The headline of the article in the Louisiana newspaper read, “State Legislature continues campus free speech battle” as the state legislature’s House Education Committee approved a bill limiting a state university’s ability to set time, place, and manner restrictions on First Amendment speech and assembly. The bill permitted Louisiana universities to regulate speech activities and designate certain areas for free speech so long as the rules are neutral in terms of the speakers’ viewpoints and reasonably related to educating students.
The legislation came in the wake of litigation across the United States challenging the legality of “free speech zones,” which are designated areas for protest and public discourse. Such areas, designated at many colleges, public and private, are where administrators want students to exercise their free-speech rights to avoid interrupting the campus flow. However, many legal experts believe that attempts to designate these zones and restrict speech in other areas fare poorly in court challenges.
State legislatures, including those in Colorado, Tennessee and Utah, have banned free-speech areas, while states such as Arizona, Missouri, and Virginia had previously outlawed them. There is no national consensus towards these free speech zones. Other states are grappling with questions such as:
– What speech can be regulated?
– Can we stop people from speaking and expressing their views? and
– What are the ramifications of allowing people to speak freely and without restriction?
In this first module of our video-course on the First Amendment and freedom of speech, we introduce the basic tenets of the First Amendment’s free speech guarantee. We will examine what the First Amendment guarantees, and we will then delve into the purpose and the rationale behind the free speech guarantee. We also will look at what the First Amendment covers and how the government regulates the content of speech and the time, place, and manner of its expression.
First Amendment Guarantees
Many people associate the First Amendment with freedom of speech and expression alone. However, there are four other constitutional rights in the First Amendment. These are:
- the right to exercise religion freely;
- the right to a free press;
- the right to assemble peaceably; and
- the freedom to petition the government for redress of grievances
All of these are closely related to freedom of speech and expression and actions challenging government action are often brought on multiple First Amendment grounds. For example, wearing a religious symbol may be protected by freedoms of expression and religion, holding protest rallies outside the White House may be protected by freedoms of speech, assembly and petition and publishing a newspaper article may be protected by freedoms of speech and press.
The First Amendment’s free speech provision finds its roots in “liberal” political philosophy. The term “liberal” in this context refers not to left wing politics, but, rather, to individual political and civil rights and equal opportunity. Individual liberty is the primary political goal, and liberal political philosophy, in this sense, is part of the foundation of the United States government.
The freedom of speech and expression is one of the seminal values of the American constitutional order. This First Amendment guarantee remains essential for the maintenance of a free society that values enlightenment and the free flow of ideas. Free speech is essential for democracy because there always will be competing ideas. Robust debate helps people present, argue on behalf of and choose among those ideas, which, in turn, advances democracy. This idea, known as “the marketplace of ideas,” was elaborated on by Justice Oliver Wendell Holmes in his dissent to the 1919 Supreme Court decision, Abrams v. United States. He wrote:
“the ultimate good desired is better reached by free trade in ideas —that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
Regulating Freedom of Speech
On its face, the First Amendment appears clear: “Congress shall make no law…abridging the freedom of speech.” Of course, the law is more nuanced than this. Despite the absolute nature of the wording, over the course of 200 years, the Supreme Court has developed an interpretation of the First Amendment that allows certain restrictions on free speech.
The Court has used the First Amendment as both a shield and a sword. The key to this approach is the definition of “speech.” Speech is more than just what a person says. Freedom of speech includes the right to wear clothing to protest or engage in symbolic speech, to use offensive words and phrases to convey political messages and even to contribute money to political campaigns. Judicial precedent has carved out categories of speech and levels of protection within those categories. The two overarching categories are protected speech and unprotected speech, the latter of which means speech that is outside the scope of the First Amendment. Categories of unprotected speech include “fighting words” or speech that is inherently likely to provoke violent reaction, libel, true threats, and obscenity. We’ll explore categories of unprotected speech later in the course. For now, we’ll focus on speech that is generally protected. Even though protected, nearly all speech is subject to at least some level of regulation.
