Freedom of Speech: Modern Period (1917 – Present)

Introduction

The U.S. Supreme Court did not decide a case presenting a significant First Amendment free speech question until 1919. Since that time, however, the Court has decided a substantial number of free speech cases and in the process has developed a vast and complex array of legal doctrine that delineates the contours and dimensions of expression protected by theFirstAmendment. But not all of this doctrine is of equal importance. Consequently, the most prominent and significant doctrinal developments contained in the Court’s post- 1919 free speech decisions will be analyzed here.

In particular, the essay examines case law in which the Supreme Court developed doctrines that allow the government, in limited circumstances, to use the Criminal Law to punish individuals for engaging in certain types of expression—especially that which is harshly critical of the current government and its policies. How protective the law is toward such speech is, in many respects, an accurate barometer of how protective the law is of expression in general. As Farber (2003, p. 57) explains: ‘‘[e]ver since governments have existed, they have used force to suppress their opponents and quell criticism. Tolerance for enemies of the established order, then, is the acid test for free speech.’’

In addition, this essay examines how the Court has developed what might be labeled a neutrality theory of the First Amendment—a theory premised on the idea that a democratic government should be significantly restricted from favoring particular ideas or viewpoints. The neutrality theory posits that constitutional democracies governed by free speech principles should be limited from coercing individuals into subscribing to government-endorsed ideas or views, as well as from enacting policies that systematically favor the private expression of such ideas and views. Nearly all aspects of the Court’s current free speech doctrine—particularly that pertaining to time, place, and manner regulations—have been strongly influenced by the Court’s deep aversion to content- and viewpoint-biased policies. Indeed, one could easily argue that content and viewpoint neutrality theory has become the central cog in the modern Supreme Court’s understanding of the First Amendment—and that Amendment’s place in the broader American constitutional regime.

Expression and the Incitement of Criminal Activity

The World War I Era

In the wake of WWI, the U.S. Supreme Court heard several cases involving First Amendment free speech issues. Not surprisingly, these cases dealt with leftwing, anti-war activists who had criticized foreign and defense policies of the U.S. government during WW I. In the first (and most famous) of these cases, Schenck v. United States (1919), the Court addressed whether the free speech clause prohibited the government from prosecuting the expressive activities of anti-war protesters pursuant to the Espionage Act of 1917. Charles Schenck had been charged with ‘‘attempting to cause insubordination. . .in the military and naval forces of the United States’’ (ibid) by mailing circulars critical of the draft to men who recently had been drafted. The document, which drew on the Thirteenth Amendment’s prohibition against involuntary servitude, asserted that a conscript was ‘‘little better than a convict’’ and constituted ‘‘despotism in its worst form and [was] a monstrous wrong against humanity in the interest of Wall Street’s chosen few’’ (ibid). However, although the document asked its recipients to ‘‘not submit to intimidation’’ and to ‘‘assert [their] rights,’’ it did not specifically ask anyone to act violently or to violate the law (ibid).

A unanimous Supreme Court held, in an opinion written by Justice Oliver Wendell Holmes, that Schenck’s conviction did not violate the First Amendment. Although the First Amendment does more than simply prohibit prior restraints on private speech, the Court concluded that it does not provide absolute freedom to expressive activity. Instead, the Court held that the government could regulate speech that presents a ‘‘clear and present danger’’ of bringing ‘‘about the substantive evils that Congress has a right to prevent’’ (ibid). Justice Holmes, having had significant experience with the Criminal Law as a judge on the Massachusetts Supreme Judicial Court, compared Schenck’s expressive activities to the law of criminal attempts. He explained that the government has a right to intervene and punish individuals for expressive activities if those activities are dangerously close to eliciting illegal activities (such as refusing to report for duty when drafted). Justice Holmes noted that it ‘‘is a question of proximity and degree’’ (ibid) as to when the government can intervene and punish individuals on the grounds that they are inciting criminal activity. Moreover, whether the government’s intervention is constitutional will depend on the context in which the expression occurs. As Justice Holmes explained, ‘‘the character of every act depends upon the circumstances in which it is done,’’ and that Schenck’s expression would have been protected by the First Amendment ‘‘in many places and in ordinary times’’ (ibid).

