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Eternally Vigilant: Free Speech in the Modern Era
By Geoffrey R. Stone
University of Chicago PressCopyright © 2002 Geoffrey R. Stone
All right reserved.
Bollinger: Let's begin with some general observations about the development of the First Amendment and their potential implications for the future. Two characteristics stand out as especially salient.
The first is the relative newness of First Amendment jurisprudence--a fact that is widely unappreciated. As each of the essays in this volume makes clear, the First Amendment--as we know it today--is an invention of the twentieth century. It begins in 1919, the first time in our history that the Supreme Court interpreted the meaning and reach of the principle of freedom of speech and press. In a trilogy of cases (Schenck, Frowherk, and Debs [case citations are provided at the end of the dialogue]), each involving individuals who dissented from the nation's involvement in World War I, the Court (in unanimous opinions written by Justice Oliver Wendell Holmes) announced the "clear and present danger" standard for the limits of free speech and gave us the memorable hypothetical of a person who falsely shouts "fire" in a crowded theater (to whom, of course, freedom of speech can be denied).
From that moment on, we have witnessed an extraordinary growth of case law, scholarship, and generalcommentary about the First Amendment. Hundreds of judicial decisions--minutely studied, analyzed, and criticized-- now constitute a highly intricate body of principles, doctrines, exceptions, and rationales.
A sign of this explosion of jurisprudence can be seen in the law school curriculum. For the past two decades, many (certainly the leading) law schools have offered an entire course just on the First Amendment. Indeed, if you or I were to return to full-time law teaching now, we might offer three courses involving the First Amendment: the basic course, a mass media law course, and a seminar on some aspect of freedom of speech and press such as broadcast regulation, obscenity, or free speech in cyberspace. The first point, then, is this: what we are talking about in this book--and certainly how we talk about it--is largely a creation of the twentieth century.
STONE: Your reference to Holmes's announcement of the "clear and present danger" standard and his use of the "false cry of fire in a crowded theater" hypothetical illustrate several important points about both the First Amendment and legal analysis more generally. As younote, it was in Schenck, the Supreme Court's initial decision on the meaning of the First Amendment, that Holmes first uttered these two phrases, and for the next half-century they shaped the course of First Amendment thinking. But in many respects they shaped our thinking in subtly misleading directions.
Where youstart thinking about a problem often determines where you end up. In this case, Holmes began his inquiry into the meaning of the First Amendment by seeking a simple example of what the guarantee of freedom of speech doesn't protect. In a way, this is logical. Given the seemingly absolute language of the Amendment ("Congress shall make no law . . . abridging the freedom of speech, or of the press"), it makes sense to test its potential reach by seeking a limiting hypothetical. Hence, the "false cry of fire" example. The key point Holmes was making with this example was that the Amendment can't possibly mean what it seems to say. And to prove that point, the hypothetical is both powerful and persuasive.
But Holmes then took the example a step further. "Why," he implicitly asked, "can the government punish the false cry of fire in a crowded theater?" If we can answer that question, we can derive a general principle that will give meaning to the seemingly overbroad text of the First Amendment. He deduces that the government may constitutionally punish the false cry of fire because such speech creates a "clear and present danger" of harm. Thus, that is the test for restricting speech under the First Amendment.
It is a shame that Holmes did not pursue his example yet another step further. Suppose, for example, someone yells "fire" in a crowded theater, but the shout is true--that is, suppose there really is a fire. In this case, the danger of people being trampled in the rush to the exits would be equally "clear and present," but surely we would not punish the speaker. In this case the value of the speech outweighs the harm it causes, even though the harm is "clear and present."
Thus, the real lesson of Holmes's hypothetical, which Holmes himself did not discern, is not that speech necessarily may be restricted when it creates a "clear and present danger," but (at least in this hypothetical) that it may be restricted when it creates a clear and present danger and it is false. That is a very different lesson that would have led us into a quite different set of questions about the constitutional importance of truth and falsity, why falsity may be relevant to the meaning of the First Amendment, and what other types of expression, like false speech, might also be subject to restriction. (It is also noteworthy that the example Holmes selected involves wholly nonpolitical speech. This, too, may distort the hypothetical. Indeed, the lesson might have been quite different had Holmes begun, for example, with speech critical of the government--the sort of speech actually involved in Schenck.)
