The Bill of Rights in Modern America: Revised and Expanded

3. The First Amendment and the Freedom to Differ

3 The First Amendment and the Freedom to Differ   The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The incorporation doctrine—by which the Bill of Rights applies to the states through the Fourteenth Amendment —makes the amendment effective against state and local governments as well. And like all constitutional limits, it applies not just to the government itself but to any state actor—that is, to anyone who is acting in an official capacity on behalf of a government entity. Given that breadth of application, can such an all-encompassing and apparently absolute prohibition mean what it says? May state actors really take no action that in any way abridges the right to speak, or, more broadly, to express oneself? Think about all the ways in which public officials suppress speech or penalize people for what they say or when and where they say it. If the text of the First Amendment is taken literally, then a public elementary school teacher cannot tell her students to sit quietly and listen, a judge cannot demand order (read: quiet) in her courtroom, the police cannot remove a traffic-disrupting protester from the middle of a busy street, and a state university professor cannot give a student a C rather than an A for writing a poor term paper. On this reading of the amendment, false and deceptive advertising , perjury, and fraud would be immune from punishment because all impose criminal liability on a speaker because of what she says. In short, the First Amendment—even more obviously than much of the rest of the Constitution—requires interpretation and line-drawing. It should come as no surprise that the history of the Supreme Court’s free speech jurisprudence reflects efforts first to define the core of the amendment and then to draw ever finer distinctions around the edges. The core of modern First Amendment jurisprudence is what might be called the anti-censorship principle: The government may not censor speech just because it disagrees with it or disapproves of it. Even if a majority of citizens dislike the speech or the ideas it communicates, the government may not censor it for that reason. As Justice Robert Jackson wrote eloquently in 1943, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”1 Somewhat surprisingly, it took the Supreme Court until the middle of the twentieth century to reach agreement on this anti-censorship principle, and somewhat longer to extend it beyond political speech. And there are still some doctrinal areas in which the Court seems unwilling to read the First Amendment as a protection against government censorship. Political Speech Governments, including our own, have always tried to suppress dissent and disagreement. The Federalists passed the federal Alien and Sedition Acts of 1798 to silence political dissent and opposition by the Anti-Federalists. During the first half of the nineteenth century, many southern states enacted laws prohibiting speech that criticized slavery or advocated its abolition. The second half of the nineteenth century saw restrictions on the speech of labor unions and social reformers. And each time the United States has engaged in war, the government has tried to limit speech critical of the war or of the government, on the theory that such speech harms the war effort. Until the early twentieth century, all of these restrictions met with little or no judicial resistance. As late as 1907, the Supreme Court held that the purpose of the First Amendment was “to prevent all previous restraints on publications,” and not to “prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”2 The modern history of free speech jurisprudence begins with the momentous events of 1917. In the space of a few months, the United States entered World War I, Congress passed the Espionage Act prohibiting interference with the draft, Lenin established a Bolshevist dictatorship in Russia, and Russia made peace with Germany. American protests against the war, rooted primarily in sympathy toward the Bolsheviks, escalated—and so did American fear of communism, culminating in the postwar Red Scare. The resulting conflict between protest and suppression of dissent generated four influential Supreme Court cases in 1919. 50 | MODERN RIGHTS IN CONTROVERSY [3.145...