One week after the Schenck decision was announced, the Court handed down decisions in Frohwerk v. United States and Debs v. United States, both of which also involved prosecutions under the Espionage Act of 1917. In Frohwerk, a unanimous Court upheld the defendant’s conviction of conspiring to disrupt the war effort by disseminating material critical of the national government’s draft policy in a Missouri-based German language newspaper. Similarly, a unanimous Court upheld the conviction of Eugene Debs on the grounds that a speech he had delivered to the 1918 state convention of the Ohio Socialist Party constituted a clear and present danger to the nation’s war effort. Justice Holmes approvingly explained in Debs that the trial judge had instructed the jury to convict Debs only if ‘‘the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service. . .and unless the defendant had the specific intent to do so in his mind.’’ Although the Court interpreted the statute to impose a scienter requirement, this and later cases often assumed that such requirements were satisfied if the speech in question had a reasonable tendency to produce the substantive harm that the government wanted to prevent.

In both Frohwerk and Debs the Court concluded that the government had satisfied the requirements of the Clear and Present Danger Test. However, as the quote from Justice Holmes’ Debs opinion illustrates, it is certainly questionable whether the Court was sufficiently demanding in its evaluation of the nexus between the speech act for which the defendants were convicted and the illegal action (that is, substantive harm) that the government was seeking to prevent. For example, Justice Holmes indicates that the nexus was satisfied in Frohwerk because ‘‘it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame.’’ Quite simply, this language does not have much in common with the notion that the expression must present a ‘‘clear and present danger’’ of producing illegal activities.

It was not until the Court decided Abrams v. United States (1919) that we find a member of the Court casting a dissenting vote in favor of free speech. In Abrams, seven members of the Court cited Schenck and its progeny and concluded that Abrams could be punished under the amended Espionage Act of 1918. Abrams had distributed circulars on the streets of New York City and was charged with acting to ‘‘‘incite, provoke, and encourage resistance to the United States’ during World War I, and of conspiring ‘to urge, incite, and advocate curtailment of production [of] ordnance and ammunition, necessary [to] the prosecution of the war’’’ (Sullivan and Gunther, 2003, p. 19). The Abrams majority concluded that Abrams intended to disrupt the U.S. military forces because that would be the natural tendency of his expression, and that ‘‘[m]en must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.’’ So much for the idea that a scienter requirement would be a major impediment to government prosecutions of speech acts.

The dissenting votes in Abrams were cast by Justices Brandeis and Holmes. In this instance, we see the justices heretofore most responsible for the development of the Clear and Present Danger Test conclude that the majority erred in its application. First, Holmes and Brandeis argued that the majority’s conception of what constitutes the requisite level of intent under the statute was not sufficiently demanding. Instead, Holmes argued that intent to disrupt the war effort by curtailing the production of munitions is satisfied only if the ‘‘aim to produce it is the proximate motive of the specific [expressive] act.’’ Second, the dissenters argued that the government could prosecute only those expressive acts that ‘‘present danger of immediate evil or an intent to bring it about,’’ neither of which, they believed, was present in this case. As Holmes explains, ‘‘Nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so’’ (Abrams). Some scholars argue that Holmes modified his views about the requirements of the Clear and Present Danger Test—by requiring that the danger be immediately and dangerously proximate to the substantive harm targeted by the statute—between the time the Court decided Schenck, Frohwerk, and Debs and the time it decided Abrams (Sullivan and Gunther, 2003, p. 23–24).

