Today’s conservative Roberts Court is a bastion of First Amendment freedom as was the liberal Warren Court half a century ago. But the winners are different. Establishment insiders win today whereas outsiders won most often during the Warren years.
On its 200th birthday in 1991, the First Amendment had developed into a powerful shield against government abuse of outsiders, leftists, anarchists, communists, labor unions, Jehovah’s Witnesses, atheists and non-Christians. It protected the press from government censorship and debilitating libel suits. It protected leftist flag burners and a dissident wearing a “Fuck the draft” jacket into a courthouse. And it protected little Mary Beth Tinker wearing an armband to school protesting the Vietnam War.
By its 231st birthday this month, the First Amendment winners are increasingly well-heeled. Corporations won the right to spend an unlimited amount of corporate money – millions, billions – to help their favored candidate win an election. Hobby Lobby won a decision based on religious liberty allowing it to refuse to provide contraceptive health coverage for its female workers. Conservative policy groups won a decision in an Illinois case blocking government unions from imposing mandatory union fees on non-members. And the court has lent a sympathetic ear to bakers and florists who say they won’t serve same-sex couples whose marriages violated their religious beliefs.
Beyond that, gun owners won greatly expanded rights under a Roberts Court’s reinterpretation of the Second Amendment. Corporations won decisions to force consumers and former employees into arbitration instead of class actions. Human rights lawyers lost their right to counsel foreign clients connected to terrorism about nonviolent conflict resolution. Polluters won a major victory cutting back on the government’s power to address global warming. And the court just took up a case that could impair the right to strike by subjecting unions to state lawsuits.
Gregory P. Magarian, the Thomas and Karole Greene Professor of Law at Washington University and a former Supreme Court clerk, puts it this way: “The court has put much more energy into expanding the free speech rights of politically or economically powerful speakers, while largely disdaining the First Amendment concerns of politically and economically disempowered speakers.”
Justice Samuel Alito is a leader of the shift. Mark Sableman, a St. Louis media lawyer at Thompson Coburn, pointed out, in a recent speech on the Supreme Court. Alito wrote the 2017 decision throwing out a federal law that banned disparaging trademarks that were offensive. Alito wrote, “Speech may not be banned on the ground that it expresses ideas that offend.” The ruling helped the Washington Redskins at the time in its effort to hold on to the Redskins name.
Alito also wrote the Hobby Lobby decision protecting corporate religious scruples. In addition, his replacement of Sandra Day O’Connor led to Citizens United opening the door to unlimited corporate political spending and to broader Second Amendment gun rights.
Magarian remarks, “Justice Alito is passionately committed to protecting rights and interests of people exactly like Justice Alito.”
Chaos in the information universe
Meanwhile, the Bill of Rights is at the vortex of a hurricane of chaotic super-charged speech. Just about everybody thinks the other guy is taking away their free speech rights.
Conservatives complain about a Woke culture, today’s version of political correctness, where conservative speakers are disinvited from college campuses by so-called “cancel culture.” Liberals complain that broadcast and Internet sites promote white supremacy, hate, misogyny and attacks on transgender people.
Sen. Josh Hawley, R-Mo., accuses social media companies, such as Twitter, of taking orders from the government to take down false information about COVID-19 and vaccinations. Liberals respond that the MAGA universe threatens public health and the health of democracy by spreading lies about COVID-19, vaccinations and who won the 2020 election.
Gov. Ron DeSantis, mentioned as a presidential candidate, boasts Florida is where “woke goes to die,” and passed the so-called “Don’t say gay” bill, limiting what public school teachers can say about gender issues in school. At the same time, Pen America reports from July 2001 to June 2002 there were 2,532 instances of individual books being banned, affecting 1,648 unique book titles. In Missouri, Secretary of State Jay Ashcroft, a possible gubernatorial candidate, is seeking to cut off money from public libraries that offer books that might appeal of some sexual preferences of minors.
At a recent court hearing, DeSantis’ lawyer was asked what woke means. He responded: “it would be the belief there are systemic injustices in American society and the need to address them.”
At the center of the storm is today’s media, which bear only a passing resemblance to the media of 2000.
Think of the communications platforms and technologies that didn’t exist 20 years ago, or were in their infancy.
Artificial intelligence. ChatGPT. Virtual reality. Facial recognition software. TikTok, Instagram, Facebook, Google, SnapChat, NewsMax, Breitbart, One America News, Huffington Post, tweets, GPS, citizen journalists, aggregators, page views, click bait, impressions, shares, comments, friends, likes, deep fakes, the filter bubble, podcasts, Google Earth, Google Street Views, WikiLeaks, the Intercept, Politico and on and on.
