Some disappointing free speech decisions have issued from the Roberts Court in the past two years. But in order to understand just how disappointing they are, it is necessary to flash back briefly over what the Supreme Court did to free speech doctrine during the past half century. Chaplinsky v. New Hampshire (1942) is the place to start—it allows us to appreciate just how far we have departed from First Amendment sanity.
On a busy Saturday afternoon in late November 1941 on a public street in Rochester, New Hampshire, Walter Chaplinsky, a Jehovah's Witness, was preaching and distributing Witness literature. Several citizens complained to City Marshal (i.e., Police Chief) James Bowering that Chaplinsky was denouncing all organized religion as a "racket." Bowering told the complainers that Chaplinsky had not broken any law, but he also warned Chaplinsky that his hearers were becoming "restless" and then went on his way. Soon, however, someone caught up with the chief and told him a riot had broken out; as he rushed back toward the scene he met Chaplinsky, being escorted away by a foot patrolman who had been directing traffic nearby. Chaplinsky had certainly been heckled (Jehovah's Witnesses were unpopular at that time for refusing to salute the flag), and he may have been manhandled. The officer who took him in charge certainly did so to clear the obstruction to traffic caused by the angry crowd, and probably also for Chaplinsky's physical safety.
Bowering reminded Chaplinsky that he had been warned not to start a riot. At that point, Chaplinsky called Bowering "a damned racketeer" and "a damned fascist," opining further that "the whole government of Rochester are fascists or agents of fascists." By the time the case worked its way through the courts of New Hampshire to the U.S. Supreme Court (where it was argued in February 1942) the war against Nazi Germany was on. The context is important: today grounded teenagers mutter "fascist" at their parents. In 1941 the word had quite a different valance of insult.
Chaplinsky was convicted of violating a state statute providing that "No person shall address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public space, nor call him by any offensive or derisive name" (emphasis added).
In considering the constitutionality of the law under the speech clause of the First Amendment (operating against the state through the due process clause of the 14th Amendment), the justices had the benefit of an authoritative and narrowing construction of the statutory language by the Supreme Court of New Hampshire. The only words forbidden, that Court had held, were "such as have a direct tendency to cause acts of violence." Furthermore, the "word ‘offensive' is not to be defined in terms of what a particular addressee thinks.... The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight." Thus clarified, a unanimous U.S. Supreme Court upheld the New Hampshire law, and Justice Frank Murphy's brief opinion contained what would become one of the most famous passages in American constitutional law:
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
As a summary of the American law of free speech as it had evolved up to 1942, Murphy's formulation was spot on. As a guide to what the U.S. Supreme Court would do in the second half of the 20th century, it was almost worthless.
Fifty Years of Free-Speech Radicalism
Of course, the court's journey into vaulting free-speech libertarianism did not happen all at once. As late as 1952, in Beauharnais v. Illinois, a bare majority, speaking through Felix Frankfurter, could uphold a state law criminalizing the exhibition in any public space of any publication which "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which...is productive of breach of the peace or riots." But by the late 1970s, when Skokie, Illinois, struggled legally to keep Nazi paraders off its streets, the Seventh Circuit Court of Appeals brushed off Beauharnais as no longer good law and the Supreme Court left the Circuit's opinion undisturbed. Beauharnais is still in all the casebooks, but it is now taught (to the extent it is taught at all) as a dead letter.
Nineteen fifty-seven saw the new deal for sexually explicit speech rolled out by William Brennan in Roth v. U.S.: does the dominant theme of the material, taken as a whole, appeal to the "prurient interest" of the average reader, exceed "contemporary community standards," and is it utterly without "redeeming social importance"? Suffice that it proved unworkable and, even after a cleanup by Chief Justice Warren Burger in 1973 (Miller v. California), it remains wickedly cumbersome. There are few prosecutions (because they are so difficult), and Justice Brennan himself ultimately abandoned his handiwork, opining that he would protect all sexual expression as free speech, and uphold only laws aimed at protecting minors or protecting the public against intrusive sexually explicit advertising. Brennan also lowered the boom on libel, raising the bar for recovery to the almost impossibly high "actual malice" (New York Times Co. v. Sullivan) in 1964.