As the Supreme Court was developing the Clear and Present Danger Test, lower federal court judge Learned Hand was developing his own test for when the government could prosecute individuals for inciting illegal activity. According to Hand, such convictions could occur only in those instances when the speaker ‘‘directly advocated’’ illegal activity (Masses Publishing Co. v. Patten). Hand rejected contextual tests that allowed the government to regulate expression that had a tendency to incite others to engage in illegal activity. Hand did not think that the Justice Holmes’s Abrams version of the Clear and Present Danger Test provided adequate protection for expression. Hand feared that contextual tests of the ilk used in Schenck and Abrams were too easily manipulated by prosecutors and judges, especially during periods of social and political unrest. Instead, Hand believed that direct advocacy of law violation was the appropriate standard. Hand explained that as long as ‘‘one stops short of urging upon others that it is their duty or their interest to resist the law, [then] it seems to me one should not be held to have attempted to cause its violation’’ (Masses). This test, which came to be known as ‘‘Hand’s ‘incitement’ approach’’ (Sullivan and Gunther, 2003, p. 28), was not used by the Supreme Court until 1969, when the Court incorporated it into the modern test for incitement of illegal activity.

The Red Scare Era

During the red scare period of U.S. history, the Court decided several additional cases involving speech and criminal attempts and conspiracies. The most famous of these is Gitlow v. New York (1925). Benjamin Gitlow, who was involved with the publication of The Left Wing Manifesto, was prosecuted for violating a New York statute that, in part, authorized the criminal punishment of one who ‘‘advises or teaches the duty necessity, or propriety of overthrowing or overturning organized government by force or violence’’ (Sullivan and Gunther, 2003, p. 29). Although the majority opinion explained that ‘‘[t]here was no evidence of any effect resulting from the publication and circulation of the Manifesto’’ (ibid), the Court nevertheless upheld Gitlow’s conviction. The Court noted that this case was different from the 1919 free speech cases, because Gitlow was charged with violating a state law that expressly forbade the use of certain language and the expression of certain ideas. In contrast, the 1919 cases involved prosecutions under statutes that only prohibited certain actions (for example, disrupting the war effort or the production of munitions); unlike the law involved in Gitlow, the 1919 statutes did not codify certain language or ideas that could not be articulated. The defendants in the 1919 cases were prosecuted because their expression was deemed to constitute an attempt to complete one of the acts prohibited by the Criminal Law.

As a result of this difference, the Court argued that it should be deferential toward the state legislature and its decision to statutorily proscribe certain types of expression. Consequently, the Gitlow majority rejected the notion that the Clear and Present Danger Test was applicable, and instead developed what came to be known as the ‘‘Bad Tendency Test.’’ In language quite similar to that used by Justice Holmes in Debs, the majority explained that a ‘‘single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration,’’ and that the government can legitimately punish the defendant’s ‘‘specific utterance. . .if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent’’ (Gitlow). The Gitlow majority did not require the government to provide evidence demonstrating that the Left Wing Manifesto caused anyone to take steps toward overthrowing the government by force and violence or that the publication created a clear and present danger of inciting individuals to take such steps. The fact that Gitlow had engaged in expression that the state legislature considered dangerous was enough to sustain his conviction. Indeed, given Gitlow’s expression, his conviction probably would have been upheld by the Court if it had used Judge Learned Hand’s direct advocacy test—a test that Hand thought was more protective of speech than the Clear and Present Danger Test. In any event, Gitlow did expand speech protections in the United States by holding—for the first time—that free speech was a fundamental right entitled to protection from state governments by the Fourteenth Amendment.

In their dissenting opinion in Gitlow, as well as their concurring opinion in Whitney v. California (a 1927 case in which the Court upheld convictions pursuant to a California statute similar to the one involved in Gitlow), Justices Holmes and Brandeis argued that the Court should apply the Clear and Present Danger Test in all free speech cases involving the incitement of criminal activity. The two justices, who had worked since Abrams to strengthen the speech protective capacities of the Clear and Present Danger Test, believed that only that speech that had a high probability (clear) of producing imminent (present) violations of serious laws (danger) could be subjected to criminal punishment by the government. In his concurring opinion in Whitney, Justice Brandeis explained that ‘‘[w]henever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.’’