BOLLINGER: This leads to my second observation about the modern history of the First Amendment: it has not involved a gradual and steady amassing of decisions and doctrines protective of expression as we know it now shortly after the turn of the century, but rather an ebbing and flowing of protection. Taken as a whole, the past eighty years reflect a series of deep internal disputes about the proper scope of constitutional protection for speech.
The three opening cases (Schenck, Frowherk, and Debs) rejected the free-speech claims of the defendants--and the most shocking outcome (to our contemporary free-speech sensibilities, anyway) was the conviction of Eugene Debs, the leader and presidential candidate of the Socialist Party who was sent to prison merely for delivering a public speech praising those who had illegally resisted the draft. During "times of war," Justice Holmes explained for the Court, we cannot expect the society to tolerate the same degree of opposition to national policies as we would in peacetime.
Just a year later, Holmes seemed to change his attitude about freedom of speech and joined Justice Louis Brandeis in a famous series of concurring and dissenting opinions that proposed a more extensive constitutional protection of speech and that laid the foundation for the extraordinary reach of the First Amendment today. During the 1930s and 1940s, the Holmes-Brandeis perspective gained adherence and momentum in various Court decisions. This was an era in which important doctrines according wider protection to dissident speech were first enunciated (e.g., the public forum doctrine and the doctrine of prior restraint).
Then came the 1950s and the post-World War II fears of racial and religious conflict and of a Communist conspiracy to overthrow democracies, and American democracy in particular. In Beauharnais v. Illinois, the Court held that "group libel," or what we now would call hate or racist speech, was unprotected. And in Dennis v. United States, a decision now reviled by the free-speech community, the Supreme Court upheld the convictions of the leaders of the Communist Party for advocating the violent overthrow of the government.
But this midcentury recrudescence of the Schenck et al. perspective was not to be the final word. The decade of the 1960s (and partly the 1970s) brought forth a series of foundational and highly speech-protective Supreme Court decisions that together now define free speech at the start of the new century. Advocacy of illegal conduct is protected until the point at which the speaker incites imminent and serious illegal action and such action is "likely" to occur (Brandenburg v. Ohio), with the upshot that the KKK and neo-Nazis can now march and speak pretty much as they like. The Court has also accorded significant protection to defamatory speech (New York Times v. Sullivan), indecent language in public places (Cohen v. California: "Fuck the Draft" on the back of Cohen's jacket worn in a public courthouse), "fighting words," obscenity, and other forms of offensive speech. Of course, the Court has not held that speech is "absolutely" protected, but the levels of protection established by the Court beginning in the 1960s went far beyond what many (perhaps even most) Americans regard as "reasonable." And this continues to be true to this day.
One important question raised in this book is whether there is any significance in this ebb and flow of First Amendment protection. What might it indicate about the stability over time of the current First Amendment perspective?
STONE: This evolution of First Amendment doctrine over the past eighty years can be seen as a reflection of larger changes in society and in the Supreme Court itself. Indeed, this evolution can be understood as a classic illustration of the very principles the First Amendment was designed to promote. As you note, in its initial efforts to make sense of the First Amendment, the Court inclined toward a rather crabbed view of its protections. The Court seemed (rather innocently) to believe that the government could effectively excise from public debate only those views that could be said to be "dangerous," without threatening free speech more generally.
But over time the Court came increasingly to understand that although each generation's effort to suppress its idea of "dangerous speech" (antiwar speech during World War I; syndicalist expression during the 1920s; Communist advocacy during the 1950s) seemed warranted at the time, each seemed with the benefit of hindsight an exaggerated and often pretextual response to a particular political or social problem. The Court came to understand that there is a natural tendency of even well-meaning citizens, legislators, and judges to want to suppress ideas they find offensive or misguided, to inflate the potential dangers of such expression, and to undervalue the costs of its suppression.
