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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.