The World War II and McCarthy Era

Despite the economic and military crises faced by the United States in the two decades after Gitlow, the Supreme Court became, somewhat surprisingly, more protective of free speech. For example, in De Jonge v. Oregon (1937) and Herdon v. Lowry (1937) the Court reversed, on free speech grounds, convictions under state laws prohibiting individuals from organizing to incite or attempting to incite others to violate the law (Sullivan and Gunther, 2003, p. 39). In those cases, as well as others (see Thornhill v. Alabama and Cantwell v. Connecticut), it seemed that the Court was using a test similar to the Clear and Present Danger Test. What is not clear is whether this shift toward speech protection was because the ideological predispositions of the justices toward free speech issues were becoming more liberal or whether the Court was beginning to see its role as one revolving around the protection of rights essential for democratic government (see footnote four, Carolene Products Co. v. United States). Whichever the case, free speech reached a new high water mark in the late 1930s and throughout the 1940s.

The case that best captures this libertarian perspective toward freedom of speech came near the end of this period in Terminiello v. Chicago (1949). Father Arthur Terminiello, a Catholic priest who one might characterize as a Christian Nationalist, was charged by municipal authorities for disturbing the peace as a result of a speech he delivered to a capacity crowd of 800 sympathizers in a Chicago auditorium. Terminiellos’s speech was filled with negative references to racial, ethnic, religious, and political groups, and for these and other reasons relating to his views, a hostile crowd of more than 1,000 people had convened in the streets outside the auditorium. The crowd, which Terminiello on several occasions disparaged in his speech, soon grew restive and began throwing stones, bricks, and stink bombs. The police feared that they were losing control of the situation and arrested Terminiello for inciting the crowd to act disorderly.

Over four dissenting votes—and a passionate dissenting opinion from Justice Jackson—five members of the Supreme Court overturned Terminiello’s conviction. Writing for the majority, Justice Douglas argued that speech is ‘‘protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’’ Given the circumstances of this case, especially the fact that violent acts had already begun to occur—seemingly as a result of Terminiello’s speech—the majority’s conclusion demonstrates that its members subscribed to something akin to Justice Holmes and Brandeis’s Abrams-Gitlow-Whitney conceptualization of the Clear and Present Danger Test. Thus, entering the 1950s, it seemed that the Court was poised to be very protective of free speech claims.

But that was not to be. As a result of rapid turnover in the Court’s membership, and the rise of Joseph McCarthy’s efforts to expose alleged Communist sympathizers within the United States, the Court became much less inclined to question government regulation of expressive activities. For example, in 1952, the Court upheld a disorderly conduct conviction for expressive behavior that, compared with the circumstances in Terminiello, seemed quite tame (Feiner v. New York, 1951). Soon thereafter, the Court indicated that it was in no mood to protect individuals who were critical of the government and who were expressly advocating that it be violently overthrown and replaced with a socialist state.

The preeminent case of this era is Dennis v. United States (1952). In Dennis, the Court upheld the Smith Act prosecution of Eugene Dennis and other upperechelon members of the U.S. Communist Party. The Smith Act, passed by Congress in 1940, was similar to the New York statute upheld by the Court in Gitlow. However, the one distinction was that the Smith Act made it ‘‘unlawful for any person to attempt to commit, or to conspire to’’ advocate—or organize for the purpose of advocating—the overthrow of the U.S. government by force and violence (Dennis). Because criminal attempts and conspiracies are incomplete offenses in which the substantive harm has not yet occurred, this is not a trivial distinction. Indeed, as Justice Black noted in his Dennis dissent:

At the outset I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids.

Unfortunately for Black, six members of the Court did not see it this way.

