Expressive liberties in the state courts: their permissible reach and sanctioned restraints.

• Author: Friedelbaum, Stanley H.

1. A BRIEF RETROSPECTIVE

   Freedom of expression has enjoyed a long history and, on significant occasions, an exalted status in the evolution of constitutional principles and the safeguards designed to prevent their abridgment. From early efforts to promote liberty, dating from the Magna Carta and the periodic contests that succeeded it, recognition of expressive freedoms slowly occurred within the narrow context of English constitutional law and the restrictive framework to which it was often confined. (1) A collection of tracts-known to the American colonists and to the framers of future state charters--stood out as classic expositions along the road to more exacting libertarian instruments. Among these were defenses of freedom of the press, exemplified by John Milton's Areopagitica (2) and in other unlicensed papers attacking press censorship that surfaced during the mid-to-late seventeenth century. (3) Increasingly, personal rights succeeded in assuming a positive place in the English legal system by way of statutes, the common law, and the Bill of Rights associated with the Glorious Revolution of 1688. (4) Therein lay the origins of early state declarations of expressive liberties.

   Sometimes omitted when identifying the sources of state expressive liberties are the years of benign imperial neglect preceding the American Revolution. (5) It was during this era that traditions began to develop out of struggles and crises that set the royal governors against well-placed colonists who controlled the appropriation of funds: a source of friction that often spelled the difference between minimally effective government and creeping stagnation. (6) Opportunities multiplied for a confluence of theories and ideas drawn from the English heritage and the practical idiom of colonial experiences. (7) Unlike a strong British penchant for pragmatic, unplanned experiments and procedures, (8) American development was marked by the adoption of written constitutions and the preservation of liberty by way of explicit guarantees. (9) Prominent among the provisions set out were those intended to protect free expression and publication. (10) Yet Sir William Blackstone's famous defense of press freedom was limited to the absence of prior restraint with warnings against the extension of protection to the publication of what was "improper, mifchievous, or illegal." (11) It remained for recurrent feats of American upgrading to temper such caveats and to move both the nation and the states toward the realization of a level of expressive freedom more in keeping with contemporary ideals. (12)

   Abuses of liberty have come to pass, most noticeably during periods of stress when real or supposed threats to security have outweighed oft-acclaimed rights. If the Alien and Sedition Acts of the early Republic (13) and transgressions during the Great Wars (14) impugned the national government as a trustworthy protector of precious liberties, so like failings during times of crisis detracted from state contributions. (15) While legislative and executive excesses initiated downward spirals, judicial responses--premised on state constitutional safeguards--did not always provide staunch counter-remedies. State courts, acknowledged expositors of opinions that could have extended beyond federal minima, were not known for exceptional defenses of liberty. (16) The 1970s proved to be a relatively quiescent period as a renewed reliance on independent state grounds became meaningful. The newfound activities of state courts, in their relations with the federal judiciary, were restricted largely to peripheral issues of expressive freedom, not to the major conflicts of the preceding anti-communist crusade. (17)

   What has become apparent during the past three decades of the new judicial federalism is the narrow framework of expressive freedom in which state courts have elected to function and to project innovative doctrines. Perhaps the United States Supreme Court's primacy in the exposition of the First Amendment and its leadership in cases in which such decisions were rendered have eclipsed state efforts. Early state advances focused principally on a variety of social issues such as education, (18) privacy, (19) and segments of the criminal law. (20) To some extent, they were prompted by significant gaps in federal case law and legislative acts, the limited scope of traditional state interests, and the seemingly narrow potential for expansive readings of state constitutional language. (21) Notwithstanding these disclaimers, the defense of expressive liberties in the states has perceived objectives of its own and, within the contexts selected, achievements at times have been impressive, albeit not unerringly exceptional.