But that was only a preview of the downward spiral of the 1970s. In 1971, profanity disappeared as an unprotected category in Cohen v. California. The unlikely executioner was John Marshall Harlan who, in an unintentional descent into postmodernism, wrote of the "Fuck the Draft" message on the back of Paul Cohen's famous warm-up jacket that "one man's vulgarity is another's lyric." (The phrase was actually supplied by one of Justice Harlan's clerks, who was following his boss's guidance to make the opinion "sound Elizabethan.") The following year saw Brennan again on the attack in Gooding v. Wilson where he came close to finishing off fighting words as an unprotected category, employing a recently created judicial doctrine called "overbreadth." This doctrine, unique to the free speech area, looks beyond the facts of the case at hand (did what this defendant said constitute fighting words?), to ask whether it might be possible for the statute to be applied to some notional, future defendant whose words might not satisfy the constitutional standard. If such can be imagined, the statute is said to have a "chilling effect" on free speech, and cannot be applied to anyone no matter what he has said.
Nor did the late Burger and Rehnquist Courts of the 1980s and 1990s do much better. One bright spot was Justice Byron White's majority opinion in 1982, in Ferber v. New York, which allows prosecutions for the production of and trafficking in child pornography to go forward without the material having been shown to be "obscene" under the incomprehensible Roth/Miller test. Because of this, law enforcement efforts in the area of child pornography are the only currently effective governmental action containing the "adult entertainment" industry. But set against this in the 1990s was the refusal of the Court to allow a less labored standard than obscenity ("indecency") to be used to protect minors from pornography on the internet after Congress so provided in the Communications Decency Act of 1996. Stepping nimbly around the fact that the Court had for decades allowed the "indecency" rubric to be employed by the government in the special area of broadcasting, Justice John Paul Stevens, in Reno v. American Civil Liberties Union in 1997, concluded that indecency "lacks the precision that the First Amendment requires when a statute regulates the content of speech."
There was much more (e.g., constitutional protection for flag burning), but enough is enough. The question now is whether, in the era of the more conservative Roberts Court, we are going to see any moderation of the free speech radicalism of the past fifty years.
In the Roberts Court's most famous free speech case, of course, the majority got it exactly right. The restriction on political issue advertising struck down in 2010 in Citizens United involved core political speech—speech directed to the outcome of elections. In his famous "Report" to the Virginia legislature in 1800, James Madison explained that the English conception of free speech (limited to prohibiting prior restraint of publication) was inadequate in a republican form of government, precisely because "freedom in canvassing the merits and measures of public men" was crucial to the conduct of elections under a constitution of popular sovereignty—up to and including toleration of the inevitable distortions and untruths ("animadversions") that are part of the process. Government management of electoral communications (or of how they are financed) is intolerable, and it remains remarkable that so many people (such as Justice Stevens in Reno) ready to defend the First Amendment right of persons to access internet pornography, remain blinded to this.
In recent decisions dealing with what can be called, following Frank Murphy, "low-value speech," however, the Roberts Court has disappointed. There are reasons for hope, but they remain slight.
The first of the troubling cases, United States v. Stevens, decided in 2010, dealt with a federal statute criminalizing any auditory or visual depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," provided that the act itself was illegal in the jurisdiction in which the display took place. Aimed at "crush videos" (a genre that includes women in stiletto heels impaling living kittens), the statute invited the Court to create a new category of unprotected utterance, defined simply by the acts portrayed. As prominent constitutional law professor Kathleen Sullivan put it: "Is the Chaplinsky list open to new entrants?" After decades of chipping away at Chaplinsky, here was a chance to amplify it. The Court's answer, by a resounding 8-1, was "no." The opinion by Chief Justice John Roberts for the eight relied heavily on that precious creation of the Warren Court, the "overbreadth" doctrine. Noting that sport hunting was illegal in the District of Columbia, the Chief wondered whether hunting videos (for which there is a large national demand) might be an offense under the statute in D.C. After all, hunting videos did not fall within any of the statutory exceptions to coverage since they lacked any "serious religious, political, scientific, educational, journalistic, historical or artistic value." Furthermore, some states forbade the hunting of certain game animals, which other states allowed, and this might create "a bewildering maze of regulation from at least 56 separate jurisdictions."