Instead, the Court upheld the Smith Act prosecutions by purportedly relying on the Clear and Present Danger Test. In reality, however, the Court used on a watered-down version of the Clear and Present Danger Test that has subsequently become known as the ‘‘clear and probable danger’’ test. This test, first articulated by Judge Learned Hand when the Dennis case was before the Court of Appeals for the Second Circuit, posited that the government could punish conspiracies that organize to advocate the violent overthrow of the government if ‘‘the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger’’ (183 F.2d at 212). Hand’s clear and probable danger test is, like the Holmes/Brandeis Clear and Present Danger Test, one that is based on context. However, Judge Hand’s clear and probable danger test allows judges and prosecutors to balance—or trade-off—the serious danger, high probability, and imminence prongs of the Clear and Present Danger Test. In other words, if the danger is severe enough (for example, overthrow of civil government by force), then it does not need to be something that is likely to imminently occur. Similarly, if the danger that the government wants to avoid is likely to imminently occur, then the danger does not need to be serious. In contrast, Holmes and Brandeis argued that the government had to meet each element (severity, probability, imminence) of the Clear and Present Danger Test in their strictest forms.

"From the 1960s to the Present

Beginning in the late 1950s and throughout the 1960s, the Court became less inclined to uphold convictions of individuals either because they advocated (or were organizing to advocate) the overthrow of the government by force and violence or because they expressed support for violating the Criminal Law (see, Sullivan and Gunther, 2003, pp. 47–50). But during this period the Court was unable (or unwilling) to articulate a test to govern First Amendment challenges to such prosecutions. In most cases it engaged in a form of ad hoc balancing, whereby it examined the government’s interests vis-a´-vis the speaker’s interests and ruled in favor of that party whose interests were deemed greater.

This situation came to an end, however, when the Court announced in Brandenburg v. Ohio (1969) that the government could not punish individuals for speech advocating illegal activity ‘‘except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’’ Some have argued that this test combines elements of the Holmes/Brandeis Clear and Present Danger Test with Hand’s direct advocacy test (Sullivan and Gunther, 2003). The test requires that individuals advocate law violation (direct advocacy) and that the danger be probable/likely and imminent (the latter two being two of the three elements of the Clear and Present Danger Test). It is unclear, however, whether any advocacy of law violation qualifies, or whether the law violation must be one that poses a serious and substantial danger (which was deemed necessary under the Holmes/Brandeis conception of the Clear and Present Danger Test). Although the Bradenburg test has been used by the Court for the past thirty-six years in incitement cases, the number of such cases has been sparse. As a result, it is not fully clear how the current Court conceptualizes the test, how protective it is of free speech, or how firmly entrenched it is in First Amendment law.

Freedom of Expression, Democratic Theory, and Government Neutrality

The Relation of Free Speech to Democratic Government

Another crucial doctrinal development since 1919 is the Court’s conclusion that the First Amendment’s free speech clause imposes content and viewpoint neutrality requirements on the government. In a plethora of cases decided since the mid-twentieth century, the Court has argued that free speech is integrally related to democratic government. For democracy to work correctly—for the citizenry to engage in effective self-rule—the people must be afforded ample freedom to discuss the merits and demerits of all types of political, social, and economic ideas. In most instances, public policies will be tailored around those ideas that, in the end, are endorsed by the largest segment of the population. Democracy does not mean much, and probably does not truly exist, if the citizenry is not allowed to debate ideas and then enact policies that are consistent with the views garnering majority support. Of course, democracy does not mean the majority should be allowed to ensconce its views into public policy in all instances, but it does mean that in most situations there is a presumption in favor of allowing such a result. To be sure, democracy is often defined as majority rule with minority rights. But clearly there must be significant latitude for the former if a regime is going to be considered democratic.