   A number of recent cases shed light upon the nature of state court contributions. While most are of limited scope and effect, the areas touched upon continue to be important in defining liberty in contemporary terms. The likelihood of positive review before the federal Supreme Court has been remote even when federal intervention is not structurally precluded. In many cases, the bases of decisionmaking might have been predicated upon the First Amendment without endangering the essential dualism of the American jurisprudential system.

   That the choices, in a broad variety of cases, lay with state courts and constitutions is a tribute to judicial federalism in an area where advocates just a few decades earlier would have been prone to resort to the First Amendment. There has been an apparent desire to extend vitality to applicable provisions of state charters independently of federal counterparts in hopes of the emergence and adoption of novel rationales linked to expansive concepts of expressive liberty. A sampling of cases, largely reflecting the values and outlook of state courts during the mid-1990s, is represented in this article. Whether the turn to the states has given rise to significant victories in an age-old struggle must await an evaluation of long-term trends. In any event, a number of cases present issues of first impression, suggesting boundaries imposed upon regulatory schemes by state safeguards of expressive freedom.

2. POLITICAL SPEECH AND COGNATE INTERESTS

   At issue in the 1993 review of a disorderly conduct conviction in Indiana were intense and profane exchanges between a protesting partygoer and an arresting officer. (22) The state supreme court ordered acquittal on the basis of language in the state constitution protecting speech, writing, or printing "'on any subject whatever'" (23) conditioned on a "'freedom-and-responsibility standard'" that proscribed abuse of the right. (24) In reaching this conclusion, the court relied upon a natural rights philosophy linked to historical considerations and original intent--a philosophy that emphasized the free speech guarantee and permitted the curtailment of expression only when it infringed on another's rights. (25)

   The majority in Price v. State asserted that certain "preserves of human endeavor" did not fall within the reach of the state's police power. (26) The state, therefore, was not free to "impose a material burden upon a core constitutional value" contained in any provision of the Bill of Rights: such core values may be legislatively qualified but not alienated. (27) Despite the state's charge that a public nuisance existed in what was a noisy and at times vulgar protest of police conduct, the court declined to sustain a complaint predicated upon what it took to be one such core constitutional value--political speech. (28) Since the defendant's tirade did not inflict harm beyond a mere annoyance, the court determined that her speech warranted special protection because it implicated a noteworthy public interest. (29) Reasoning that a state that attempts to dictate the permissible avenues by which political opinions may be expressed "teeters on the edge of its authority," the majority refused to subject political expression to an exacting "standard of gentility." (30)

   The dissent chastised the majority for having seized upon an ill-conceived basis for asserting a commitment to independent state grounds. (31) In fact, it declared, the court had selected a poor vehicle and had "formulated a strained rationale" toward the achievement of such ends. (32) There were fears that the choice of definitions and the meanings attributed to constitutional language had distorted legitimate restraints. (33) The dissent criticized the majority for elevating political speech to the point of shielding a noisy encounter from criminal penalty and affording it an unwarranted deference. (34) It cautioned that disorderly persons might well be protected by a shield of impunity as long as their "profanities include[d] a protest about police conduct." (35) Viewed in this light, the designation of political expression as a core constitutional value threatened public order on specious and ill-considered grounds. (36)

   The extraordinary care and high level of security accorded political speech and its ramifications was confirmed by the state of Washington in Collier v. City of Tacoma. (37) In fact, the Supreme Court of Washington moved with such vigor to safeguard political expression that it failed to observe its self-imposed rule requiring the threshold application of nonexclusive procedural criteria before launching an inquiry on independent state grounds. (38) At issue in Collier was the validity of a municipal ordinance imposing a durational limitation for the posting of preelection political campaign signs in residential yards and parking strips. (39) The candidate, a political novice with limited resources, claimed that the signs were the most cost effective means of communicating his message. (40) The court agreed and, by way of a familiar tripartite test of time, place, and manner regulations, (41) concluded that the city's ordinance posed an unconstitutional impediment. (42) The court...