FREEDOM OF EXPRESSION: THE FIRST AMENDMENT
in the Bill of Rights, is one of our most basic constitutional
rights. Yet the precise nature of what is protected
by the First Amendment is often misunderstood.
extended to a generous sense of "expression"
-- verbal, non-verbal, visual, symbolic.
in American law, including obscenity, defamation, breach
of the peace, incitement to crime, fighting words,"
and sedition.
freedom of expression (e.g., J.S. Mill and Joel Feinberg)
is helpful in explaining the rationale for these exceptions.
The First Amendment to the U.S. Constitution
This image is the joint resolution of Congress in 1789 proposing amendments to the Constitution, now known as the Bill of Rights. The First Amendment to the United States Constitution says that Congress shall make no law . . . abridging
the freedom of "speech." Close attention to these few important words reveals several issues demanding interpretation and clarification.
Note that the document uses the word "speech,"
although a long succession of court decisions has expanded
this concept far beyond ordinary verbal communication.
Protected expression now includes such non-verbal expression
as wearing a symbol on one's clothing, dance movements,
and a silent candlelight vigil.
Consider how the concept of "speech" has been
broadened and what "speech" is for these
purposes.
protected?
Also note that the language is a prohibition on Congressional
action. The First Amendment only protects speech against
which Congress has passed a law abridging it. Suppressions
of speech are not violations of the First Amendment
unless the State does the suppressing. The State could
be either the Federal government or (now) a State government.
Many mistakenly thank that any suppression of speech,
including suppression by private citizens, violates
the First Amendment. What if a record company decides
to drop a certain recording artist from its roster
or a U.S. Senator makes a speech in which he says he
personally wishes that Hollywood would stop making
X-rated moves? Such a private action might be objectionable
for ethical or social reasons, but it does not present
a constitutional issue.
Why it is that one might still object to these private
suppressions of speech, even when the government is
not involved.
are at stake?
freedom of expression by all of their fellow citizens
and not attempt to suppress that speech as private
citizens?
Would the First Amendment be improved if it prohibited
abridgement of speech by anyone, not just Congress?
Should every citizen have a right to say anything at
all with no suppression by fellow citizens? Are there
times when private citizens not only could but should
suppress the speech of their fellow citizens?
Controversies about speech protected by the First Amendment
seem to arise because the speech at issue is unpopular
or controversial or highly offensive for various reasons.
Yet a hallmark of the Bill of Rights is protection
of minority views.
If the First Amendment only protected popular speech,
supported by the majority of citizens, then the constitutional
protection would not be needed. Instead we could simply
have a referendum with the majority deciding which
speech should be allowed. In a sense, of course, Congressional
representation constitutes a majority referendum. If
the majority of citizens is presumed to speak through
Congress, and if a majority of Congress votes to ban
certain speech, then the First Amendment intervenes
to prohibit that suppression by the majority.
do we mean by harm?
What speech is protected?
Speech includes much more than verbal oration and need
not include any words. The expression of artists, including
the use of symbolism, is protected under the First
Amendment.
The wearing of armbands with a peace symbol was protected
during the Vietnam War as symbolic speech protected
under the First Amendment.
Yet the burning of a draft card was not considered protected
speech but an illegal behavior violating the Selective
Service rules A continuing issue is the precise nature
of artistic and symbolic speech that is protected versus
behavior that is not.
and symbolic speech that is protected and illegal behavior that is not?
behaviors be protected as symbolic speech?
for example, the symbolism in a work of art?
Exceptions to Freedom of Expression
Many exceptions to the First Amendment protections have
been recognized by the courts, although not without
controversy.
Courts sometimes justify these exceptions as speech
which causes substantial harm to the public, or speech
which the Founding Fathers could not have intended
to protect, or traditions that have long been part
of the common law tradition from England that was the
basis of our American legal system.
Rather than merely reciting the list of established
exceptions, the rationale for making exceptions to
free speech protection under the Constitution.
The value of free speech sometimes clashes with other
values in our culture.
or anti-Semitism which promotes values we despise as a country?
decay of society's traditional values?
to another person?
Exceptions established by the courts to the First Amendment
protections include the following:
(1) Defamation: Defamation consists of a publication
of a factual statement which is false and which harms
the reputation of another person. Our right to freedom
of expression is restricted when our expressions (whether
a spoken slander or written libel) cause harm to the
reputation of another person. The courts recognize
that words can hurt us, for example, by harming our
ability to earn a living (economic harm).
This exception to freedom of expression can be difficult
to apply in practice. Defamation requires an allegation
of a fact which is in fact false. In contrast, the
expression of an opinion is not considered defamation.
Imagine an artistic exhibit claiming that certain named
persons, ordinary citizens were child molesters or
had a secret Nazi past or earned extra income as prostitutes.
