in decisions dealing with public forums and with the speech of public employees.

Although not involving the Supreme Court, there was extensive debate and activity with respect to several other free speech issues between 1985 and 1989. First, there has been considerable controversy concerning the law of libel and the first amendment. In new york times v. sullivan (1964) the Court held that in order to prevent the chilling of "uninhibited, robust and wide-open" debate, public officials could not recover for libel without proof that the libelous statements were false and that they were published with a knowing or reckless disregard of the truth. In recent years, critics have maintained that New York Times not only has prevented injured plaintiffs from obtaining judicial correction of published falsehoods but also has produced excessive damage awards against publishers. These critics argue that New York Times has thus effectively sacrificed legitimate dignitary interests of the victims of libel without protecting the "uninhibited, robust, and wide-open" debate the rule was designed to promote. Such criticism has provoked a wide range of proposals at both the state and national levels for either judicial or legislative reform. The most common and most intriguing of these proposals calls for the recognition of a civil action for a declaration of falsity, which would require no showing of fault on the part of the publisher but would authorize no award of damages to the plaintiff.

A second area that has generated increased attention in recent years concerns the advent and expansion of cable television. regulatory agencies and state and federal courts have confronted a broad range of issues arising out of the cable revolution, including the regulation of sexually explicit programming, the applicability of political "fairness" principles, the constitutionality of mandatory access and "must carry" rules, the regulation of subscription rates and franchise fees, and the constitutionality of government restrictions on the number of cable systems. Most fundamentally, the expansion of cable television may ultimately undermine the "scarcity" rationale for government regulation of radio and television broadcasting.

Perhaps the most interesting and most controversial development in recent years relating to freedom of speech concerns the issues of obscenity and pornography. Sixteen years after the 1970 Report of the Commission on Obscenity and Pornography, which found "no evidence that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior," a new government commission, the Attorney General's Commission on Pornography, concluded that there is indeed a causal relationship between exposure to sexually violent material and aggressive behavior toward women. This conclusion, which stirred immediate controversy among social scientists, led the 1986 commission to recommend additional legislation at both the state and federal levels and more aggressive enforcement of existing antiobscenity laws.

In a related development, many feminists in recent years have actively supported a more extensive regulation of pornography. Distinguishing "obscenity," which offends conventional standards of morality, from "pornography," which subordinates women, such feminists as Catharine MacKinnon and Andrea Dworkin have proposed legislation that would restrict the sale, exhibition, and distribution of pornography, which they define as "'the sexually explicit subordination of women, graphically depicted, in which women are presented dehumanized as sexual objects, as sexual objects who enjoy pain, humiliation or rape, as sexual objects tied up, or cut up or mutilated or physically hurt, or as whores by nature."

This type of legislation poses a profound challenge to free speech. Opponents maintain that these laws constitute censorship in its worst form and that they are nothing less than blatant attempts to suppress specific points of view because they offend some citizens. Supporters of such legislation maintain that pornography is of only low First Amendment value, that it causes serious harm by shaping attitudes and behaviors of violence and discrimination toward women, and that it is futile to expect "counter-speech" to be an appropriate and sufficient response to such material. Although the courts that have considered the constitutionality of this kind of legislation have thus far held it incompatible with freedom of speech, the pornography issue will no doubt continue to generate constructive debate about the occasionally competing values of equality, dignity, and freedom of speech for some time to come.

Geoffrey R. Stone

(see also: Balancing Test; Child Pornography; Dial-a-Porn; Feminist Theory; Flag Desecration; Pornography and Feminism.)


Bollinger, Lee C. 1986 The Tolerant Society: Freedom of Speech and Extremist Speech in America. Oxford: Clarendon Press.

Kalven, Harry, Jr. 1988 A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row.

Stone, Geoffrey R. et al. 1986 Constitutional Law, Chap. 7. Boston: Little, Brown.

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Freedom of Speech (Update 1)

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