The First Amendment: Limitations
It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.
—Justice William J. Brennan, Jr.1
In chapter 3, we described principles used by the U.S. Supreme Court to selectively apply the individual liberties found in the Bill of Rights to the activities of state governments via the Fourteenth Amendment. We also introduced several philosophies used to interpret the First Amendment and the standards of judicial review used by the U.S. Supreme Court to evaluate the constitutionality of laws and governmental actions. In this chapter, we use that information to describe how the Supreme Court has interpreted and in effect limited the freedoms granted by the First Amendment.
We begin with a very brief review of the absolutist and social conformist approaches to interpretation of First Amendment freedoms. Following this review, we explain how time, place, and manner regulations can be used to restrict expressive behavior. These restrictions are based almost entirely on the concept of speech plus conduct prevalent in the literalist interpretation of First Amendment liberties.
We continue with an analysis of the location-based forum approach to laws involving expressive conduct and explain distinctions between various types of fora. These distinctions affect selection of the standard of review used by the Court to determine whether time, place, and manner restrictions are legitimate and constitutional. Analysis of limitations on communication liberty based on the forum in which the expressive behavior takes place combines concepts from literalist and social conformist interpretations of First Amendment liberties.
Some limitations on First Amendment freedoms are based entirely on communication content. Sections on sedition, war, and the clear and present danger test are included in this chapter both to exemplify situations in which the government may suppress communication because of its content and to warn mass communications professionals that they may be censored or regulated. The incitement standard for civil suits is covered in some detail because it can be used to subject practitioners and their employers to expensive litigation.
Obscenity is defined as non-speech by advocates of the social conformist interpretation. Questions about obscenity and indecency only rarely affect working communications practitioners, so we treat the subject briefly. Application of the philosophies used to interpret First Amendment liberties and the procedure for balancing individual liberties against social interest should allow any mass communications practitioner to predict when obscene communications can be restricted. Indecent communication is somewhat more complex and is addressed in more detail in chapter 5, which deals with telecommunications and electronic media.
Finally, this chapter is the first to include practice notes. These notes describe some areas of mass communication practice wherein expression may be regulated. They also provide some suggestions for how practitioners may anticipate and address conflicts between their interests and laws or ordinances regulating communications.
Introduction and Review
Before we begin describing how the courts have limited free speech and free press, we briefly review the philosophical approaches used to interpret the First Amendment. Chapter 3 introduced the two major philosophies used by the U.S. Supreme Court to interpret free speech and free press issues. Those are the literalist and social conformist philosophies. They are summarized in Exhibit 4.1. Literalists believe there can be no laws restricting natural speech or writing, but as soon as any conduct is mixed with the speech, the conduct may be regulated. Therefore, “pure speech,” which is natural oral or written expression, is free from regulation but speech plus conduct may be regulated. The only limitation literalists impose on the regulation of speech plus conduct is that all regulations must be politically neutral and no regulation may discriminate because of the category of speaker or the content of the message.
“Congress shall make NO law . . .” All pure speech is protected.
Pure speech is all natural written or oral expression.
All other forms of expression may be regulated, controlled, censored, and possibly punished.
Speech Plus = all forms of human communication that involve some conduct, gesture, or activity added to pure speech. This includes:
- All media by which pure speech is emphasized, embellished, and disseminated.
- All communication events, processes, technologies, tools, and implements.
Speech Plus conduct can be regulated – the only two major limitations on government regulation of speech plus are:
- Any regulation must be politically neutral, and
- Any regulation must be nondiscriminatory, based on type or category of speaker.
Social Conformists including (includes both social function and social effects)
Look at both purpose and function of the communication and
Classify as either “good” or “bad” based on current view of political correctness.
Permit government regulation or censorship or prohibits government regulation or censorship based on a balance of competing interests.
Use the content of the communication to determine its social function or social effects.
Divide communication into:
Speech, which deserves constitutional protection and
Non-speech, which has no protection.