However, allowing free and fair debate often comes hard to those in power. After all, those in power typically do not want to lose their grip on the levers of government control. Therefore, dominant groups—and their representatives in government— often have an incentive to maintain their authority by preventing others from criticizing their policies, actions, and agendas. Indeed, these tendencies are what led to the long line of cases pertaining to the incitement of illegal activity that was discussed earlier. Current laws normally represent the choices of those in power, and it is a potential threat to their status if outsiders are allowed to advocate that those laws be intentionally violated.

But there are more subtle techniques available to those in power to prolong their control. More subtle methods, that is, than crushing those who advocate illegal activity. For example, the dominant governing coalition could decide to enact policies that directly promote the ideological worldview and political orthodoxy to which it subscribes. These policies, if successful, will persuade members of the citizenry— perhaps even those who were initially not supportive of the dominant coalition’s ideology—that the current regime’s ideology is correct and (as a corollary) that its representatives in government ought to be retained at the next election. In West Virginia State Board of Education v. Barnette (1943), a majority of the Supreme Court argued that the state of West Virginia was engaging in just such an effort and that it had contravened core principles underlying the First Amendment.

The West Virginia state school board had enacted a policy requiring students, at the commencement of each day’s public school classes, to rise and recite the pledge of allegiance while offering a stiff-arm salute to the American flag. Students who refused to engage in this activity could be suspended from school, and their parents could be subjected to fines. In Barnette, the parents of two school children challenged the state’s pledge policy by arguing that it violated the tenets of their religious beliefs—and thus the First Amendment’s free exercise clause. However, rather than relying on the free exercise clause, the Supreme Court—which at the time was a staunch supporter of the First Amendment—concluded that the state’s policy violated the free speech interests of the school children.

In a stirring opinion for the Court, Justice Robert Jackson argued that the free speech clause protects a person’s right to both speak and to remain silent. The government, according to Jackson, cannot force individuals to articulate support for or subscribe to any particular beliefs, ideologies, or orthodoxies. This principle, Jackson explained, is one of the primary differences between democratic and totalitarian governments, and that the latter have frequently resorted to extreme measures in their efforts to induce political consent. In his Barnette opinion Justice Jackson wrote that ‘‘[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.’’ In subsequent decisions, the Supreme Court has affirmed its commitment to prevent the government, in most circumstances, from forcing individuals to express their support for particular political, social, religious, or economic viewpoints (see Wooley v. Maynard, 1977, where the Court upheld the right of a New Hampshire resident to cover the motto ‘‘Live Free or Die’’ on his vehicle’s license plate).

First Amendment First Principles: Content and Viewpoint Neutrality

One can argue that the Barnette case constitutes the earliest doctrinal foundations for the Supreme Court’s conclusion that the First Amendment requires government regulations touching on private expression be content and viewpoint neutral. What the Court feared in Barnette, and what it fears in the presence of any content- and viewpoint-biased regulations of expression, is the possibility that the government is attempting to tilt the free speech playing field so that the government’s preferred views will ‘‘win’’ the battle in the marketplace of ideas. If such behavior is allowed, then the ruling majority coalition can tailor government policies to inculcate its ideological worldview among members of the public— thus orchestrating its continued political support and, ultimately, perpetuating its rule of the regime. Such machinations smell more of fascism than democracy.

To challenge such efforts, the Supreme Court has developed the content and viewpoint neutrality doctrines. The former looks unfavorably on speech regulations that limit the types of subjects and topics that can be discussed in a particular setting. For example, in R.A.V. v. City of St. Paul (1992), the Supreme Court concluded that a St. Paul, Minnesota, hate speech ordinance was unconstitutional, because it was content biased. The R.A.V. majority noted that the ordinance only prohibited hate speech pertaining to ‘‘race, color, creed, religion, or gender.’’ The law was content biased because it did not prohibit all types of hate speech. However, during that same Term the Court upheld a law that the each justice agreed was content biased. The policy being challenged in Burson v. Freeman (1992) prohibited individuals from soliciting votes or displaying and distributing campaign paraphernalia within 100 feet of a polling place entrance. The law was upheld because the Court concluded that the state had a Compelling State Interest in promoting the integrity, fairness, and accuracy of elections, as well as in protecting the citizen’s fundamental right to vote. Moreover, the policy was narrowly tailored to further those objectives.