Justice Samuel Alito (the hero of this story) was the lone dissenter. He began with the embarrassingly obvious point that Robert Stevens's video, the one actually at issue in the case, portrayed dog fighting. Why, Alito asked, strike the entire law as facially unconstitutional when it would have been so easy to treat the case as an "as-applied" matter holding that the words of the statute simply did not cover what Stevens had done. This would have left all the hypotheticals in the closet for another day, another case, with another set of facts. Why go right for the "strong medicine" of the overbreadth doctrine? Besides, Alito went on, a proper application of the overbreadth doctrine requires "that substantial overbreadth exist," not just a richly imagined tableau of possible problems. Quoting from precedent, Alito wrote that "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds" (emphasis Alito's). As to Roberts's labored hunting video example, the dissent points out that "hunting is legal in all 50 States" and that "the vast majority of hunting depictions indisputably falls outside" the statute's reach. Why had the majority strained so hard to produce a tortured libertarian result?
The second, and best known, of the troubling cases, decided last year, was Snyder v. Phelps, involving the Westboro Baptists. Convinced that God was punishing America for its toleration of homosexuality by (among other things) killing its soldiers, this tiny, cranky congregation had for 20 years been picketing the funerals of American servicemen. In this case, Marine Lance Corporal Matthew Snyder died in the line of duty in Iraq, and his funeral was held in a church in his hometown of Westminster, Maryland. Fred Phelps, and his handful of followers, were there. The protestors obeyed all local ordinances; they carried their signs ("God Hates Fags" and "Thank God for Dead Soldiers") and chanted on a small plot of public land 1,000 feet from the church. The funeral procession passed within 200 to 300 feet of the picket site, and Matthew Snyder's father later filed suit against the Westboro Baptists alleging various torts under Maryland state law, the most important of which was "intentional infliction of emotional distress." At trial, a jury found for Snyder on the emotional distress claim, but the Fourth Circuit reversed, holding that the Westboro Baptists' speech was fully protected by the First Amendment. The Supreme Court then affirmed the Circuit 8-1, again with the Chief writing.
Roberts's opinion relied heavily on a 1988 precedent, Hustler Magazine v. Falwell, in which a unanimous Court had extended First Amendment protection to Larry Flint's jape that Jerry Falwell's first sexual experience had been with his mother in an outhouse. The new Chief read former Chief Justice William Rehnquist's opinion in that case barring any recovery for the tort of "infliction of emotional distress" unless the offending words were of a purely "private" nature (making no reference at all to matters of public concern). Without reconsidering the soundness of his former boss's conclusion (Roberts had once clerked for Rehnquist), Roberts found it decisive that the Westboro Baptists' words spoke to matters of public concern (American public policy respecting homosexuality). In his view, that immunized them whatever the circumstances of their utterance or the degree of collateral emotional damage they inflicted. And he hammered home the public words/private words distinction by reference to various Warren, Burger, and Rehnquist era decisions; no impulse to reform was detectable.
Only Samuel Alito was willing to take a new look at the question of how the speech clause should be understood to limit recovery for emotional distress. He noted that "most if not all jurisdictions" recognized the tort of intentional infliction of emotional distress, and that the ordinary bar for recovery in such actions is set very, very high—"the distress must be ‘so severe that no reasonable man could be expected to endure it.'" Furthermore, a "plaintiff must also establish that the defendant's conduct was ‘so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.'" To drive the point home, Alito argued that the Westboro Baptists' lawyers had "abandoned any effort to show that those tough standards were not satisfied" in their case; they relied wholly on the First Amendment defense.