In effect, then, the Supreme Court itself was a splendid example of Holmes's "marketplace of ideas" in which competing views about the meaning and breadth of the First Amendment contested openly with one another and in which, with experience and reflection, the Court came to a more sophisticated, more subtle, and more speech-protective understanding of the meaning of the First Amendment.
As an illustration, it is worth tracing briefly the evolution of the law in the area of subversive advocacy--that is, speech that is prohibited because it can lead listeners or readers to commit unlawful acts against the established order. In ruling on prosecutions for "obstructing the draft" during World War I, the lower federal courts generally applied what was known as the "bad tendency" test. Under this test, virtually any criticism of the war could be punished because of its "tendency" to make people less supportive of the war, thus increasing the risk that draftees would refuse induction or that soldiers would be insubordinate. Such speech, in other words, has a "bad tendency."
As a counterpoint to this approach, federal judge Learned Hand proposed in his opinion in the case concerning the journal The Masses that the government should be permitted to punish speech on the claim that it may cause unlawful acts only if the speaker "expressly" incites such unlawful acts (that is, expressly urges people to refuse induction). Otherwise, Judge Hand concluded, the speech should be absolutely protected.
Shortly thereafter, in its decisions in Schenck, Frohwerk, and Debs, the Supreme Court essentially adopted the "bad tendency" approach, even though it used the phrase "clear and present danger." In a series of separate dissenting and concurring opinions from 1919 through 1927, Justices Holmes and Brandeis rejected this approach and argued in such cases as Abrams, Gitlow, and Whitney, in which the Court upheld the convictions of a series of political dissidents, that speech can be restricted in this context only if it creates a "clear and present" (meaning imminent) danger of a grave harm that "Congress has a right to prevent."
A quarter-century later, in its 1951 decision in Dennis v. United States, the Supreme Court finally embraced the clear and present danger standard in this area of the law, but then proceeded immediately to water it down. That is, the Court held that the degree of "clarity" and "presence" necessary for prohibition could go down as the "gravity" of the harm went up. Because Dennis involved the prosecution of the leaders of the Communist Party for allegedly conspiring to advocate the violent overthrow of the government-- obviously, a very "grave" danger, were it to occur--the Court was satisfied with a very attenuated showing of "clarity" and "presence," over the dissenting opinions of Justices Black and Douglas, who adhered to the Holmes-Brandeis version of "clear and present" danger. Most recently, in the Brandenburg decision in 1969, the Court held that speech can be restricted in this setting only if it expressly advocates unlawful conduct and it is intended imminently to cause such conduct and it is in fact likely imminently to cause such conduct. Thus, as Gerry Gunther has observed, the Court in Brandenburg combined the most speech-protective elements of Judge Hand's test in Masses with the most speech-protective elements of the Holmes-Brandeis version of clear and present danger to produce a highly speech-protective standard that has remained in effect ever since.
BOLLINGER: What you have just summarized is at the core of First Amendment debates, and certainly First Amendment classes, over the last eight decades, and no doubt will continue to be so in the future. Once you decide that not all speech, not even all speech on political issues, is absolutely protected, then youmust devise in words a "test" that the society--all the way from legislators to speakers to police to prosecutors to judges--can apply in specific cases. Not surprisingly, that has turned out to be remarkably difficult. Partly it's a matter of how much societal harm you are willing to endure from speech; partly it's a matter of how much you trust our institutions (the courts, juries, and so on) to implement these tests. Yourefer to Learned Hand's test in Masses, that speech is protected until the point where the speaker "expressly" urges the audience to violate the law. From his private correspondence at the time with Holmes, we know that Hand was concerned that Holmes's "clear and present danger" standard would be easily manipulated by intolerant judges and juries to imprison unpopular speakers. And, in fact, the early Supreme Court cases we have mentioned, which arose out of the widespread intolerance of the war and the subsequent period of the so-called Red Scare, could be read as proof of the validity of that concern. Hand, accordingly, wanted a test that was more hard edged, less easily twisted by the wish to persecute dissenters. So he proposed to limit the power of the state to intervene only when the speech at issue expressly incites others to violate the law.