To determine the constitutionality of a law regulating speech, a court must examine whether a law is content-based or content-neutral. This significantly impacts the test to determine a law’s constitutionality.
A content-based regulation is a restriction on speech or expression that is based on the substance of the message being communicated, rather than the method or way the message is being expressed. For instance, laws that forbid or punish criticizing the government or flag-burning are laws that regulate content. Other content-based restrictions include those that prohibit publication of national security secrets and those that punish hate speech. Content-based restrictions must pass strict scrutiny to be allowed to stand.
To pass a strict scrutiny analysis, the government must prove two elements:
(1) The regulation is the narrowest means necessary to
(2) achieve a compelling government interest.
Strict scrutiny is a very difficult standard for the government to meet and it is rare for the Supreme Court to uphold laws subjected to strict scrutiny. The analysis is fact-intensive, but some general principles help guide courts. First, a law restricting speech is not narrowly-tailored if it restricts significantly more speech than is necessary to achieve the government’s compelling interest.
In one Supreme Court case, Simon & Schuster v. Members of the New York State Crime Victims Board, the Court found unconstitutional New York’s “Son of Sam” law that ordered criminals to turn over to the public for distribution to crime victims any proceeds that they receive from the sales of their stories. The Court ruled that the state had not shown that its law was narrowly tailored to the state’s objective of compensating victims because the law was over-inclusive. It was over-inclusive because it applied to works authored by a person convicted of a crime on any subject and so did not always further victim compensation.
Addressing the second portion of the strict scrutiny analysis- to show a compelling government interest- the government must demonstrate, using “simple common sense,” that the interest is important and crucial to achieving a desired governmental goal.
An important Supreme Court case that defines compelling government interest is the 1988 decision, Boos v. Barry. There, the Court examined a Washington, D.C. statute that banned people from displaying signs with messages that tended to bring foreign governments into “public disrepute” within 500 feet of the country’s embassy. In Michael Boos’ case, the law prohibited him and his fellow protestors from displaying signs criticizing the Soviet Union on front of the Soviet embassy. The Court held that the District of Columbia’s justification for the statute must be subjected to strict scrutiny because the statute regulated the expression of protestors’ viewpoints, a content-based restriction. The Court held that the prohibition failed to pass strict scrutiny because the government’s arguments that the limitations were necessary to keep peace and security were not compelling enough to validate the sign ban.
Political Speech Enjoys Wide Protection
As the Boos case demonstrates, strict scrutiny is most often applied to regulations on political speech. Political speech is any conduct or words that are intended to express support or dissent for any political and social issue, position or candidate. One of the most famous cases in the area of political speech is Cohen v. California, more familiarly known as the “F*** the Draft” case. In 1970, 19-year-old department store worker Paul Cohen expressed his opposition to the Vietnam War by wearing a jacket embroidered with “F*** THE DRAFT. STOP THE WAR.”
Cohen was charged under a California statute that prohibits “maliciously and willfully disturbing the peace and quiet of any neighborhood or person by offensive conduct.” Cohen was found guilty and sentenced to 30 days in jail. He challenged the conviction up to the Supreme Court, arguing that California’s statute violated his freedom of expression.
The Court agreed with Cohen and struck down the law, ruling that it violated the First Amendment. Justice John Marshall Harlan famously wrote in his opinion, “One man’s vulgarity is another’s lyric.” The California law had to be struck down because, if it remained on the books, “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”
The intertwined issues of vulgarity and political speech has not gone away. If anything, it intensified in the wake of the 2016 election of Donald Trump as the 45th President of the United States. In November 2017, a Texas woman created a giant bumper sticker that read “F*** Trump and F*** You for Voting for Him!” The Republican sheriff serving Fort Bend County, an area southwest of Houston, claimed that the profane banner put a bad taste in locals’ mouths, drawing “numerous calls regarding the offensive display.” He demanded the driver turn herself in to “discuss it.” The sheriff argued that a prosecutor told him he could charge the driver with disorderly conduct, which Texas defines as using “abusive, indecent, profane, or vulgar language in a public place,” when the language “by its very utterance tends to incite an immediate breach of the peace.”