If these are viewed strictly as factual claims which
are false, they would seem to constitute defamation.
But what if the artist said she was expressing a symbolic
commentary or creating a metaphor about the secret
lives of ordinary people, not making an allegation
of fact?
How should we draw the line in an artistic work between
a factual statement and a symbolic or metaphorical
opinion?
Some years ago, on an eastern college campus, flyers
were distributed with the names of male students randomly
drawn from the student directory, with the label that
they were potential rapists. Assume, for the sake of
argument, that this is guerrilla theater art.
Were these flyers statements?
Were they false statements?
Were the reputations of the male students harmed?
Should these expressions be protected by the First Amendment
if the expressions were made by artists?
Should we allow such statements, even if they are defam-atory,
if they are made by artists?
How then should we decide who counts as an artist for
this exception to the prohibition on defamation?
(2) Causing panic: The classic example of speech which
is not protected by the First Amendment, because it
causes panic, is falsely shouting "fire"
in a crowded theater. This is narrowly limited to
situations in which a reasonable person would know
that it was very likely that his or her speech would
really cause harm to others.
We can imagine works of art which might cause real panic
among the audience, perhaps a contemporary version
of Orson Welles' War of the Worlds, which caused considerable
panic when it first aired on the radio.
What if a guerilla theater group staged a fake emergency
which a reasonable person would expect would almost
certainly cause real panic among the audience?
This might be a theater production during which the
director plans to yell "fire" and cause a
stampede by the audience to the exit doors.
Should this exercise of freedom of expression by artists
be protected by the First Amendment?
Could we argue that the panic resulted simply because
naive audience members were unsophisticated about how
to approach art and that freedom of expression should
prevail?
Perhaps (on might argue) they do not know how to assume
an "aesthetic attitude" or appropriately
"distance" themselves from a work of art.
(3) Fighting words: The U.S. Supreme Court held that
the First Amendment does not protect "fighting
words -- those which by their very utterance inflict
injury or tend to incite an immediate breach of the
peace." This famous exception is much discussed
in recent decades, but rarely the basis for a decision
upholding an abridgement of free speech.
This exception warrants scrutiny. Note that the harm
involved is physical harm caused by someone else who
was provoked by the speaker whose speech is being suppressed.
The fact that someone else flies into a rage and causes
physical harm results in justifying suppression of
speech by another person! It is worth considering why
this exception has declined in acceptance.
Are we now more skeptical of claims that people cannot
control their actions?
Do we demand the exercise of more responsibility by
persons regardless of wha inflammatory words they might
hear?
Are we more suspicious of claims of causal necessity
in such situations?
Note the irony that we are also witnessing an increase
in the so-called "abuse excuse" in which
we seem more likely to excuse someone's behavior because
of something someone else did to them. Is this inconsistent
with the decline in the fighting words exception?
(4) Incitement to crime: It is a crime to incite someone
else to commit a crime, and such speech is not protected
by the First Amendment.
If a budding rap group proposes to perform a work which
includes the exhortation to "kill whitie"
or "kill the cops" or "rape the babe,"
could that be incitement to a crime?
Such records have been sold by commercial organizations,
of course, yet there are no reported arrests of those
artists or record companies for incitement to a crime?
Should such rap lyrics be considered incitement to crime
or is the causal relationship to any actual murders
or rapes to tenuous?
A novel criminal defense has arisen, claiming that such
music somehow
compelled the defendant to commit the crime. In Austin,
Texas, Ronald Ray Howard, charged with the capital
murder of a state trooper, claimed in his defense that
". . . he learned to hate police officers from
years of listening to rap music with violent anti-police
themes. . . . "
Is this an acceptable defense?
Why or why not? (The jury convicted him, reaching a
verdict in 35 minutes.)
The recent attention to violence on television is largely
a debate overwhether such televised violence is a cause
of actual violence, such that persons who exhibit violent
shows should be held responsible. If society wants
to discourage violence on television, is it because
such depicted violence is clearly a cause of actual
violence? Are there other reasons why society might
still feel justified in restricting this depiction?
It is easy to imagine highly unpalatable projects which
arguably could be considered an incitement to crime.
What if a fundamentalist religious extremist group
publishes a guidebook in this country on how to commit
terrorism in the United States, with detailed instructions
on making bombs, maps showing the homes and offices
of government officials, and so forth. Instructions
alone would not seem to constitute incitement, so assume
that the book will also include a statement from the
religion's most revered leader urging that the guaranteed
path to eternal bliss is following the instructions
in the book.
Given the presumed audience, might this be incitement
to crime?
In considering these issues, students should come to
understand thecomplexities of what it means to incite
or cause a crime and the factors which lead us to hold
some people responsible but not others. Students should
also learn that the values society promotes include
educational and moral values, as well as legal protections.
