Introduction [359-360]

 

While the First Amendment only explicitly restricts Congress, there has never been any serious challenge to its applicability to all branches of the federal government.

 

§12.01 Advocacy of Unlawful Objectives [360-370]

Many older cases in the free speech area are no longer good law. For example, in Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes first articulated his famous but overruled “clear and present danger” test. In a classic illustration that free speech is not absolute, Justice Holmes wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Id. at 52. The far less than absolute standard for protecting the subversive speech at issue in this case was the famous “clear and present danger” test: “The 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.

 

In Whitney v. California, 274 U.S. 357 (1927), the Court upheld the conviction of Anita Whitney for conspiring to overthrow the government under California’s Criminal Syndicalism Act. Justice Brandeis’ concurrence in Whitney actually was written as a dissent in another case involving a more violent-leaning member of the Communist Party. The case became moot, however, when the defendant died before the Court had finished its review. Joined by Justice Holmes, Justice Brandeis concurred with the result in Whitney because the petitioner had failed to raise the proper constitutional objection below. Justice Brandeis criticized the Court’s application of the clear and present danger test as ambiguous.

 

Justice Brandeis’ opinion contained most of the modern rationales for the modern Court’s strong protection for freedom of political speech. The key rationale was that of allowing people to develop their own personalities, and to enable decisions to be made by a democratic deliberative process rather than by the arbitrary exercise of authority. Free speech was the key to liberty that the Founders valued as both an end and as a means. Freedom of speech advanced the pursuit of truth. It also provided an avenue for dissent, which preserved societal stability. Permitting freedom of speech actually was conservative. By fostering gradual societal change and by allowing everyone to have their say, it actually helped to prevent revolution.

 

Justice Brandeis’ rationales for protecting free speech, particularly the promotion of democracy and self-fulfillment, were embraced and elaborated on by noted First Amendment scholars Alexander Meiklejohn and Thomas Emerson. According to Alexander Meiklejohn, the essential reason for protecting speech was that the free exchange of different ideas was necessary for a democratic society. See A. Meiklejohn, Freedom of Speech and Its Relation to Self-Government (1948); A. Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245. If the people were truly to be the ultimate decision-makers, they had to be informed enough to exercise effective choice in voting and influencing government. To be informed decision-makers, the public required not only speech about political ideas but also literary, scientific and educational speech. All were necessary in shaping political discourse. Meiklejohn predicated broad protection of free speech on the public’s right to know and the audience’s right to receive information. Thomas Emerson, on the other hand, focused on the speaker’s right to speak.

 

In contrast to Meiklejohn, Thomas Emerson offered four rationales for protecting free speech: (1) individual self-fulfillment; (2) the pursuit of knowledge and truth; (3) participation in democracy and in other aspects of our culture; and (4) political dissent to effect social change. T. Emerson, The System of Freedom of Expression 6-7 (1970). In addition to these important rationales for protecting free speech, Emerson elaborated the speech-action continuum.

 

Emerson’s speech-action continuum had pure speech on one end and pure conduct on the other. Most forms of expression that people engaged in fell somewhere in-between the two extremes. Emerson interpreted the First Amendment to afford greater protection that more closely resembled speech and less protection for expression that resembled conduct. Again, indicating the importance of Justice Brandeis’ opinion in Whitney, the speech-action continuum has important similarities with the distinction that Justice Brandeis made between advocacy and incitement.

 

Brandenburg v. Ohio, 395 U.S. 444 (1969), is emblematic of the bright lines approach that characterized the free speech jurisprudence of the Warren Court and continues to exert considerable influence on free speech doctrine. The Court declared that the First Amendment did “not permit a State to forbid or proscribe advocacy ... except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447. This was a “bright lines” or categorical approach to free speech issues, at least in the political context. To meet the Brandenburg test, the speech must fit within certain categories. First, the speech must be an incitement. The Brandenburg Court also required that the speech be objectively likely to produce imminent lawless action, and that the speaker subjectively intended to produce such imminent lawless action. The speech must meet all three of these criteria before government can proscribe it. To illustrate the test, the Court contrasted teaching the moral necessity of using force, with preparing or steeling a group for violent action. The Court held the Ohio Criminal Syndicalism statute unconstitutional on its face. As the Ohio statute was similar to the one upheld in Whiney, the Court overruled Whitney.

