The Burger Court and the Primacy of Political Expression

Published date01 September 1987
Date01 September 1987
Subject MatterArticles
EDWARD V. HECK, San Diego State University
ALBERT C. RINGELSTEIN, University of New Orleans
New York Times v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme
t Court embarked upon a new era in the analysis of First Amendment
issues. In stirring language Justice Brennan declared that Police Com-
missioner L. B. Sullivan’s libel suit against the Times must be decided in
light of &dquo;a profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials&dquo; (p. 270). According to Harry Kalven
(1964: 205), Brennan’s opinion suggested that &dquo;analysis of free-speech is-
sues should hereafter begin with the significant issue of seditious libel and
defamation of government by its critics rather than with the sterile example
of a man falsely yelling fire in a crowded theater.&dquo; The Court, in short,
had discovered (or rediscovered)’ that the &dquo;central meaning of the First
Amendment&dquo; (New York Times, p. 273) was the protection of political speech.
In effect, the Court embraced the essence of Alexander Meiklejohn’s the-
ory of freedom of speech (Kalven 1964; Brennan 1965; Krislov 1968: 33-36).
Meiklejohn himself is reported to have reacted to the decision by declar-
ing, &dquo;it is an occasion for dancing in the streets&dquo; (Kalven 1964: 221).
In Meiklejohn’s view the First Amendment conferred not an absolute
right to speak as one chooses, but rather an &dquo;unlimited guarantee of the
freedom of public discussion&dquo; (1948: 37). Deriving his position from the
premise that &dquo;unabridged freedom of public discussion is the rock on which
our government stands&dquo; (p. 77), Meiklejohn argued that the First Amend-
ment guarantees applied &dquo;only to speech which bears, directly or indirectly,
upon issues with which voters have to deal&dquo; (p. 79).2 On the other hand,
Received: February 25, 1986
Revision Received: July 2, 1986
Accepted for Publication: July 24, 1986
Perhaps Chief Justice Hughes should be given credit for originating the primacy of politi-
cal expression principle. In Stromberg v. California, 283 U.S. 359, 369 (1931), he wrote:
"The maintenance of the opportunity for free political discussion to the end that govern-
ment may be responsive to the will of the people and that changes may be obtained
by lawful means ... is a fundamental principle of our constitutional system."

Responding to criticism that his approach would leave much valuable speech unprotected
(see Bollinger 1983: 444), Meiklejohn later expanded his notion of protected speech that
bears "upon issues with which voters have to deal" to include education, science and
philosophy, and literature and the arts, as well as public discussion of public issues (Meik-
lejohn 1961: 257). His rationale was that such forms of expression fall "within the range
of human communication from which the voter derives ... knowledge, intelligence,

&dquo;private speech,&dquo; particularly speech aimed at private gain, was in Meik-
lejohn’s view outside the scope of First Amendment protection (pp. 37, 87).
The purpose of this paper is to examine the First Amendment decision-
making of the Burger Court to determine what kinds of claims the Court
has been most willing to support and then to consider whether the Court’s
decisions and opinions exhibit sensitivity to the principle of the primacy
of political expression. The concept of freedom of expression is an expan-
sive one that recognizes that the explicit First Amendment guarantees of
freedom of speech, of the press, and of assembly and petition are closely
intertwined (Richmond Newspapers v. Virginia, 448 U.S. 555, 575 [1980]) and
that the implied &dquo;freedom to engage in association for the advancement
of beliefs and ideas&dquo; is closely related to these explicit guarantees (NAACP
v. Alabama, 357 U.S. 449, 460 [1958]). Thus, this analysis of the Burger
Court’s freedom of expression decisions embraces cases raising a First
Amendment freedom of speech, press, association, or assembly claim.
In the years since New York Times, Meiklejohn’s ideas have become a
significant feature of constitutional debate (Tedford, 1985: 428-30). The-
ories of First Amendment interpretation based on the premise that the de-
gree of protection may vary according to the type of expression involved
invariably assign the highest level of protection to political speech (Canavan
1971: 125-26; Van Alstyne 1984: 40-42). Despite differences of opinion
about the underlying purposes of the First Amendment, constitutional the-
orists share the common ground that the protection of political speech is
a crucial feature of
the constitutional guarantee (Ely 1980: 93-94). To those
with an expansive view of the First Amendment guarantees, the protec-
tion of political speech is merely one of a multitude of purposes of a theory
of freedom of expression. Emerson (1980: 423) takes the position that the
underlying values of the First Amendment include individual self-fulfillment,
the advance of knowledge and discovery of truth, and &dquo;maintenance of
the proper balance between stability and change&dquo; in addition to &dquo;partici-
pation in decision-making by all members of society.&dquo; Similarly, Tribe
(1978) builds his First Amendment theory on the foundation of Justice Bran-
deis’ vision that freedom of expression is an end in itself, as well as a means
to the end of governing in a democratic polity ( Whitney v. California, 274
U.S. 357, 375-77 [1927]).
Other commentators have sought to confine judicial protection of ex-
pression more narrowly within the boundaries of Meiklejohn’s emphasis
on the protection of political speech. Bork (1971: 20-27) has invoked Meik-
lejohn in support of the proposition that only non-subversive political speech
merits judicial protection under the First Amendment. Expanding Bork’s
sensitivity to human values: the capacity for sane and objective judgment which ...
a ballot should express" (p. 256). While opposing censorship of literature and the arts,
Meiklejohn at the same time reaffirmed his position that "there are many forms of com-
munication which, since they are not being used as activities of governing, are wholly
outside the scope of the First Amendment" (p. 258).

view of freedom of expression slightly, BeVier (1978) argues that First
Amendment protection might legitimately be expanded to some forms of
nonpolitical expression as an instrumental means of providing full protec-
tion for explicitly political speech. The implications of these differences for
judicial decision-making are potentially far-reaching. While all of these
jurisprudential approaches agree that political speech should be protected,
only the more expansive theories readily accommodate vigorous judicial
protection for the types of speech which Meiklejohn regarded as outside
the scope of the First Amendment guarantee.
Meiklejohn’s ideas also figure prominently in the freedom of expres-
sion theories of the justices themselves. According to Justice Thurgood Mar-
shall, the &dquo;core value&dquo; of the First Amendment is &dquo;the public interest in
having free and unhindered debate on matters of public importance&dquo; (Pick-
ering v. Board of Education, 391 U.S. 563, 573 [1968]). A sampling of Burger
Court opinions is sufficient to establish that the justices have frequently
invoked the position that political expression is deserving of special protec-
tion under the First Amendment. While sustained analysis based on the
primacy of political speech principle is rare, the Meiklejohn theory has been
frequently invoked and Meiklejohn sometimes cited by name in Burger
Court opinions. In Carey v. Brown, for example, Justice Brennan cited Meik-

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