In rejecting the free speech defense, Justice Alito unhesitatingly reached back to that part of Chaplinsky that had recognized that words may "‘by their very utterance inflict injury,' and that the First Amendment does not shield utterances that form ‘no essential part of any expression of ideas...clearly outweighed by the social interest in order and morality.'" Turning to Roberts's distinction between public and private speech, Alito argued that the protesters had engaged in both, with the private speech attacking Matthew Snyder, private person, as a Roman Catholic, implicitly as a homosexual, and as a member of the debauched military of a debauched country. In fact, the private attacks on Matthew were precisely intended to give media visibility to their public attacks on America. In Alito's view, Roberts had held that because the attack on Matthew had not resulted from a "private grudge" but only from a desire for increased publicity, they were entitled to protection. Alito asked why this mattered? His was a lone dissent, but it pointed in a new direction. In a short concurrence, Justice Stephen Breyer, clearly uneasy with the Roberts opinion he was joining, cautioned that it should not be overread. In a nod toward the dissent, he opined that he did not read the Court's opinion as implying "that the State is always powerless to provide private individuals with necessary protection."
The third troubling case, Brown v. Entertainment Merchants Assn., also decided in the summer of last year, involved a California statute that regulated (responsible adult permission required) the sale to minors (under age 18) of video games that invite the player to engage in "killing, maiming, dismembering, or sexually assaulting an image of a human being." This time the conservative Justice Antonin Scalia wrote for the Court, declaring the law unconstitutional on its face; but this majority opinion got only five votes. Violent entertainment for children, Scalia announced, was as American as cherry pie, and always had been. From Hansel and Gretel (think oven!), to the Brothers Grimm, to the Leatherstocking Tales, generations of American young people had thrilled to blood and dismemberment. Nor, Scalia argued, was the virtual violence of the games, where the participants are kinetically involved in the action, any different from the portrayal of violence in imaginative literature.
Again, Alito was not persuaded. He concurred only in the Court's judgment, and only on the narrow ground that the California law was unconstitutional because it was worded with insufficient precision. He then launched a thoughtful assault on Scalia's reasoning. New technologies, he argued, may present new kinds of dangers and it would be foolish to simple-mindedly extend the First Amendment protections based on old technologies (books) before the possibility of new dangers can be carefully assessed. Although the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform. "For example, a player who wants a...character to swing a baseball bat—either to hit a ball or smash a skull—could bring that about by simulating the motion of actually swinging a bat."
Nor was Alito alone this time; the Chief Justice joined his opinion. And there were two dissents! Justices Clarence Thomas and Breyer, albeit for differing reasons, would have upheld the California law. Thomas, characteristically, offered a pure originalist analysis: "The practices and beliefs of the founding generation establish that ‘the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minor's parents or guardians." Breyer, by contrast, looked to new wisdom rather than old. What was decisive for him was the weight of social scientific evidence (cavalierly brushed aside by Scalia) showing that the violent video games might indeed inflict psychological harm on immature players, increasing the likelihood of antisocial behavior. "Video games [unlike literature] combine physical action with expression." And "California's law imposes no more than a modest restriction on expression." No one is prevented "from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help."
A Ray of Hope
The two 2012 cases that round out our review fit the emerging pattern, although the first of them, FCC v. Fox Television Stations, is not easy to read. The issue here was the so-called "broadcast exception" to the obscenity doctrine (deriving from the Court's 1978 decision in FCC v. Pacifica Foundation), which allowed the Federal Communications Commission to fine broadcast licensees for "indecent" language of content without a cumbersome showing of "obscenity."
For over 30 years, free-speech purists and, of course, the broadcast industry had attacked this doctrine as a First Amendment "anomaly" that reduced broadcasts to free-speech "poor relations" and "orphans." Thus, when, in 2004, the commissioners (after several well-publicized on-air incidents) issued tightened rules for when indecency would be punished, opponents of Pacifica saw a golden opportunity to do it in. Not only had the indecency concept not been extended to the burgeoning new medium of cable TV, but, as noted earlier, when Congress attempted to employ the indecency standard to regulate sexually explicit material on the internet (the Communications Decency Act of 1996), the Court shot down the standard on free-speech grounds (Reno).
At oral argument, however, the attack on Pacifica encountered some stiff head winds. Justice Scalia said "sign me up" for continuing stricter regulations of broadcasting, and Chief Justice Roberts, the only member of the current Court who is also a parent of young children, remarked plaintively: "All we are asking for...is a few channels where...they are not going to hear the S-word, the F-word. They are not going to see nudity." And Justice Alito, advancing what can only be called a tactical defense of the FCC standards, argued that "[b]roadcast TV is living on borrowed time...so why not let this [the Pacifica doctrine] die a natural death?"