On the other hand, the social conformist approach to freedom of speech and press simply defines some expression as speech and some as non-speech. Under this philosophy, speech enjoys constitutional protection while non-speech does not. Proponents of this philosophical approach also define non-speech as any expression that does not advance a good social goal. Therefore, if they find that oral or written expression does not advance a good social end, it is defined as non-speech and may be controlled or punished by the government. Social conformists are divided into two categories. The social functionalists decide what does and does not advance good social ends based on current social values. The social effects advocates say the proper social goal of all “good” speech is the advancement of democratic society or the current government. Therefore, a social effects advocate could justify regulating speech if the content of that speech harmed an interest of the current government.
Applying the literalist interpretation, the U.S. Supreme Court has found restrictions on communication conduct to be permissible as long as those restrictions are content-neutral. These restrictions are typically called the time, place, and manner restrictions. However, in order to determine if time, place, and manner restrictions are content-neutral, the Court must obviously consider the content of the message. Doing this requires some application of a social conformist interpretation.
Using the social conformist interpretation by itself, the U.S. Supreme Court has declared that some classes of expression are non-speech. They are without social value because their content does not serve one of the permissible social goals. In the view of social conformists, such non-speech is not what the First Amendment was intended to protect. Non-speech may be prohibited, censored, controlled, and even punished by government. Approximately eight categories of non-speech have evolved from this interpretation: lewd, obscene, or pornographic content; defamatory content; insulting or “fighting words”; expressive content that tends to inflict injury; speech that incites an immediate illegal conduct such as riot or violence; speech that poses an imminent threat to public safety or national security; false or misleading commercial advertising; and perjury. At times, the Supreme Court has applied these categories of non-speech to allow national or state governments to ban it totally and to punish speakers or writers of such communication. In some instances, even those who were merely recipients of non-speech were subject to government action.
Later in this chapter we describe the restrictions on obscenity and in chapter 5 we discuss indecency. Most regulation of obscenity is based on community standards and is left to the individual states. Pornographic expression has been given some protection, as long as it is not obscene, but the creation, distribution, and even possession of child pornography has been declared to be non-speech and totally without First Amendment protection. Profane and indecent expression have been given some protection, but are considered to be “lesser speech” and are subject to rigorous time, place, and manner controls. These are discussed in chapter 5, which deals with regulation of broadcasting.
Defamatory expression, insulting or “fighting words,” and expression that tends to inflict injury have been left to the states to regulate primarily through civil laws allowing recovery for proven injury. Some states have allowed “fighting words” to be used as a defense to assault or battery cases, depending on the words and circumstances. Prior to the 1931 Supreme Court decision in Near v. Minnesota2 defamatory speech could not only be censored; speakers and writers could be criminally punished for their utterances. Such expression, because of its falsity, was defined as non-speech and was totally outside the reach of First Amendment protection. In the Near decision, the Court ruled that First Amendment protections encompassed defamatory accusations and statements and held that the government itself could not censor or enjoin such publications. However, the Court concluded that the protections of speech and press are not absolute. Therefore, the proper recourse in such cases is through private suits for defamation rather than through government-initiated censorship and criminal punishment.3
Oral or written expression that incites an immediate breach of the peace, riot, or other unlawful action, has been determined to be non-speech and not the kind of speech or press that the First Amendment was intended to protect. Therefore, government censorship, arrest of the speakers or writers, and punishment for advocating illegal acts can be constitutional. More recently, the concept of non-speech has been extended to the civil area giving litigants a cause of action against publishers of manuals describing how to complete illegal acts. These suits require that the plaintiff suffer some injury and are based on an “incitement” standard that is described later in this chapter.4
Expression that is interpreted to pose an imminent or immediate threat or risk of harm to public safety or national security has, throughout U.S. history, been defined as non-speech. It is therefore censorable and punishable. However, following the creation and application of the clear and present danger test in 1919, and since its clear adoption as the prevailing standard in the 1969 case of Brandenberg v. Ohio,5 the Supreme Court has distinguished between mere advocacy of abstract ideas and beliefs, which are now considered to be within the realm of “protected speech,” and advocacy of specific illegal activities, which can be prohibited and punished.