(5) Sedition: Although not without controversy, the
U.S. Supreme Court has upheld statutes which prohibit
the advocacy of unlawful conduct against the government
or the violent overthrow of the government. As with
prohibitions discussed earlier, the expressions in
question are assessed according to the circumstances.
Academic discussion of the theories of, say, Karl Marx
presumably would not be prohibited under such a test,
especially in this post-Soviet era.
The theoretical consideration and even endorsement of
these views could not remotely be considered to be
reasonable expectations of the actual overthrow of
the government. But it is possible that an artist might
develop a project, perhaps guerrilla theater or an
exhibit, that urged the destruction of the United States
(the "Great Satan") by extremist religious
groups. The likelihood of success by the latter group
would seem as improbable as the likelihood of success
by contemporary Marxists.
If the discussion of Marx should not be prohibited as
sedition, should we be consistent and allow discussion
by the religious extremist?
Are there any grounds upon which we could distinguish
these situations?
(6) Obscenity: The Supreme Court established a three-pronged
test for obscenity prohibitions which would not violate the First Amendment:
(a) whether the average person, applying contemporary
community standards, would find that the work, taken
as a whole, appeals to the prurient interest.
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined
by the applicable state law.
(c) whether the work, taken as a whole, lacks serious
literary,
artistic, political or scientific value.
Although much debated, this standard remains the law
of the land, and elements of this language have been
included in both the authorizing legislation for the
National Endowment for the Arts and the new Communications
Decency Act prohibiting "obscenity" and "indecency"
on the Internet.
One controversy over this provision is whether obscenity
causes real harm sufficient to justify suppression
of free speech.
Does viewing obscenity make it more likely that a man
will later commit rape, or other acts of violence against
women, obviously real harm to another person?
Does reading about war make it more likely that someone
will start a war?
Even if there is some evidence of such causal relationships,
however tenuous or strong, is it sufficient to justify
this exception to free speech?
Alternatively, could the prohibition on obscenity be
a reflection of moral values and societal standards
which should more properly be handled in the private
sector through moral education, not government censorship?
Another problem area is determining what counts as "obscenity".
The court tried to fashion a standard which could be
adapted to different communities, so that what counts
as obscenity in rural Mississippi might not count as
obscenity in Atlanta or New York City.
Is this fair?
Do the people in those areas themselves agree on community
standards?
What is the "community" for art that is displayed
on-line on the Internet?
Another fruitful area for exploration is the exception
for "serious literary, artistic, political or
scientific value."
Who decides what counts as "serious"?
If some people consider Penthouse or the National Enquirer
to be serious literature, is it elitist to deny them
this exception from censorship as "obscenity"?
Given the controversies in contemporary art (found
objects, performance art, and so forth), what counts
as artistic value?
Has the Court solved the problem of defining "obscenity"
or only made it more complicated?
In reviewing these classic exceptions to free speech,
it does seem that real harm can be caused by at least
some of these instances of speech. Following J.S. Mill,
we could limit our restrictions to real harm -- physical
or economic harm, not psychic or hypothetical harm.
If real harm is present, then we should next address
the causal relationship necessary to hold someone responsible
for the harm caused by the expression. This is not
easy, of course, but we do have models for determining
when a causal relationship is sufficiently close ("proximate")
to hold someone responsible. We also have experience
in determining whether to hold people responsible based
on whether a reasonable person knew or should have
known the consequences of their actions.
In addition to these established exceptions to freedom
of expression, there are examples of speech which would
not cause real harm, in Mill's sense, but which some
believe justify suppression of speech.
(7) Offense: Although rejected by American courts, some
theorists argue that speech which is merely offensive
to others should be another exception to the First
Amendment. In a court challenge to an National Endowment
for the Arts (NEA) funded exhibit, David Wojnarowicz:
Tongues of Flame, David Fordyce and Yvonne Knickerbocke
claimed that the exhibit caused them to "[suffer]
a spiritual injury and that the exhibition caused offense
to their religious sensibilities." The court rejected
the claim, especially as "plaintiffs do not even
allege that they have either seen the exhibition or
studied the catalogue . . . [and thus] have failed
to show that they have endured any special burdens
that justify their standing to sue as citizens."
Id. But the court left open the possibility that the
plaintiffs might have a claim if "they had to
confront the exhibition daily, . . . the exhibition
was visible in the course of their normal routine,
or . . . their usual driving or walking routes took
them through or past the exhibition." But the
complexities of this issue are highlighted when other
examples are considered.
What if an exhibit celebrated the practice of some religions
of female genitalia mutilation?
Should such exhibits be accorded the full protection
of the First Amendment despite the horror which most
feel about such "religious" practices?