The attackers did find some support among the Justices. Ruth Bader Ginsburg signaled readiness to overrule Pacifica; Elena Kagan doubted the consistency with which the Commission enforced its rules ("The way this policy seems to work it's like nobody can use dirty words or nudity except for Steven Spielberg"); and Justice Breyer appeared to agree on the inconsistency point.
In the event, however, the Court bypassed the First Amendment issues entirely, and decided the case for the media plaintiffs on the ground that the Commission had not given licensees adequate notice of the rules changed, and had thereby denied them the due process of law. The effect of this, however, is to leave the stricter rules in place for licensees in the future. Nothing suggests that any of the Justices might be disposed to allow use of the indecency standard in other areas, but at least one effort to advance the limitless free speech agenda was turned back. Only Ginsburg was moved, in a brief concurrence, to state that she would have overruled Pacifica.
The last case, United States v. Alvarez, which came down on the last day of term earlier this year, tested the constitutionality of the Stolen Valor Act, by which Congress criminalized knowingly false claims to have won any medal or decoration for service in the armed forces. The law included exceptions for "satirical, rhetorical, theatrical, literary, ironic or hyperbolic statements"—all of which were protected. But what about the knowing lie? On the one hand, a variety of lies had long been excluded from free speech protection-libel, fraud, lying to a federal investigator. On the other hand, it was argued, these lies involved discrete, easily identifiable harms to individuals or to the government. The harm of a false claim of having won the Congressional Medal of Honor, simply to puff one's importance, involved, at worst, a much more diffuse, or perhaps ephemeral, harm. As libertarian Alex Kozinski, Chief Judge of the Ninth Circuit, commented when the Act was before his Court (where it was rejected),
Phrases such as ‘I'm working late tonight, hunny [sic],' ‘I got stuck in traffic' and ‘I didn't inhale' could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship.
The Supremes followed the Ninth Circuit's lead. Justice Anthony Kennedy, joined by the Chief Justice, and Justices Sonia Sotomayor and Ginsburg, insisted that the statute must be tested against the "strict scrutiny" standard that applied to political and other high value speech of communicative significance. That standard, often referred to as strict in form, fatal in fact, requires the showing of a compelling (not just important or legitimate) governmental interest, that the restriction on speech be narrowly tailored so it does not restrict a smidge more speech than absolutely necessary to protect the governmental interest, and that there be no conceivable alternative, less restrictive ways to protect the compelling governmental interest. Invoking strict scrutiny was to line the statute up against a wall and shoot it. Justices Breyer and Elena Kagan rejected strict scrutiny (these were knowing and contemptible lies, after all), but applying the lesser standard of "intermediate scrutiny" were able to concur in the result—the Act was unconstitutional.
Once more it was Samuel Alito who dissented, this time carrying Clarence Thomas and, wonder of wonders, Antonin Scalia with him. Cutting immediately to the heart of the matter, Justice Alito noted that the Act had been passed in 2005 in response to an "epidemic" of false claims:
Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only knowingly false statements about hard facts directly within the speaker's personal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech.
On the question of the harms wrought by false claims, Justice Alito insisted they were "tangible":
the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps.
As for the alternative, non-criminal means available for protecting the integrity of military decorations, Alito carefully explained that these "unfortunately, will not work." He concluded by reminding his fellows that "time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value."
So, there is a ray of hope, but only a ray. It is painful to see our conservative friends writing opinions in lesser-value speech cases that might have been authored by William Brennan or John Paul Stevens. But Justice Alito's performance is approaching the heroic, and it is worth remembering that in this set of cases every member of the current Court except Kennedy, Kagan, and Sotomayor dissented or expressed doubts at least once. Sometimes, as in Alvarez, the doubters joined Alito's opinion, sometimes as in Brown, they had reasons of their own. But in the long struggle to pull constitutional law back from the radicalism of the 1970s toward Justice Murphy's more traditional views of lesser-value speech, Alito has at least planted a standard. We'll see who ultimately rallies to it.