The First Amendment

Development of First Amendment Jurisprudence

Courts faced with cases challenging the constitutionality of laws and regulations affecting speech and press have developed a body of mass media law by weighing and balancing the interests of those supporting freedom of expression against those favoring competing interests.

The dilemma faced by the courts in such situations today is that despite the emphatic “no law” language of the Amendment, it is almost impossible to believe that those who helped add the First Amendment to the Federal Constitution more than 200 years ago meant to protect all speech without exception, even speech, for example, that is treasonous or criminally threatening or harmful to reputation. Yet judges and justices cannot simply ignore the First Amendment because they personally disapprove of the speech in question. Therefore, they have been obliged to develop a logical, rational and defensible method of interpretation. To understand how they have accomplished this, we need to take a brief look both at how judges interpret law and how historians interpret history.

Role play the part of judge for a moment—not a Supreme Court justice but a judge in a low-level court in which the cases usually involve petty crimes and minor disagreements. The next case on the docket is City v. Jones. Testifying for the city is the arresting officer, who reports that the defendant was apprehended at 10 a.m. Saturday and charged with operating a motorized, self-propelled vehicle within a city park. A municipal ordinance makes such operation illegal for all “persons regardless of status or circumstances.” The ordinance specifies that all persons so doing shall be sentenced to (a) no more than 30 and no fewer than 10 days in the city jail, and (b) a fine of no more than $100 and no less than $30. Because the defendant, Jones, is pleading guilty, this seems like an open-and-shut case.

As it happens in this case, the minutes taken at the city council meeting when the ordinance was passed reveal that the purpose of the municipal ordinance was to block off the streets going though city parks to prevent cars, trucks and buses from running over joggers and bike riders and inline skaters (and children riding toy trucks) using the paved surfaces in city parks on weekends. Support for this interpretation is reflected in newspaper articles of the time, reporting both the number of mishaps that had occurred and calls for action by concerned citizens to protect city parks users.

Both categorizing speech into various subclasses with differing levels of First Amendment protection and allowing greater latitude for some methods of government regulation of speech play extremely important roles in determining the constitutionality of government attempts to regulate advertising, public relations and other forms of commercial speech discussed in the following chapters.

The First Amendment from Its Beginnings Through the Nineteenth Century

If it is impossible (short of traveling back in time!) to know conclusively what kinds of speech the framers of the First Amendment meant to protect with the words “no law,” it also is true that the weight of historical evidence points inescapably to the conclusion that they meant the First Amendment, at the very least, to protect what Justice William Brennan once called “uninhibited, robust, and wide-open” public debate.² Often referred to as “political”³ speech, such discussion of public issues was considered to be absolutely vital to the development and growth of American democracy. Thus, courts and legal scholars generally refer to speech dealing with public issues as being at the heart or a core value of protected First Amendment speech.

Perhaps somewhat surprisingly, what we understand as the core meaning of the First Amendment is a twentieth-century concept. Between the ratification of the First Amendment in the 1790s and the first major court decisions involving challenges to laws regulating speech in the early 1900s, there was no significant litigation testing the constitutional limits of the federal government to regulate speech. The reasons the nineteenth-century (called by one commentator the “forgotten years” of media law⁴) saw few speech-related court cases are rooted in history and the new nation’s frontier mentality.

Think of America and Americans in the nineteenth century. Chances are, the stereotypical view is of a bunch of self-reliant adventurers bent on carving out a livelihood by either taming the wilderness or building empires in business and commerce. Although American history is not quite that simple, one should not underestimate the effects of “rugged individualism” and the fear of centralized big government that helped shape our national character. A century and a half ago, Americans readily discussed politics and were far from shy to express their views about controversial issues, but rarely were laws passed to limit debate or control ideas. Also, although individuals differed (sometimes violently), those differences were not fueled by ideologies like socialism or communism or other “isms” identified with or supported by foreign governments.

A third reason for the scarcity of First Amendment court decisions was that those who disagreed with their neighbors about political or religious issues and who encountered hostility or attempts to regulate their speech (e.g., the believers in the teachings of the Church of Jesus Christ of Latter-day Saints, often referred to as Mormons), often just packed up and left—and there was lots of wide-open space for them to settle. Another major factor in minimizing First Amendment jurisprudence during this time was an 1833 decision⁵ by the Supreme Court of the United States that held the provisions of the “Bill of Rights” in the Federal Constitution applied only to actions by the federal government, and thus did not apply to state laws and regulations. Considering all these reasons, the initially surprising lack of litigation involving the First Amendment during the nineteenth century becomes more understandable.

By the beginning of the twentieth century, however, many of these factors were changing. With the closing of the American frontier in the early 1890s,⁶ fewer expanses of desirable land for community sites meant that any large group of people who shared other than mainstream political ideologies or religious practices could no longer easily band together to form isolated communities of their own. The composition of the incoming tide of immigrants also changed, bringing to American shores people from eastern and southern Europe with what some long-time residents regarded as exotic and perhaps threatening customs, traditions and ideologies. By 1914, with storm clouds of war looming in Europe, conflicts over which side, if any, the United States should support in the upcoming conflict sharply divided Americans whose ancestors had settled the country many years before from those of more recent arrival.

This divided support for an American war effort was a major contributing factor to the passage of the Espionage Act of 1917.⁷ The statute made it a federal crime to aid and comfort the enemy and included provisions that, in certain circumstances, punished speaking out against the war effort as well. When those opposed to the war effort spoke out anyway, the stage was set for the first series of court cases in which the central issue focused on the determination of just how much protection the First Amendment provides.

The Development of Modern First Amendment Interpretation

Schenck v. U.S.⁸ and Abrams v. U.S.⁹ were the first two such cases. Both involved groups opposed to wartime activities. Schenck and his small band of socialists made their disapproval known by publishing a flier that urged young men selected for the draft to refuse to report for induction. Abrams and his anarchist and communist friends were concerned that bullets made to fight Germans might instead be used to kill Russian communists engaged in the civil war in Russia after the overthrow of the czar in 1917. Abrams helped publish fliers urging Americans working in munitions factories to strike. Although it is extremely doubtful that either Schenck or Abrams would have been successful in attracting many converts to his cause or in creating any real damage to the American war effort, federal authorities at the time took such matters seriously and arrested and convicted both men of conspiracy to violate the Espionage Act and other crimes.

Although there was strong historical and precedential evidence supporting the government’s claim that the authors of the First Amendment had meant it only to apply to government censorship and not to prevent punishment of dangerous or disagreeable speech after the fact, the opinion by Justice Oliver Wendell Holmes, Jr. in Schenck adopted the alternative position that the speech in question was undoubtedly protected from government interference in normal times and circumstances. However, he approved the conviction of Schenck because, as he said, “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”¹⁰ For Justice Holmes, “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”¹¹ This “clear-and-present-danger” test subsequently became the standard for judging the constitutionality of the federal government’s attempts to regulate normally protected speech. Because Schenck sent his anti-war pamphlets to young men about to be drafted into the armed services, said Justice Holmes, there was sufficient evidence that he intended his act to hinder the war effort.

In Abrams, however, Justice Holmes dissented. He conceded that the outcome of Abrams’ actions might impede the war effort (although even this was highly doubtful), but argued that the government could not convict Abrams of “espionage” because his purpose was to support his comrades in Russia, not to aid Germany. He thus lacked the specific intent to aid the enemy required by the wording of the Espionage Act. Justice Holmes used his dissenting opinion as well to present his famous analogy of a free marketplace of ideas which he likened to an early twentieth-century, economic “laissez-faire” free marketplace of goods and services.¹²