Are there some expressions which are so extremely offensive
to many in the population that they should be banned
by the government, even though they cause no real harm
to anyway?
By what criteria should this be decided?
(8) Establishment of Religion: Some speech is restricted
because it constitutes the establishment of religion,
which is itself prohibited by the First Amendment
to the U.S. Constitution. ("Congress shall make
no law respecting an establishment of religion.")
Prayer led by a principal in a public school would
violate the establishment clause. Thus, a school policy
prohibiting the principal from leading such prayers
would not violate the right of free speech. This is
controversial to some, who believe that banning prayer
in the public schools limits an equally important right,
freedom of religion. This tension illustrates the not-uncommon
challenge of balancing competing and perhaps even irreconcilable
values in the Constitution.
In challenging the Wojnarowicz exhibit, plaintiffs argued
that the exhibit was critical of their Christian beliefs
and thus violated the establishment clause. The plaintiffs
said that they view the public display of the exhibition
as an affront to their liberty to practice religion
free from governmental entanglement and politically
divisive governmental intrusion into the affairs of
religion.
But the court said "that merely asserting spiritual
injury under the establishment clause is insufficient
to support standing to sue as citizen." Of interest
here is distinguishing between spiritual injury, physical
injury or harm, and economic harm.
Why are the latter two sufficient to suppress speech,
but not the former?
What criteria seem to be involved in making such a distinction?
A future plaintiff might be able to show sufficient
and direct suffering, but another consideration would
rule out such challenges to NEA grants.
To violate the Establishment clause, "Congress
. . . [must have decided] how the . . . funds were
to be spent, and the executive branch, in administering
the statute, was merely carrying out Congress' scheme."
At NEA, in contrast, Congress does not "[participate]
in the decision to grant or deny applications for federal
funding, . . . . [nor does] NEA merely [administer]
a congressional directive." This means that if
NEA denied a grant based on possible violation of the
Establishment Clause, it might violate the free speech
clause of the First Amendment. Note that this reasoning
seems to leave open the possibility of a grant by NEA
to promote appreciation for Creationism.
Philosophical Consideration of Freedom of Expression
The English philosopher John Stuart Mill (1806-1873)
articulated what might be called the "liberal"
or (better) the "libertarian" position on
freedom of expression in his 1859 book On Liberty.
His test for appropriate government interference with
human liberties is his well-known "harm"
principle.
. . . the only purpose for which power can be rightfully
exercised over any member of a civilized community,
against his will, is to prevent harm to others. His
own good, either physical or moral, is not a sufficient
warrant. Mill
This basic principle provides an excellent rule-of-thumb
for approaching issues of freedom of expression. Most
of the classic exceptions to freedom of expression,
as established by the U.S. Supreme Court, are consistent
with this harm principle. The major exception is the
legal prohibition on obscenity, to which Mill would
object on the grounds that it does not cause real harm.
Mill appeals to several principles in defending his
position on freedom of expression.
First, how would we know which opinions to suppress
as untrue? We are not, after all, infallible.
Second, many opinions include at least some truth. Only
through vigorous debate of conflicting opinions does
the truth eventually come out.
Third, even if the opinions selected by the government
as true were indeed true, people would not necessarily
believe it, but would consider it prejudice.
Fourth, the government-approved opinions would not be
understood and appreciated by the public, as the views
would not have been developed "from reason or
personal experience."
Critics of Mill's approach to freedom of expression
generally accept the harm principle as a justification
for suppressing speech, but claim that additional reasons
are sufficient to suppress speech. Patrick Devlin and
Edmund Pincoffs, for example, believe that the government
should enforce morality and thus should legislate morality,
suppressing speech to further that goal. Others criticize
Mill's assumption that a successful democracy depends
upon freedom of expression for a healthy debate about
the issues.
Discussion questions
A popular public art project in recent years has been
the placement of poetry posters on public transportation
for people to read while commuting. Imagine a project
to place these posters in busses and subways with the
content of the Wojnarowicz exhibit that presumably
would be offensive to some religious sensibilities.
What arguments would support exhibition of the posters
on the bus? Should a government agency provide funding
for the poster? Why or why not?
If a consumer reporter said falsely that a restaurant
served her food with cockroaches in it, the restaurant
could maintain a lawsuit for defamation. if a food
critic wrote a review that, in the opinion of the critic,
the restaurant's food tasted dreadful, the restaurant
could not maintain a law suit for defamation. Yet,
if the critic is a respected food critic in the city,
that opinion could cause as much (if not more) economic
harm to the restaurant than the erroneous news report
of the consumer reporter. Does the distinction between
"falsehood" and "opinion" result
in fair results for the restaurant? Is the rationale
for allowing defamation lawsuits as a restriction on
speech justifiable?