The Internet enthusiasts of 2000 predicted a blossoming of democracy with millions of new voices suddenly having the equivalent of a printing press in their hand-held smart-phone. But instead, we ended up in a dense fog of information and disinformation that can cause citizens to get lost. The legacy press, after a golden age of uncovering Watergate and the Pentagon Papers, steamed right into the unseen iceberg of new technology and began taking on water.
The press is having a nervous breakdown.
Hackers and spies manipulate digital information. Hackers in St. Petersburg, working for Russian intelligence, pulled incriminating information from the Democratic Party’s digital files and leaked it – apparently via WikiLeaks – to the U.S. press to influence the 2016 election.
Then, a month before the 2020 election, powerful social media platforms used the technology usually reserved to block distribution of child porn to block distribution of a New York Post story on Hunter Biden’s laptop. Twitter’s Jack Dorsey apologized, but after the fact.
If the media universe wasn’t chaotic enough, Elon Musk has bought Twitter and, as the chief “twit,” immediately began writing a series of false and misleading posts. One relayed false allegations about the attack on Nancy Pelosi’s husband. Another suggested his recently departed safety chief, Yoel Roth, was “in favor of children being able to access adult Internet service.” A third called for the firing of Dr. Anthony Fauci and his criminal prosecution for supporting research that killed millions. Musk tweeted:“My pronouns are Prosecute/Fauci.”
Missouri’s Sen. Hawley leads the charge against social media companies, complaining that it is a violation of the First Amendment for Twitter or other social media companies to consult with the government about posts containing false information about COVID-19 and vaccines. Hawley maintains this consultation makes the private social media giants “arms” of the government and White House and therefore violates the First Amendment.
Legal experts point out that the First Amendment applies to government censorship of speech, not editorial decisions by private media companies. The First Amendment would only be implicated if the government were to strongarm a private media company into blocking a speaker.
Hawley also has introduced a bill to remove trademark protections from Disney Corp. for having criticized Gov. DeSantis’ so-called “Don’t say Gay” bill. He took this action as DeSantis moved to remove special tax advantages that Disney had enjoyed for its theme park.
Magarian, the Washington University First Amendment expert, says this may violate Disney’s free speech rights. “Corporations certainly are capable of expressing themselves, as Disney did when it spoke out against ‘Don’t Say Gay.’ Government, in turn, may not retaliate against any speaker’s political speech,” he said.
Jonathan Turley, a libertarian law professor at George Washington University and adviser to Fox News, testified recently that, “The calls for greater governmental and private censorship in the United States are growing at a time when free speech is under unprecedented attack. Such movements remain a type of dormant virus in our body politic.”
Turley is most concerned about college campuses canceling invitations to conservative speakers. “The extensive ‘canceling of speeches and events on campuses often involves rejecting the classical view that free speech protects all speakers, even those who are viewed as advancing harmful ideas.”
Charter to say no
Loud chaos may be exactly what we should expect from the Bill of Rights. It is every American’s charter to say no.
“The Bill of Rights is a born rebel,” wrote Frank I. Cobb, a 20th century news reporter. “It reeks with sedition. In every clause it shakes its fist in the face of constituted authority…It is the one guarantee of human freedom to the American people.”
Magarian expressed a similar sentiment in the introduction to his book, Managed Speech:
“If a democracy doesn’t make noise, it dies. We in the United States are supposed to be a self-governing people…Self-government requires constant political debate…Those discourses can’t just comprise polite expressions of mutual affirmation by wealthy and powerful elites. The discussion we need is boisterous, angry, and hopeful. It’s aspirational, transgressive, and inclusive.
“It’s the steady hum of ideas in laboratories and studios, in chat rooms and comment threads, and most of all in the streets. It’s the shouts that forge social movements that shape our society, from revolutionary battle cries to abolitionist prophecies, from labor pickets to civil rights sit-ins, from blessings of same-sex marriages to whatever our shared future holds…
“It’s the exclamations, whispers, and laughter that make us the individuals we are, individuals who join together, govern ourselves…A democratic society needs to muster and sustain the broadest, deepest, noisiest public discussion we can all pull from our lungs.”
Right of naysaying
America fought a revolution because we were contrarians, and the Bill of Rights protects our naysaying.
People can say:
- I don’t agree with the president or Congress or the Supreme Court.
- I won’t bow down to any orthodoxy, religious or political.
