Brown v. Entertainment Merchants Ass'n

Freedom of Speech and of the Press

In addition to religious freedom, the early colonists of America desired greater freedom of speech and of the press as well as the related right to protest against the government. They realized that freedom to criticize government and to be exposed to all manner of opinion was the greatest tonic against tyranny. This is expressed in terms of preserving a “free marketplace of ideas.” Even so, the view that the First Amendment provides absolute freedom of speech has never been accepted by a majority of the Supreme Court, despite the fact that the language of the First Amendment is absolute in its injunction that: “Congress shall make no law. . . .” Congress has made laws restricting freedom of speech, and these have been upheld by the Supreme Court.

The Sedition Act and the Espionage Act were passed during World War I. In Schenck v. United States, 249 U.S. 47 (1919), the Supreme Court found a pamphleteer guilty under the Espionage Act. His crime was sending literature to draft-age men encouraging them to resist military service. Without a doubt, this was restriction of the right of speech and press, but the Court decided that the First Amendment protection was not absolute, especially in the midst of a war. In Abrams v. United States, 250 U.S. 616 (1919), the Court also upheld a conviction against defendants whose pamphlets opposed the American government's attempts to stop the Communist government created by the Russian Revolution. In Gitlow v. New York, 268 U.S. 652 (1925), the Court allowed a conviction for the crime of distributing literature that urged labor strikes. And in Whitney v. California, 274 U.S. 357 (1927) a woman who merely attended a meeting of the Communist Party was convicted of violating a state law criminalizing the teaching or support of unlawful force and violence to bring about change.

The gravity of the First Amendment guarantees of free speech and press, as we know them now, had yet to be recognized in the early part of the 20th century. Even in the 1950s and 1960s, amidst continued fear about Communism, the Court declined to protect unpopular political speech. For example, in Dennis v. United States, 340 U.S. 887 (1950), the Supreme Court upheld the conviction of a man for participating in the formation of the Communist Party of the United States.

A more contemporary example of the threat to civil liberties is the Patriot Act, which passed with little debate after the World Trade Center attack of September 11, 2001. The statute gives the government broad powers to investigate the actions of citizens, including, for example, the kind of material

they read. To facilitate these investigations, it allows wiretaps and searches that previously would have required more extensive justification. The Act includes a “sunset” provision requiring reconsideration after some time has passed. Some sections expired in 2015 but were then renewed. Many civil libertarians feel the Patriot Act is a very dangerous tool in the hands of government. Benjamin Franklin, a signer of the Declaration of Independence, wisely reminded his contemporaries that “people willing to trade their freedom for temporary security deserve neither and will lose both.”

The Court has continued to struggle to come up with a formula for deciding which speech would be protected and which would not. Justice Hugo Black, most notably, argued for an absolutist interpretation in the middle part of the 20th century. Instead, however, the Court tried out any number of tests.

One famous version was the “clear and present danger” test proposed by Justice Oliver Wendell Holmes in the Schenck case. He gave the example of someone shouting “Fire!” in a crowded theatre, something that would likely set off panic among the patrons. “The question in every case,” Holmes said, “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.”

Justice Louis Brandeis, concurring in Whitney, emphasized that the speech should be protected “unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” In 1969, the Court embraced a different formula in Brandenburg v. Ohio, 395 U.S. 444 (1969). It announced a three part test in cases where lawless conduct might follow from speech. The speech would be protected unless (a) the speaker intended to incite lawless action; (b) it was likely to produce such imminent action; and (c) objectively it did encourage this action. The Supreme Court additionally insists that restrictions on speech be no broader than necessary to achieve the government's legitimate goal. This is often referred to as the “least restrictive means” test. Finally, the law must be neither vague nor overbroad.

The most difficult cases for the government occur when it wishes to stop speech or restrict the press before publication. This is known as “prior restraint,” and is viewed very suspiciously by the Supreme Court. In New York Times Co. v. United States, 403 U.S. 713 (1971), the government wanted to stop publication of secret government documents concerning the Vietnam War. The war was still underway, but someone (later revealed to be one of the analysts who worked on the project) leaked the documents — 7,000 pages in all — to the press. The government asked the Court to restrain publication, arguing that it would do irreparable damage to the national interest. In a per curiam opinion, the justices concluded that the Nixon Administration had failed to meet its very heavy burden of proof. Justice Black in a concurring opinion wrote as follows:

"In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do."

Not all forms of expression are included within the guarantees of speech and press freedom. Among the forms of unprotected speech are what the Court has called “fighting words,” i.e., insulting or provocative language that incites a physical response. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court upheld the conviction of a Jehovah's Witness for calling a police officer a racketeer and Fascist on a public street in violation of a state law aimed at maintaining public order. Chaplinsky had been distributing religious literature when a rowdy crowd began to form, causing the police officer to ask Chaplinsky to come to the police station. The Court found the statute to be narrowly drawn and interpreted to prohibit only those words spoken face-to-face in a manner likely to result in a disturbance of the peace.

Likewise, obscenity has also been considered outside the realm of protected speech. Such cases turn on the question of whether the material is, in fact, obscene and, if it is obscene, to whom. The Supreme Court has created tests that attempt to turn this into an objective inquiry, but — no matter what the test may be — obscenity, in the end, is in the eye of the beholder. Justice Potter Stewart became exasperated with the attempt to define obscenity but insisted “I know it when I see it.” The Court has also spoken of “contemporary community standards,” suggesting that each local community has the right to establish its own benchmarks of decency within certain parameters. That notion is less-than- helpful in a time when publications are distributed nationally and is even less enlightening in the global age of the Internet. Are the standards of the least tolerant community to control what the entire nation may see?

In the Brown case, the Court considered whether a law to protect children from violent video games was constitutional.

Supreme Court of the United States

180 L. Ed. 2d 708, 564 U.S. 786, 2011 U.S. LEXIS 4802, 131 S. Ct. 2729

No. 08-1448

2011-06-27

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