Finally, those adhering to the social conformist interpretation of First Amendment issues have determined that both false or misleading commercial advertising and perjury are non-speech and thus can be totally prohibited and punished by the government. Consider also, that prior to the 1975 decision in Bigelow v. Virginia6 all forms of advertising were considered self-serving puffery, and therefore were non-speech and unworthy of any protection under the First Amendment. However, since the decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council7 truthful advertising has been viewed as useful in allowing the public to make “informed” choices about products and services for sale. Commercial communication is now granted limited First Amendment protection under the heightened scrutiny standard discussed in chapter 3.8
In summary, it seems apparent that the Supreme Court bases decisions on the social conformist approach to First Amendment interpretation. Clearly, some expressive behavior is being defined as non-speech because of its content, and non-speech is denied First Amendment protection.
It requires careful consideration of both message content and the author’s viewpoint to decide what speech is obscene or what commercial messages are false, or whether some expression constitutes an immediate threat to public safety. These decisions are not content neutral and certainly are not consistent with an absolutist or literalist interpretation of the First Amendment. Some would say they are the antithesis of the unalienable human rights so highly regarded by the founders of our nation.
Applying both literalist and social conformist interpretations, the U.S. Supreme Court has created several limitations on the liberties of free speech and free press. In the remainder of this chapter we first explain how the literalist distinction between pure speech and speech plus conduct are used to permit restrictions based on time, place, and manner of speech, or the forum in which the expression takes place. Then we describe limitations based on speech content that are more consistent with the social conformist interpretation of First Amendment liberties.
Time, Place, and Manner Restrictions and Public Fora
It may appear that the social conformist interpretation has been pervasive in U.S. Supreme Court decisions concerning First Amendment liberties. But it would be more accurate to say the Supreme Court has been very eclectic in its interpretations. The Court has employed a combination of both literalist and social conformist approaches to suit the views of the majority of justices on the Court as each individual case has come before it.
Some permissible restrictions on free expression are based entirely on the time, place, and manner of communication. That is to say laws regulating when one may speak, where one may communicate, or the manner or medium of expression have generally been upheld. For time, place, and manner restrictions to be constitutional they must be absolutely content-neutral. These restrictions permit the conduct used to deliver speech to be regulated but do not permit any regulation that would give preference to one point of view over any other. Applying this standard, the U.S. Supreme Court has upheld restrictions on where charities or religious groups may solicit funds so long as all solicitors are required to follow the same rules.9 Laws forbidding loudspeakers, prohibiting solicitations in airports, or limiting distribution of literature to specific hours have all been upheld. As long as the restriction does not specify or discriminate based on what is being said, governmental limitations on the time, place, and manner of communications are constitutional. However, the content-neutrality of the law must be absolute. Even laws that might allow some discretion to discriminate against a particular message content or speaker are unconstitutional. In 2002, for example, the U.S. Supreme Court ruled that a village ordinance requiring solicitors to register was unconstitutional. The Court noted the registration process permitted some discretion by the village and could be used to limit communication by some groups.10 Even the possibility that a public official is given discretion to base a decision on the content of the expression being regulated is enough to make a time, place, or manner restriction unconstitutional. To help evaluate challenges to limitations on free speech based on time, place, and manner, the Court has developed a forum-based approach. It uses the concept of location of the expressive conduct to decide what standard of judicial review to apply.
Public Fora Standards
When evaluating restrictions on time, place, or manner of communication, the Supreme Court has applied the speech plus conduct concept from a literalist interpretation in combination with a social function interpretation to create standards of review based on the forum used for communication. This forum-based approach begins by dividing communication behavior into three categories based on the physical place where they occurred. The Court then applies a different standard of judicial review to governmental restrictions on communication in each of the three categories. These standards of judicial review are used to balance the government’s interest in a time, place, and manner restriction of free speech against the speaker’s individual right of free speech. These three categories are called traditional public fora, designated public fora, and non-public fora. These fora and the standards of review for each are summarized in Exhibit 4.2.
