5 worst free-speech passages

Monday, May 2, 2011

Recently I selected my five favorite free-speech passages from the rich body of the U.S. Supreme Court’s First Amendment jurisprudence. But with the good must come the bad. The following five passages reflect a crabbed view of free speech and have led to much unnecessary censorship.

“When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

These words embody the essence of the Court in Garcetti v. Ceballos (2006), a ruling that has dramatically curtailed the level of free-speech protection for public employees. For many years, courts balanced an employee’s right to speak on matters of public importance against an employer’s countervailing interest in an efficient, disruption-free workplace. In Garcetti, the Court created an initial hurdle that has proven insurmountable for many public-employee litigants. Under this language from Justice Anthony Kennedy, many public employees who speak out against abuses have no First Amendment safeguards if the speech is considered official job-duty speech. They have been Garcettized.

“We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”

Justice Owen Roberts wrote these words for a unanimous Supreme Court in Valentine v. Chrestensen (1942), rejecting the First Amendment challenge of Chrestensen, who had sought to distribute handbills to advertise his submarine exhibit. A New York ordinance prohibited the display of commercial handbills, so the resourceful Chrestensen made double-sided handbills with advertising on one side and a message against censorship on the other. This effort did not satisfy New York officials, who refused to allow him to distribute the handbills. Citing no case-law authority, Roberts wrote that it was “clear” that the Constitution did not impose any limits on government in regulating purely commercial advertising. It took the U.S. Supreme court more than 30 years to overrule this decision and recognize the informative value of commercial speech.

“Moreover, even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate … .”

Thus wrote Justice John Paul Stevens in his opinion in Young v. American Mini Theatres (1976), which upheld a law placing zoning restrictions on adult businesses. It was in this opinion that Stevens introduced what’s called the secondary-effects doctrine in a footnote — a doctrine that allows for the ready suppression of adult-oriented expression under the legal fiction that the suppression has nothing to do with the content of the expression, in this case sex. In the passage quoted above, Stevens advocates a low-value theory of speech, namely that sexual speech is far less important than political speech. Justice Potter Stewart observed in his powerful dissenting opinion that Stevens’ analysis represented a “drastic departure from established principles of First Amendment law.” Stewart said Stevens’ low-value theory turns the defense of free speech “on its head” because “[t]he guarantees of the Bill of Rights were designed to protect against precisely such majoritarian limitations on individual liberty.”

“A school must also retain the authority to refuse to sponsor student speech that might … associate the school with any position other than neutrality on matters of political controversy.”

Justice Byron White penned these words in his majority opinion for the Court in Hazelwood School District v. Kuhlmeier. Hazelwood involved the censorship of two stories in a high school newspaper — one dealing with teen pregnancy, the other with divorce. The Court made it easier for school officials to regulate school-sponsored student speech, saying they could do so as long as they had a legitimate educational reason. One of the supposedly legitimate educational reasons was to ensure that the school was not associated “with any position other than neutrality on matters of political controversy.” This alarming passage turns the First Amendment upside down by allowing only innocuous speech that doesn’t touch on important issues.

“A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.”

This colorful passage from Justice Edward Sanford’s majority opinion in Gitlow v. New York (1925) has some literary appeal with its flaming images. But it has explosive consequences for free speech. It says speech may be punished if it may at some indefinite point in time have a harmful effect. The case involved the prosecution of Socialist Benjamin Gitlow under a New York anarchy law for distributing his “Left Wing Manifesto,” which called for the rise of the proletariat against capitalism. In fairness, it should be noted that the decision as a whole has had lasting positive importance in free-speech law, as the Court for the first time recognized that the First Amendment free-speech clause applied to state and local governments.

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