- I won’t worship someone else’s God or the state’s God. I might not worship any god. But I like holiday exhibitions at city hall with a creche and a Christmas tree.
- The government generally can’t tell me what to think, or what I can say, view, draw, photograph, read or tweet.
- The government can’t stop me from speaking or even stop the publication of most national security secrets.
- I won’t salute the flag. I might even burn it or the Bible or the Constitution or the Koran in protest. And if I’m a public school student even the principal can’t force me to take off an armband protesting the war.
- The government can’t take away the gun I have to protect my house, nor can the police search me or my house or my cell phone without a good reason.
- The government can’t tell me I have to marry someone of a particular race, or religion or sex.
- The government can’t refuse to teach the theory of evolution to my children because of religious objections. Nor can it force my children to hear the pseudo-science of creationism in public schools.
- The government can’t make me confess to a crime or sentence me to prison unless I’ve had a lawyer and a fair trial before an impartial jury. And if the punishment violates today’s evolving standards of decency, the government can’t impose it. Juveniles can’t be executed, nor can rapists.
- The government can’t tell me to stay out of the park or off the street with my signs and banners of protest. Nor can the police tell me I can’t protest at night or shoot rubber bullets or bullets at me when I’m protesting peacefully.
The Bill of Rights protects negative rights – things the government can’t do to its citizens. It’s a perfect document for a nation of contrarians that got its start by shouting no to King George III, dumping tea into Boston Harbor and refusing to pay taxes.
The idea of the First Amendment is to protect the ideas people hate. There is no need for a First Amendment to protect popular ideas. The majority won’t outlaw speech it likes.
This is why the First Amendment protects all sorts of distasteful speech that makes the majority mad. This includes hate speech, flag burning, cross-burning, Nazi parades, profanity, pornography, violent video games, politicians’ lies, multi-million dollar contributions to elect politicians, anti-gay protests at soldiers’ funerals and slurs such as calling police pigs.
Nazis can parade through south St. Louis or through Skokie in front of Holocaust survivors. The Ku Klux Klan can wear hoods and robes, burn a cross and promise “vengeance” against ”n……” and “Jews.” A Vietnam protester can walk through a courthouse with a jacket that says, “Fuck the draft.” Protesters can burn the flag in front of George H.W. Bush’s nominating convention. The Westboro Baptist Church can picket funerals of soldiers displaying hateful, anti-gay signs. Pornographer Larry Flynt can publish a parody of the Rev. Jerry Falwell having sex with his mother in an outhouse in order to spoof the Christian majority. The alt-right – and the left for that matter – can post fake news on the Internet to tilt an election.
Free speech is not absolute
Free speech is not an absolute right. The First Amendment begins, “Congress shall make no law…” abridging the rights it promises – free speech, assembly, petitioning for redress of grievances, a free press and religious freedom.
But the word Congress is much more powerful than it seems and the word “no” much less absolute.
As the Supreme Court began incorporating the Bill of Rights and requiring states to abide by them, the word Congress meant a lot more than Congress. It meant a person’s rights could be violated by every government agency and public actor from the president and Congress down to the city council, the public university and the local school board.
Justice Hugo Black, a mid-20th century justice, was a First Amendment absolutist. “No law” should mean “no law,” he said. But Black did not prevail, and there are many exceptions to the First Amendment.
It doesn’t protect obscenity, true threats, in-your-face fighting words, libel, slander, conspiracies to commit crimes, sedition, burning a draft card, racial or sexual harassment in the workplace or school, discriminatory housing ads or leaking classified government documents.
It won’t protect overnight Occupy Wall Street protests in public parks. It doesn’t protect advocacy of imminent unlawful action to overthrow the government or publication of the names of spies or troop movements. It doesn’t allow the use of another person’s image to make money, or a journalist invading the privacy of a living room with a hidden microphone or camera. It doesn’t protect publication of a work owned by someone else and protected by copyright. Nor can the school board require the recital of a prayer in the classroom or the city council order the placement of a nativity scene on a courthouse’s main staircase.
It’s not immediately evident why the Nazi protest in Skokie should be protected but not Occupy Wall Street’s overnight protest. Or why burning the flag is protected but not burning a draft card. Or why the president saying “God bless the United States” is more important to democracy than a state-sponsored school prayer at the beginning of the day. Or why the creche on the courthouse staircase is unconstitutional, while a display with a Christmas tree, Hanukkah menorah and sign of liberty in a park outside is okay.
There are reasons for all of these decisions. Neutral time, place and manner laws about safety and health shut down Occupy’s overnight protests. The draft card was an essential element of the Selective Service System in a way the flag is not. The president’s exhortation to God is his own free speech, while the state required prayer imposes an orthodoxy on impressionable school children. The nativity scene alone on the staircase makes non-Christians or atheists feel like strangers in their own city hall, while an ecumenical display with secular elements does not.
Some of the most difficult First Amendment decisions involve the clash between equality and freedom. Newspapers can’t print racially discriminatory housing ads. In addition, employers and schools have a duty not to tolerate a racially or sexually hostile work or education environment. But the Supreme Court is deciding this term whether a florist can be required to serve a same-sex couple if she is religiously opposed to same-sex marriage. And if she can refuse to serve a same-sex couple, can she refuse a Black couple or interracial couple?
Truth wins out?
The First Amendment rests on the Enlightenment premise that truth wins over falsity on the battlefield of ideas. As John Milton put it in the 17th century: “who ever knew Truth put to the worse in a free and open encounter?”
Oliver Wendell Holmes Jr., one of the great civil libertarians of the 20th century, put the same idea in the libertarian lexicon of free markets. “When men have realized that time has upset many fighting faiths,” he wrote in a 1919 dissent, “they may come to believe, even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
The other great free-speech justice of the early 20th century, Louis Brandeis, had a more communitarian explanation for free speech, describing its importance to democracy.
“Those who won our independence believed…that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth,” he wrote. “That, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine…Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law.”
Running through Milton, Holmes and Brandeis is an almost religious faith that everything will work out as long as people can freely express themselves. Undergirding this premise is the European Enlightenment’s belief in empiricism. Science, study and analysis can find facts upon which people and democratic societies can make the right decisions.
What if truth doesn’t win?
What if a free society doesn’t land on the truth?
What if fake news gets more attention online than real news? BuzzFeed reported that in the 2016 election, “top fake election news stories generated more total engagement on Facebook than top election stories from 19 major news outlets combined.”
What happens when a “publisher” like Julian Assange, who portrays himself as a truth teller, becomes an arm of Russian intelligence?
Through the lens of history, the First Amendment does not guarantee truth will win, or at least that it will win out immediately.
America enslaved and then discriminated against Blacks from its founding and before. It took centuries and hundreds of thousands dead to end slavery and almost another century, with lynchings and murders, to end segregation. Today, many don’t believe there is systemic discrimination against Blacks and want to ban the idea from the schools.
America denied women the right to vote even longer than it did Blacks. Only in the past 40 years has the country begun to realize the truth of second-class treatment of women in the workplace and the extensiveness of sexual harassment on college campuses and in everyday life. Yet, the nation can’t agree on the simple statement in the Equal Rights Amendment “equality of rights under law shall not be denied or abridged…on account of sex.” And now, women have lost the constitutional right giving them control of their reproduction.
America drove Native Americans from their land and killed them. And the U.S. still hasn’t faced up to the truth of its oppression of the continent’s original residents.
Is that a history of the First Amendment failing Milton’s, Holmes’ and Brandeis’ faith in truth-finding? Or is it a story creeping closer to truth.
Newspaper editors are no longer jailed for criticizing the president as they were under the Sedition Act in 1798. Critics of war and the draft no longer are jailed for leafleting, as they were during World War I. A candidate for president couldn’t be imprisoned for an anti-war speech, like Eugene Debs. The country seems to have accepted that the Japanese-American internment camps were a terrible injustice. It took years, but Joseph McCarthy was revealed as a demagogue and censured but by the Senate.
Slavery and segregation by law ended, women won the right to vote, broad civil rights protections for Blacks and women won passage. Same-sex marriage recently won constitutional protection. Women have access to birth control. The Equal Rights Amendment lost, but the Supreme Court expanded the Constitution’s “equal protection” to include almost everything the amendment would have provided. Title IX has revolutionized women’s roles in sports and college life. And campuses around the country are aware as never before of the extent of sexual harassment.
Thieves and rapists no longer are executed as they were at the time of the Bill of Rights. Nor are juveniles executed, even though they were as recently as the turn of the 21st century. People accused of crimes have a right to a lawyer. Prosecutors no longer can exclude Blacks from juries to create all-white ones – although they still try.
Today, Americans have finger-tip access to the broadest range of opinion, fact and fiction of any generation in history. The test of the rest of this third century of the Bill of Rights is whether the people of the freest nation on earth can chart a course through the sea of images, sounds, news and opinion that engulfs us and hold to the course that has moved us along a zigzag path toward a more perfect union.
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William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.