Exhibit 4.2. Forum-Based Review.
Traditional Public Fora Venue
Designated Public Fora Venue
Non-Public Fora Venue
Public streets, Sidewalks Parks Some public buildings
(and some but not all parts of buildings)
Location opened by the government for expressive behavior Examples:
Bulletin boards in schools Free fora or speaker corners on college campuses “Metaphysical fora” like student-run newspapers
All remaining “public property” including private property with public use. Examples:
Shopping mall s Government office lobbies Jails & prison s Military bases Airports Mailboxes
Standard of Judicial Review applied to any government regulation of expression in this place.
Standard of Judicial Review applied to any government regulation of expression in this place.
Standard of Judicial Review applied to any government regulation of expression in this place.
Strict Scrutiny*, which means the burden is on the government to show:
Reasonableness, which means the burden is on the person challenging the government regulation to show:
Traditional Public Forum
If the speaker or publisher chooses to engage in communication plus conduct in areas that have been traditionally available for public expression, such as the public streets, sidewalks, and parks, these locations are called traditional public fora by the Court. Some, but not all, public buildings are also public fora, as are some public spaces within government buildings. Whether any public building or public property is a traditional public forum depends on how it is usually used. For example, military buildings and police stations are typically not public fora because of their traditional emphasis on security. Historically, the steps in front of courthouses, capital buildings, and monuments and some government buildings were public fora. When evaluating First Amendment challenges to restrictions of expression in public fora, the Court applies the strict scrutiny standard of judicial review. In order for governmental limitations or regulations on the time, place, and manner of communications in these locations to be valid, the government must show that its laws or limitations are narrowly tailored to achieve a compelling state interest and it must leave ample alternative channels of communication open to users of these venues.11
Designated Public Fora
Some locations or media have not been traditionally used for free public expression but have been created or designated for that purpose. For example, most college campuses have a “speakers’ corner” or “Free Forum Area” set aside for demonstrations or student speeches. Other examples of designated public fora include bulletin boards and what are called metaphysical fora. Metaphysical fora are not places but are media that have been created for the expression of ideas. Such metaphysical fora may include student newspapers if the school has surrendered control of the newspaper content. It is also helpful to note that a location or metaphysical forum may be designated a public forum for only a limited purpose, or for use by a limited group of speakers.
The Court also applies the strict scrutiny standard of judicial review when any governmental attempt to regulate communication in designated public fora is challenged. Content discrimination may be permitted if it preserves the purposes of a limited forum; however, viewpoint discrimination is presumed to be impermissible when directed against speech that is within the forum’s purpose.12
The third location-based category used by the Court to select a standard of judicial review for challenges to time, place, and manner regulations on expressive conduct is called a non-public forum. This is the largest category of locations where communicative behaviors may be met with both government and private legal restrictions. These places include all remaining public or private property. It includes private property, not designated as public fora, to which owners invite the public, such as shopping malls, restaurants, and business offices. Government properties that are non-public fora include government offices, jails, military bases, mailboxes, and airport terminals. Communication in these non-public fora is evaluated using the reasonableness standard of judicial review.