Viewpoint neutrality doctrine is concerned with regulations that favor particular viewpoints about a particular subject or topic. For example, a regulation that allowed supporters (but not opponents) of the nation’s defense policy speak in a public park would be a prime example of a viewpoint-biased law. Similarly, in 1989 and 1990, the Supreme Court concluded that state and federal flag desecration laws were viewpoint biased—and thus unconstitutional (see Texas v. Johnson, 1989 and United States v. Eichman, 1990). The Court argued that the only government interests being furthered by these laws were those pertaining to the sanctity and image of the flag and the government’s desire to prohibit its disrespectful treatment. After all, neither law punished those who burned a flag in a respectful and dignified manner (for example, to dispose of a soiled flag). Punishment only resulted if the flag’s desecration was disrespectful and likely to anger those who witnessed the event. Clearly, the application of the laws hinged on the views being conveyed by the person burning the flag.

The Supreme Court considers problematic both content- and viewpoint-biased regulation of expressive activities, and the presence of either typically results in the policy being declared unconstitutional. However, the justices consider viewpoint bias the worst of the two, because in that instance the government is openly seeking to promote one side of a political debate. Consequently, as of 2005, the Supreme Court has never upheld a viewpoint-biased regulation of expressive activity. In fact, even in those instances when the government is regulating a form of expression not considered entitled to significant First Amendment protection (for example, obscenity, libel, fighting words), or when it enacts an otherwise legitimate time, place, and manner regulation (for example, constraints on the use of sound trucks), the government will normally encounter insurmountable First Amendment obstacles if it has created a contentor viewpoint-biased regulatory scheme. The content and viewpoint neutrality doctrines, along with the Court’s larger effort to curb government attempts to manipulate the chorus of voices in the marketplace of ideas, represent bedrock principles of the Supreme Court’s interpretation of the First Amendment in the modern era.

MARK KEMPER

References and Further Reading

• Farber, Daniel A. The First Amendment. 2nd Ed. New York: Foundation Press, 2003.
• Sullivan, Kathleen, and Gerald Gunther. First Amendment Law. 2nd Ed. New York: Foundation Press, 2003.

Cases and Statutes Cited

• Abrams v. United States 250 U.S. 616 (1919)
• Brandenburg v. Ohio 395 U.S. 444 (1969)
• Burson v. Freeman 504 U.S. 191 (1992)
• Cantwell v. Connecticut 310 U.S. 296 (1940)
• Carolene Products Co. v. United States 304 U.S. 144 (1937)
• De Jonge v. Oregon 299 U.S. 353 (1937)
• Debs v. United States 249 U.S. 211 (1919)
• Dennis v. United States 341 U.S. 494 (1951)
• Feiner v. New York 340 U.S. 315 (1951)
• Frohwerk v. United States 249 U.S. 204 (1919)
• Gitlow v. New York 268 U.S. 652 (1925)
• Herdon v. Lowry 301 U.S. 242 (1937)
• Masses Publishing Co. v. Patten 244 Fed. 535 (S.D.N.Y., 1917)
• R.A.V. v. City of St. Paul 505 U.S. 377 (1992)
• Schenck v. United States 249 U.S. 47 (1919)
• Terminiello v. Chicago 337 U.S. 1 (1949)
• Texas v. Johnson 491 U.S. 397 (1989)
• Thornhill v. Alabama 310 U.S. 88 (1940)
• United States v. Eichman 496 U.S. 310 (1990)
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943)
• Whitney v. California 274 U.S. 357 (1927)
• Wooley v. Maynard 430 U.S. 705 (1977)