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Three Giant Steps Backward for the First Amendment

by Professor Will Huhn on September 18, 2010

in Constitutional Law,Freedom of Speech,Wilson Huhn

     During the 2009-2010 term, the Supreme Court decided three First Amendment cases.  Although in two of those cases the persons challenging the law on First Amendment grounds won, creating the impression that Freedom of Speech is on the move, careful examination of the Court's opinions reveals that the movement is retrograde.

     In Holder v. Humanitarian Law Project the retreat from First Amendment principles is most easily apparent.  In that case the Supreme Court ruled that the government may make it a crime to try to assist a terrorist organization to achieve its goals through non-violent means.  The Anti-Terrorism and Effective Death Penalty Act prohibits anyone from offering "material support" to a terrorist organization.  On its face this is a reasonable and necessary law.  But the government wishes to apply this law to speech to prohibit groups like the Humanitarian Law Project from assisting terrorist organizations to apply for funding for peaceful purposes or to appear before legislative bodies and plead their grievances.  Of course people must be prosecuted for terrorists acts or for aiding and abetting those acts, but to outlaw the conversion of terrorists to non-violent activities is counterproductive.  The principal function of freedom of speech is that it provides the means for the peaceful resolution of disputes.  Mass terrorism will end when oppressed people have the opportunity to redress what they perceive as injustice through the same mechanisms that we take for granted – access to democratic institutions, constitutional entitlement to equal treatment, and the rule of law.  Those changes will come about much sooner if organizations like the Humanitarian Law Project are allowed to teach terrorist organizations how to work nonviolently within existing institutions.  In this context it is well to remember Louis Brandeis' admonition, in opposition to the criminal prosecution of Anita Whitney, a Communist who advocated peaceful revolution:

     Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution.  Whitney v. California (1927) (Brandeis, J.).

     In United States v. Stevens, the Supreme Court ostensibly struck a blow for freedom of speech when it invalidated a federal law that prohibited depictions of animal cruelty.  The law was overbroad and the Court correctly struck it down.  Despite its title, the statute made it illegal to sell videos of animals being wounded or killed, even if these acts are not "cruel."  The problem for Freedom of Speech lies in the method of reasoning that the Court employed.  For decades the Supreme Court has employed a realistic analysis in First Amendment cases, balancing the harm that speech produces against its value to society.  Political and religious speech is of great value, and is therefore accorded substantial protection under the First Amendment.  Similarly, scientific, literary, and artistic expression are highly valued and stoutly defended by constitutional doctrine.  Commercial speech has received somewhat less protection, while incitement to violence, threats of violence, invitations to violence (fighting words), criminal conspiracy, libel, obscenity, and child pornography are "unprotected" by the First Amendment because they have such little value and because they are likely to directly cause harm to other people.  There are gradations within these categories - for example, libel that also constitutes political speech receives some constitutional protection – but that simply illustrates the complex "constitutional calculus" that the Supreme Court has constructed over the past 70 years.  In Stevens Chief Justice Roberts pushes the calculus between "value" and "harm" aside and asserts that the standard for determining whether or not a category of expression is entitled to full First Amendment protection is whether or not it has been "historically protected."  In other words, he wishes to substitute a "tradition" analysis for a "realist" analysis.  This is the equivalent of moving from the reasoning in Brown v. Board of Education to the reasoning in Plessy v. Ferguson, or from Lawrence v. Texas to Bowers v. Hardwick.  Retrograde motion indeed.

     The Citizens United case, of course, is the First Amendment case from last term that will have the greatest impact on this country, both now and for years to come.  The large corporations and the super-rich now have the opportunity to drown out all other voices in the public forum.  The political landscape may be dominated by big business and immense capital accumulations.  The wealth that all Americans have struggled to create may now be used by a few Americans and foreign nationals to determine the outcome of American elections, reversing reforms first introduced by Teddy Roosevelt in 1907.  Justice Kennedy undoubtedly believes that he was standing up for liberty and freedom of expression by striking down campaign finance reform, and Justice Alito probably believes that I "lie" when I say that this decision will cause grave harm to our democracy.  I hope that they are both right and I am wrong.

     In summary, Holder v. Humanitarian Law Project, United States v. Stevens, and Citizens United v. Federal Election Commission all take us back – back to before 1937 when the Supreme Court recognized the right to nonviolently represent unpopular causes, before 1927 when Holmes and Brandeis introduced realist analysis into First Amendment law, and before 1907 when this country agreed to prohibit corporations from spending money on political campaigns … when Communists (no matter how peaceful) were prosecuted, traditions (no matter how oppressive) were honored, and corporations (no matter how rapacious) were permitted to fund political campaigns.


Quidpro September 19, 2010 at 5:18 pm

Although you initially acknowledge that political and religious speech are entitled to the highest protection under the First Amendment, your criticism of the Citizens United case, if it became law, would turn the First Amenfment on its head. Please explain, Professor, why the First amendment right to advocate for political goals should not apply to the "super-rich".

Dave September 19, 2010 at 9:26 pm

The idea that we need to allow terrorists freedom of speech is simplistic and naive. As if we allowed them redress of their grievances all would be right with the world. The truth is, in far off places tow-bit 'leaders' can and will blame their lot in life on America. There is nothing that we can do about it. These leaders control their media and their viewpoints will go unchallenged. Kim Jong Ill can tell his story to our media, but that will not solve much. The real resolution would come from us being able to tell our story in North Korea.