Therefore, shopping centers and other public retail stores and businesses may impose reasonable time, place, and manner restrictions on communicators wishing to use their facilities, and these limitations may be imposed to minimize disruption of commercial or other business functions of the property owners. In addition, local governments may also impose reasonable ordinances to control activities in these areas. Furthermore the national, state, and local governments are not forbidden by the Constitution from controlling use of their own property for conducting their own business. Generally, time, place, and manner restrictions on expressive behaviors in non-public fora must (a) be content-neutral, (b) allow reasonable alternative channels of communication, and (c) be no broader than necessary to serve the government’s legitimate purpose. The burden of proof for challenges to communication limitations in non-public fora venues is on the proponent of unconstitutionality, not on the government or property owners.13
Sedition, War, and Clear and Present Danger
It should come as no surprise that the U.S. government has, on numerous occasions, sought to control and punish expressive conduct. This is just as true in today’s climate of terrorism as it was when the nation faced other periods of crises involving public safety or national security. One of the first acts of the new Congress of the United States was to censor and make punishable by imprisonment any manner of speech or writing critical of the federal government or its elected officials. The Sedition Act of 1798 made it “unlawful to publish false, scandalous, and malicious” information about the government, Congress, or the president. Speech and press that challenged or questioned actions of the fledgling national government or that gave support to a revival of British rule in the United States were seen as treason.14 Even our first president, George Washington, thought that information and “news” concerning the government should be controlled or “managed” and nothing should be published about the national government that might cast doubt on its legitimacy.15 However, Thomas Jefferson felt so strongly about the importance of the First Amendment freedoms, even when they involved criticism of our government, that he pardoned the people convicted under the 1798 Sedition Act.16
Since that time, several acts by Congress have made it illegal for anyone to speak against governmental actions or to advocate the replacement of our government. Almost all of the statutes limiting free speech have been created during times of perceived national emergencies or war. These include (a) the Espionage Act of 1917, (b) the Smith Act of 1940s, and (c) the USA PATRIOT Act of 2001.17 In addition, numerous state sedition acts have also found their way to the U.S. Supreme Court for interpretation and review.18
Development of the “Clear and Present Danger Test”
In chapter 3, the social effects approach to interpretation of First Amendment liberties was described as a subset of the social conformist viewpoint. Under this view, speech and press are classified based on governmental speculation about the anticipated results of the speech or writing. Governmental control and punishment have generally been found to be constitutional if the government can show that the anticipated results of the challenged communication would be (a) a breach of the peace, (b) an incitement to riot, (c) an incitement to any unlawful action, or (d) an immediate threat or risk to public safety or national security. The clear and present danger test was first articulated by Justice Oliver Wendell Holmes in the decision in Schenck v. United States.19 His opinion there elucidates application of the social effects interpretation to seditious communication.
The U.S. Supreme Court unanimously upheld the conviction of Schenck, who was the general secretary of the Socialist Party, under the Espionage Act of 1917. He was charged with conspiracy to violate the act by “causing and attempting to cause insubordination . . . in the military and naval forces of the United States, and [obstructing] the recruiting and enlistment service of the United States, when at war with the German Empire.” Schenck had used the U.S. Postal Service to distribute leaflets to men who had been drafted for military service. The leaflets quoted the Thirteenth Amendment and equated conscription with slavery. In his opinion affirming Schenck’s conviction, Justice Holmes specifically said that our rights and liberties may be interpreted differently depending on national conditions of peace or war.
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . .20
Justice Holmes described the criteria employed by the Courts to determine the constitutionality of governmental censorship in a time of war. He said:
The question in every case is whether the words 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. It is a question of proximity and degree. When 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.21
This statement initiated what is now called the clear and present danger test. The test is used to define the point at which speech can trigger serious harm. The Court does not require the government to show that the advocated harm actually occurs. Rather, the language used, by itself, may be sufficient to sustain conviction. It is ironic that just at the point where a speaker’s words and message may become truly effective, the government is allowed to suppress the speech and punish the speaker.
Justice Holmes first described the clear and present danger test in 1919 but the majority of the Court did not adopt the test in its present form until its decision in Brandenburg v. Ohio in 1969.22 Between 1919 and 1969, the test went through several permutations. In a dissenting opinion in 1919, Justice Holmes described his belief that people should not be convicted under the expanded Espionage Act of 1918 without proof of specific intent. He said, “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion.”23 In 1927, Justice Brandeis stressed that it was the imminence of the danger created and not the strength of advocacy that determines whether free expression can be limited without violating Constitutional rights. Brandeis, with Holmes concurring, wrote: