The First Amendment
Advertising and public relations practitioners picking up a 450-plus page book filled with examples and discussions of laws regulating commercial speech could be pardoned for being somewhat puzzled. After all, the language of the First Amendment to the Federal Constitution clearly mandates that “Congress [and by logical extension any lesser unit of government] shall make no law … abridging freedom of speech or of the press …”1 How can there be laws regulating any speech (let alone advertising or public relations speech) in the face of the Constitution’s emphatic statement that there can be “no law?”
This puzzle requires us to begin with a brief overview of the First Amendment and how it is interpreted before we turn our attention to the principal subject matter of this book.
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.
However, before passing judgment, it seems only fair to hear what the defendant has to say. Unfortunately, Mr. Jones apparently is no place to be seen. When you ask the arresting officer “Where’s Jones?” the policeman gestures for you to lean forward and look over the front of your large, desk-like bench. Upon so doing, you discover that “Mr. Jones” is a curly headed, 9-year-old, clutching a giant toy truck on which a child can sit and ride by winding up a big key on the truck’s cab.
You’re the judge. Now what do you do? You can’t very well issue a fine and throw the kid in the slammer, but you also aren’t free to ignore the law that clearly says it applies to all “persons regardless of status or circumstances.”
This rather exaggerated case is an example that illustrates a very real dilemma that daily confronts those who must interpret the law and apply it to a set of facts. We know what the law says—we can read it over and over. The question is—what does the law mean? This is exactly what judges face when asked to interpret the First Amendment.
Let’s go back to the courtroom where everyone is awaiting your decision. If you thought about looking at the precedents set by other judges who have looked at this municipal ordinance in the past, you are on the right track. Judges do look to prior decisions and the rationales employed by the judges in those earlier cases. But they generally don’t stop there. They may study as well the literal language of the law or regulation and may take the added step of researching the records of the debate and discussion surrounding its adoption by those who passed it in the first place. Judges often find this legislative history a helpful guide in interpreting and applying the language of the law to the unique set of facts in the cases before them. In addition, they may examine any other historical records that could cast light on the meaning and purpose of a law or regulation.
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.
With this knowledge, you as judge have a logical and justifiable reason to dismiss the charges against the boy (and perhaps admonish the arresting officer to be a little less zealous in enforcing this particular ordinance).
These same methods of interpretation can be applied to any law, including the First Amendment. A judge asked to decide a case concerning the constitutionality of a law regulating speech could gather evidence to assist in determining what the First Amendment means (we know what it says) and apply it to the facts of the present case by searching the records of the debates and discussions engaged in by the framers of the First Amendment in 1791.
Strange as it seems, however, such a search would be of little help. The actual discussions were conducted behind closed doors, and it appears the delegates were in enough agreement that the First Amendment should include the words “no law … abridging speech or of the press” that they did not leave a clear record of what they actually meant by those words.
With little specific evidence for determining the meaning of the First Amendment available, judges, lawyers and legal scholars have turned to the next best evidence—the historical context of the writing of the First Amendment. This means that those seeking to interpret the First Amendment rely both on their general knowledge about the events in revolutionary America in the late 1700s and their interpretations of historical evidence found in personal diaries, letters, essays and state constitutional provisions written by the framers of the First Amendment.
The outcome of this historical detective work, combined with judicial precedents and evolving judicial philosophies over a more than 200-year span, has produced the conclusion, now generally accepted by courts and legal scholars, that the framers of the First Amendment did not intend to protect all speech equally. This conclusion has led courts to differentiate categories or levels of speech which receive differing levels of constitutional protection. This protection can range from speech “fully” protected by the First Amendment—often referred to as “political speech” involving issues of public concern—to speech with no First Amendment protection at all—for example, speech judged to be pornographic or related to criminal activity, such as extortion or perjury.
Judges also have concluded that they have some constitutionally permitted leeway to differentiate among degrees and methods of “abridging speech.” For example, although laws and regulations banning speech or restricting its contents will generally invite great judicial skepticism, courts may be more willing to permit limits either on where or how speech occurs.
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.
On appeal of their convictions to the Supreme Court of the United States, both Schenck and Abrams cited the First Amendment as grounds for overturning the lower courts’ decisions, arguing that Congress could not constitutionally pass a law that punished mere speech in such a fashion. The Court upheld the convictions in both instances but, in the process, began the development of so-called “speech tests” to be applied in such cases.
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