5 favorite First Amendment passages

Tuesday, March 8, 2011

First Amendment jurisprudence is filled with historic decisions and memorable moments. As the “court of last resort,” the United States Supreme Court has had a leading role in crafting this intricate body of law. Various justices have penned some particularly trenchant passages in their opinions over the decades. As we enter the season of March Madness, here is my “starting five” of favorite First Amendment free-speech quotes from the Supreme Court.

“If 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.”

Justice Robert Jackson wrote this famous sentence in the flag-salute decision West Virginia Board of Education v. Barnette (1943). In that opinion, the Court struck down a provision that required public school students to stand, salute the flag and recite the Pledge of Allegiance or face expulsion and a fine or 30 days in jail for their parents. The decision is significant because the Court overruled its prior flag-salute ruling in Minersville School District v. Gobitis (1940), in part because of the awful wave of persecution it unleashed against Jehovah’s Witnesses, who objected to flag salutes. Jackson’s famous passage stands for the principle that the government may not compel people to believe or speak certain ideas. Justice William Brennan later described Jackson’s statement as stating “one of our society’s defining principles in words deserving of their frequent repetition.”

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

These are Justice Brennan’s words in his opinion for the Court in the 1989 flag-burning decision Texas v. Johnson. In that case, Texas had charged Gregory Lee Johnson under a state law that criminalized the contemptuous treatment of the American flag. Johnson had burned one outside the Republican National Convention in Dallas in 1984. Brennan’s statement stands for the principle that the First Amendment protects even unpopular, offensive and repugnant speech. Chief Justice John G. Roberts Jr. quoted the passage in his opinion this month in the funeral-protest decision Snyder v. Phelps.

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Justice Thurgood Marshall wrote this passage in his 1972 opinion for the Court in Police Department of Chicago v. Mosley, striking down a Chicago ordinance that prohibited all picketing within 150 feet of schools except for “the peaceful picketing of any school involved in a labor dispute.” Decided on First Amendment and equal protection grounds, the case held that this selective treatment of speech discriminated against Earl Mosley, who protested outside a high school against racial discrimination. Marshall’s passage embodies the fundamental First Amendment principle that government regulations that discriminate against speech on the basis of content or viewpoint are suspect.

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

So wrote Justice Louis Brandeis in his concurring opinion in Whitney v. California (1927). The history of Brandeis’ concurrence is a fascinating story, as scholars Ronald Collins and David Skover relate in their 2005 article, “Curious Concurrence: Justice Brandeis’ Vote in Whitney v. California.” Brandeis’ statement forms the essence of the counter-speech doctrine — that the best way to oppose bad speech is with good speech.

“For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless true that one man’s vulgarity is another’s lyric.”

This memorable sentence appeared in Justice John Marshall Harlan’s majority opinion in the 1971 case Cohen v. California. The Court ruled that Robert Paul Cohen could not be punished under a broad disturbing-the-peace law for wearing a jacket bearing the words  “Fuck the Draft” in a Los Angeles County courthouse. As I noted in an earlier commentary, Harlan’s phrase, “one man’s vulgarity is another’s lyric,” captures the essence of freedom and the First Amendment. Offensiveness often resides in the eye of the beholder and in a free society we don’t want the government serving as the taste police.