But this standard has serious limitations. It means that feckless speakers, those who though explicitly urging illegality have no chance of persuading anyone to do so, may be punished. It further means that truly dangerous speakers who are also clever enough to employ innuendo and irony for their illegal ends will be fully protected and free to accomplish those harmful ends (the so-called Marc Anthony problem). One inevitably begins to wonder whether the vagueness problems of the "clear and present danger" standard are less troublesome. I suspect that is why the Hand test in Masses did not survive the test of time, and I am doubtful that if, as you say, it is incorporated into the contemporary test articulated in Brandenburg (and I'm not so sure it is) it will survive in that form either.
Again, all of this raises the question whether our current First Amendment jurisprudence is as fixed and secure as most of us seem to think. The recency of the whole development--that is, an eighty-year continuing evolution, as opposed to an accretion of interpretations stretching over centuries, which is what most people (most nonlawyers, anyway) believe has happened-- indicates less of a grounding in historical experience. For the foreseeable future, therefore, it is more vulnerable to the criticism that what has occurred up to this point is the judgment of just one, or perhaps, two generations, and not the more unchallengeable judgment of the ages.
The risk of the current jurisprudence being jettisoned in the future increases when one adds in the fact of the ebbing and flowing of judicial protection during this eighty-year period. And then, too, very few of the cases decided during this period have, in fact, ever been expressly overruled: Schenck, Debs, Beauharnais, and Dennis all remain on the books as potentially viable precedents, even though most First Amendment scholars today assume that they have been implicitly overruled.
Moreover, because each of those decisions arose during what were thought at the time to be exceptional circumstances (a world war or an international communist conspiracy), there is further reason to be concerned about their being revived at another point in the future when "exceptional circumstances" are perceived to exist again. It is sometimes said that freedom of speech is counterintuitive and, therefore, perpetually vulnerable to being abandoned. But our current jurisprudence may have some built-in vulnerabilities beyond that.
STONE: Earlier, I offered a very rosy view of the evolution of First Amendment jurisprudence as an illustration of the benefits of a system of freedom of expression. There is, however, a more cynical view of this process. It is noteworthy that in each of the major confrontations with the meaning of free speech--during World War I, during the 1920s, and during the Communist era--the Court adopted an interpretation of the First Amendment that was sufficiently flexible to enable it to uphold the restrictions at issue.
Thus, during World War I the Court enunciated the seemingly speech-protective "clear and present danger" test, but then construed the test in such a way as to uphold the convictions of those who protested against the war and the draft. In the 1920s, the Court looked back on the World War I cases with some dismay, and embraced a more speech-protective interpretation of the First Amendment, an interpretation that presumably would have reversed the convictions of the earlier era, but that enabled the Court to uphold the convictions of the syndicalists. In the 1950s, the Court strengthened its protection of free speech in such a way as to call into question both the World War I cases and the syndicalist decisions of the 1920s, while enabling it to uphold the convictions of the leaders of the Communist Party.
So, on this more cynical view, one might say that the Court learns just enough to correct the mistakes of the past, but never quite enough to avoid the mistakes of the present. On the other hand, as younote, since the 1960s the Court has adopted a highly speech-protective set of doctrines that has thus far withstood all of the pressures to weaken its protections of the First Amendment, most notably the efforts to suppress the Pentagon Papers and to allow the regulation of "racist" and "sexist" expressions.
I agree, however, that the current consensus is far from secure. Freedom of speech is, indeed, "counterintuitive," and as Justice Holmes once observed, "persecution for the expression of opinion" is "perfectly logical." If we deeply believe that communist or racist or unpatriotic expression is wrongheaded, offensive, or dangerous, it is perfectly "logical" to express our "wishes in law and sweep away all opposition." It requires a deep faith in the underlying premises of the First Amendment, and a deep skepticism about the capacity of the government to decide what ideas are "wrongheaded," "offensive," or "dangerous," to resist the temptation to censor. Since the 1960s, the Supreme Court has erected strong doctrines to protect against those temptations. But they are far from impenetrable.
Excerpted from Eternally Vigilant: Free Speech in the Modern Era by Geoffrey R. Stone Copyright © 2002 by Geoffrey R. Stone. Excerpted by permission.
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