 

Justice Douglas’ concurring opinion rejected the clear and present danger test outright. The test’s flexibility allowed it to be easily manipulated by judges, who represented the status quo, to squash small threats.

 

§12.02 Membership in Political Organizations as a Basis for Government Sanctions [370-372]

 

The right of association is not explicitly mentioned in the First Amendment but has been derived from the right to free speech. The right to speak lacks meaning without the right to associate with others to exchange ideas. In United States v. Robel, 389 U.S. 258 (1967), the Court upheld an overbreadth challenge to the provision of the statute that prohibited members of the Communist Party from being employed in defense plants. Chief Justice Warren’s majority opinion emphasized that the Court was not denying Congress the power to keep Communists out of sensitive defense positions. In a footnote, Chief Justice Warren explicitly declined to use an approach that balanced the Congressional and First Amendment interests. Instead, he required Congress to tailor legislation narrowly to avoid the conflict. Justice Brennan’s concurrence stated that Congress could exclude Communist Party members from sensitive defense facilities.

 

§12.03 Compulsory Disclosure of Political Affiliations [372-374]

 

In Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963), the Legislative Investigation Committee of Florida ordered the President of the Miami branch of the NAACP to appear before it, answer questions, and bring membership records. The inquiry purportedly sought to examine Communist infiltration of the organization. Acknowledging the legislature’s inherent power to conduct investigations, the Court emphasized that the inquiry at issue infringed on the right of association.

 

§12.04 Associational Rights in Other Contexts [374-377]

 

In Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989), a unanimous Court invalidated, on freedom of association grounds, sections of the California Election Code that regulated the internal organization of political parties in the state.

 

§12.05 Free Speech Problems of Government Employees [377-391]

 

            [1]  Patronage Dismissals

 

Branti v. Finkel, 445 U.S. 507 (1980), restricted patronage dismissals of government employees. In Branti, two assistant public defenders were awarded a permanent injunction restricting their newly appointed boss from firing them simply because they were Republicans and their boss was a Democrat.  The Court concluded that, while public employment was not a right, once the government provided certain benefits like public employment, it must allocate this legislated entitlement according to constitutional criteria, not strictly by political affiliation.  In Rutan v. Republican Party, 497 U.S. 62 (1990), the Court extended Branti to hold that party patronage practices may not affect “promotion, transfer, recall and hiring decisions involving low-level public employees.” Id. at 64.

 

            [2]  Restraints on Political Activity

 

In free speech cases, overbreadth and vagueness challenges are often asserted together even though overbreadth is a First Amendment challenge and vagueness is a Fifth or Fourteenth Amendment due process challenge, not confined to speech cases. A vagueness challenge simply asserts that the law fails to give adequate notice. Overbreadth is another facial challenge to a law, asserting that the law regulates protected speech as well as unprotected conduct. The doctrine requires that an entire statute be invalidated because of its chilling effect on protected speech. Unlike vagueness, overbreadth will invalidate an entire statute even though, in the case at issue, the statute may affect only unprotected conduct.

 

            [3]  Employee’s Rights to Criticize Government

 

Connick v. Meyers, 461 U.S. 138 (1983), said a public employee’s criticism of the government lacked constitutional protection if it did not involve a matter of public concern.

 

            [4]  Special Protection for Legislators and Other Government Employees

 

Article I, Section 6, Clause 1 of the Constitution is the Speech and Debate Clause. It exempts members of Congress from legal action for what they have said in speeches or debates.