Weeks after she was first seen driving around with the bumper sticker, the driver, Karen Fonseca, was arrested for an outstanding warrant for identity theft charges, but she claimed it was because of her anti-President Trump views. She was arrested in July, 2018, and was arrested again for resisting during a traffic stop. However, as of early 2019, Fonseca has not been charged with anything stemming from her bumper sticker display.
A less stringent test is applied to analyze content-neutral laws, which are those that don’t address the content of that expression. Instead, these laws govern the “time, place, and manner” of the speech and so are often referred to as “time, place and manner” restrictions. Content-neutral laws limit communication without taking into account the message being conveyed. These regulations are subject to lesser scrutiny than content-based restrictions because these regulations are not necessarily designed to curtail public discourse. Content-neutral restrictions are constitutional if the government demonstrates that the restrictions:
(1) are content neutral;
(2) are serving an important government interest; and
(3) leave open ample, alternative channels of communication
In United States v. O’Brien, the defendant burned his draft card on the steps of a courthouse to protest the Vietnam War. He was prosecuted under the Selective Service Act and convicted for willfully destroying his draft card. The Supreme Court upheld the federal statute and reasoned that it was a valid time, place, and manner restriction on speech. It reasoned that the Act’s prohibition on burning draft cards furthered a legitimate government interest, to ensure a “smooth and proper functioning of the system that Congress has established to raise armies.” Additionally, the Court determined that even though the Act prohibited one type of speech, O’Brien still had numerous alternative means to communicate his opposition to the Vietnam War that didn’t involve destroying his draft card.
Sometimes, a law regulates speech to the point that it favors one point of view or opinion over another. “Viewpoint discrimination” is virtually always unconstitutional. The First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas over others.
In the 2017 Supreme Court case, Matal v. Tam, the musical band The Slants, led by vocalist Simon Tam, attempted to trademark its name with the U.S. Trademark Office. The government agency denied its application because the band’s name was considered disparaging towards “persons of Asian descent.” The denial cited the Disparagement Clause of the Lanham Act of 1946, the law that covers trademarks and other intellectual property issues, and prohibits trademarks that “consist of or comprise immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The Supreme Court determined that the law’s “disparagement clause” ran afoul of the First Amendment because it banned intellectual property that the federal government viewed to be offensive, immoral or deceptive. The government may not take a position that certain viewpoints are unacceptable or not worthy of government protection. Note that viewpoint discrimination may be used to protect even immoral or dangerous ideologies. For example, while many European countries criminalize Holocaust denial and racist hate speech, it is unlikely that laws banning these expressions would pass muster in the United States.
 Jeremy Bauer-Wolf, “The Death of College Free-Speech Zones,” https://www.insidehighered.com/news/2018/02/02/experts-states-likely-keep-abolishing-free-speech-zones., (February 2018).
 Edward Eberle, “The Architecture of First Amendment Free Speech,” 2011 Mich. St. L. Rev. 1191, (2011).
 Martin Edelman, Democratic Theories and the Constitution (State Univ. of N.Y. Press 1984).
 Abrams v. United States, 250 U.S. 616 (1919).
 Blake Norvell, “The Modern First Amendment and Copyright Law,” 18 S. Cal. Interdis. L.J. 547, (2009).
 Cohen v. California, 403 U.S. 15 (1971).
 Simon & Schuster v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991).
 Burson v. Freeman, 504 U.S. 191 (1992).
 Boos v. Barry, 485 U.S. 312 (1988).
 Texas Penal Code § 42.01 (a)(1).
 United States v. O’Brien, 391 U.S. 367 (1968).
 Matal v. Tam, 137 S. Ct. 1744 (2017).
 See National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).