Free Expression and the Constitution

• Pages: 3-21
• Author: Daniel A. Farber

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Chapter 1

FREE EXPRESSION AND

THE CONSTITUTION

The text of the First Amendment is deceptively simple.

Regarding free expression, it says only that “Congress shall make no

law . . . abridging the freedom of speech, or of the press.” Almost

every one of these few words is in some respect misleading as a guide

to legal doctrine:

“Congress.” The First Amendment speaks only of

Congress. But free expression is also protected a gainst

abridgment by the executive branch and the federal courts.

Moreover, since early in the last century , it has been

understood that the Fourteenth Amendment “incorporates”

the First Amendme nt, so that free expression is equally

protected against state governments.

“No law.” Justice Hugo Bl ack was fond of saying that

“no law means no law.” But the courts have never viewed

the First Amendment as an unconditional absolute, and in

practice even Justice Black found some regulatio ns of

speech to be justified.

“Of speech, or of the press.” This sounds as if the First

Amendment applies only to oral or printed communication.

But other forms of communication are also protected,

including not only the electronic media but also

unconventional forms of “symbolic speech” like flag

burning.

Thus, the bare text of the First Amendment provide s only a hint of

the ultimate contours of legal protection.

The U.S. Constitution is not unique in pro tecting free

expression. Today, nearl y all democracies provide constitutional

protection for free expression. But nowhere is the protection taken as

far as in the United States. The unique features of U.S. law derive

less from the constitutional text than fro m the gloss provided by the

Supreme Court. Since the 1960s, the Supreme Court has

aggressively expanded the coverage of the First Amendment to

include more type s of speech and has raised the barriers to

regulation. In general, the Court has sharply restric ted government

regulation of speech, compared both with our own prior history and

with other democracies.

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FOUNDATIONAL ISSUES

Pt. I

Although it is hard to get an accurate count, the Supreme Court

has decided several hundred First Amendment c ases, most of them

since 1970. They deal with a w ide range issues, from libel law to

social media to school prayer. It would be impossible to examine fully

this enormous body of cases in a short book. Instead, the book focuses

on the main lines of doctrinal development and some of the key points

of contention.

In this introductory chapter, we begin by considering the most

fundamental issue about the First Amendment: Why speech receives

special constitutional protection. We then examine how the curre nt

scheme of protection evolved, followed by a quick overview of current

doctrine. Finally, we take a closer look at the road ahead in the rest

of the book.

I. Why Protect Speech?

The Supreme Court sometimes seems determined to test our

commitment to free expression by finding the most offensive conduct

to protect. In 1989, for example, the Court shocked many people with

its decision in Texas v. Johnson.

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Johnson had burned an American

flag as part of a protest at the Republican national convention. He

was convicted for violating a Texas law again st desecrating the flag.

Chief Justice Rehnquist observed that the Texas law “depriv ed

Johnson of only one rathe r inarticulate symbol ic form of protest—a

form of protest that was profoundly off ensive to many—and left him

with a full panoply of other symbols and every conceivable form of

verbal expression to express his deep disapproval of national policy.”

It would be ironic, said the Chief Justice, if the government could

“conscript men into the Arme d Forces where they must fight and

perhaps die for the flag” but could not “prohibit the public burning of

the banner under which they fight.”

But Rehnquist was in dissent. The majority opinion concluded

that the Texas law violated the “bedrock principle” that “the

government may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable.”

Although the Johnson opinion was joined by Justice Scalia, a

noted conservative, it was not well -received by most conservative s

and outraged many ordinary Americans. Liberals, who generally had

no strong feelings about fl ag burning, were unfazed. But their turn

was soon to come. Three years later, the Court decided another

incendiary case, R.A.V. v. City of St. Paul .

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The issue this time was

not flag burning but cross burning. In the middle of the night, several

teenagers constructed a cross from broken chair legs and burned it

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491 U.S. 397 (1989).

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505 U.S. 377 (1992).