Calling the stomping to death of animals speech, is where the error lies.

As far as the largest companies exercising free speech rights goes, I do not remember hearing you complain about General Electric. GE is number 4 on the Fortune 500 (Number 6 in 2008) with revenues of $156 billion. GE ran 4 television networks of slanted 'journalism,' in an effort to effect the last presidential race. You don't complain because their speech agrees with your viewpoint.

larry d. September 21, 2010 at 4:51 am

Good point, Dave. It's baffling to me that anyone would claim corporations haven't been spending money on political campaigns since 1907, and I'd much rather have corporations, unions, etc., openly pushing candidates than doing the backroom deal stuff that goes on now.

I also think political candidates should have to wear "sponsor" decals on their suits, like NASCAR drivers.

Professor Will Huhn September 22, 2010 at 11:18 am

You are correct that freedom of speech is the same for all persons, including the "super-rich." They also have the same right to make contributions to political candidates as everyone else: $2,300 per year per candidate. Are you contending that money is speech?
I agree – the more speech the better. It would be great if we could reach the people of North Korea. That was Brandeis' point in Whitney v. California – the "counterspeech" doctrine. I don't mind hearing from terrorists. They are nuts, and the more they expose their views the nuttier they seem to everyone else.
Stomping animals to death may be expressive conduct, it may not be – but whether or not it is, the DEPICTION of these acts is most certainly expression. Unlike the Court, I think it's low value speech and subject to regulation.
Network slanting of news is widespread and annoying no matter which way it cuts – I don't trust either Fox or MSNBC for accurate reporting. But there is not much we can do about that. Do you favor going back to the "Fairness Doctrine?" I doubt it, and I don't either. The actions of GE affiliates and other media corporations involves more than Freedom of Speech; it's Freedom of the Press, and we have to live with the fact that newspapers, magazines, television and radio stations can be as slanted as they choose. That doesn't mean that all corporations should be permitted to contribute as much money as they like to political candidates.
Another great image! Thanks! (Same response though – media organizations are part of the "press.")

Quidpro September 23, 2010 at 6:42 am

In the context of political campaigns, the cliche that "money talks" is apt. (Although, as an aside, Dylan is probably more correct: "Money doesn't talk; it swears".) It necessarily follows that if the government limits the amount of political speech I can buy, then it has limited my speech. If you disagree, Professor, please explain your reasoning.

Dan S. September 23, 2010 at 1:46 pm

The government (at various levels) already limits my speech. My ability to speak my piece at local govt. meetings is limited to a single instance with a finite time limit. My ability to support my chosen candidate(s) for office by placing signs on my property is limited to certain time frames and size restrictions. My ability to rent or install a billboard to advertise my position for or against a candidate or issue is limited by governmental regulation of those billboards. On the other hand, as far as I know, the only limits on my ability to advertise my position on media outlets are the size of my bankroll and the willingness of those media outlets to sell me broadcast time or column inches. Without reasonable limits on the ability to purchase volumes of 'political speech', my meager ability as a working-class individual to speak for my political position is overwhelmed by the ability of a wealthier individual to speak for his/hers. On a level political playing field, the government must not limit what we say, just how often and how loudly we can say it.

Home Boy November 3, 2010 at 5:41 pm

Quidpro, you seem dreadfully confused here. Speech is not purchased, it is made. You, as a natural person, may speak as much as you wish, but nothing inheres within the nature of speech that should give multi-national corporations a right to co-opt public media for the advancement of political agenda. No corporation possesses a functional equivalent to your singular voice or perspective, and no corporation has a similar speech right that should be similarly protected.

larry d. November 3, 2010 at 8:15 pm

So it would be constitutional to prohibit any candidate from running ads, since ads are paid for? They can still utter words, after all, and nothing gives them the right to co-opt public media with their dirty dollars. Maybe we could ban microphones as well.

Dave November 4, 2010 at 7:56 pm

One of the reasons we have trouble with this is that we confuse the right to free speech with a non-existent right to be heard.

Quidpro November 4, 2010 at 8:16 pm

One might hope that you can frame a better argument, Homeboy. The First Amendment makes no distinction between speech delivered by natural persons and speech delivered by corporations. Why do you?

Quidpro September 25, 2010 at 3:14 pm

The First Amendment ("Congress shall make no law… abridging the freedom of speech") does not contain an exception that allows the government to limit speech in the interest of "leveling the playing field".

Dave December 5, 2010 at 11:08 am

We can't seem to agree on corporations and free speech. We can't even agree on media types donating to political campaigns.

Can we at least agree that the government shouldn't provide low interest loans to giant media companies?

GE got $16 billion from the "stimulus." Is it any wonder that it has been viewed favorably on the NBC family of networks? NBC, CNBC, MSNBC, Telemundo, Bravo, SciFi, USA and on and on .

Quidpro January 22, 2011 at 12:32 pm


Dave January 21, 2011 at 7:47 pm

And now Jeffrey Immelt, CEO of GE, has been name to head President Obama' outside panel of economic advisers, replacing former Federal Reserve Chairman Paul Volcker.

What a cozy relationship!

Quidpro January 22, 2011 at 12:36 pm

Agreed, again.

Dave March 22, 2011 at 10:40 am

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