The First Amendment Toolkit

• Pages: 43-62
• Author: Daniel A. Farber

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Chapter 3

THE FIRST AMENDMENT TOOLKIT

Like the content distinction, the doctrines discussed in this

chapter are part of the e ssential toolkit of any First Amen dment

lawyer. The firs t ste p in considering a potential First Amendment

problem is to ask whether the govern ment has done anything to p ut

the First Amendment in play. The government wins if the conduct

involved in the case doesn’t count as “speech,” or if the government’s

action with respect to the speech doesn’t count as an “abridgment.”

The next step is to look at the form of the regulation. A regulation

may be basically sound, in the sense that the government is trying to

regulate speech that it does have the power to control. But the

regulation will nonetheless be unconstitutional if it constitutes a

prior restraint, or if it suffers from ove rbreadth or vagueness.

Finally, there is the overall question of judicial deference. Before a

case ever gets to the Supreme Court, determinations about the need

for a particular speech regulation have been made in various ways

by legislatures, enforcement officers, and lower courts. Lawyers need

a good sense of how much the Court will second-guess these prior

determinations.

I. Has There Been an “Abridgment” of “Speech”?

Suppose the government makes grants to daycare centers.

Among vario us conditions covering aspects of the programs, one is

that each daycare center provide suitable celebrations of national

holidays. A multicultural center objects to any celebration of the

Thanksgiving holiday, on the grounds that it is offensive to Native

Americans as an endorsement of European colonialism. As a

compromise, the government offers to allow the cen ter to maintain

its funding simply by serving turkey for lunch, but the center refuses.

The gist of the center’s objection is that, on pain of losing its grant, it

is being forced to convey a message of support for Thanksgiving with

which it disagrees. The government argues that there is no First

Amendment problem: conditioning a gove rnment grant on whether

someone serves a turkey dinner is not an “abridgment of the freedom

of speech.”

The Thanksgiving hy pothetical illustrates three conceivable

defenses to a constitutional claim stemming from the language of the

Free Speech Clause. The first defense is that the conduct involved in

the case (serving turkey) does not qualify as “speech.” The second is

that, rather than blocking any me ssages, the government has only

mandated additional expressive conduct. The final defense is that

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FOUNDATIONAL ISSUES

Pt. I

rather than restricting speech, the government has only offered

inducements for desired types of expression.

A. Speech Versus Conduct

The constitutional references to “speech” and the “press” could

be read to protect only verbal or printed communications. However,

people communicate in a variety of other ways, some of which we

have already discussed. Some people, for example, express their

views by burning flags, draft cards, or crosses. The modern Supreme

Court seems to have little difficul ty in finding these activities

sufficiently communicative to come within the scope of the First

Amendment. The se non -verbal ac tivities are often called “symbolic

speech.”

Clark v. Commu nity f or Creative Non-Violence

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illustrates the

Court’s approach to symbolic speech. The national parks system

allows overnight sleeping only in designated campgrounds. The

plaintiffs, who were protesting the plight of the homele ss, wanted to

set up “symbolic tents” on the Washington Mall and in LaFayette

Park, which is across from the White House. As Justice Marshall’s

dissent pointed out, these areas “have served as the sites for some of

the mo st rou sing political demonstrations in the Nation’s history,”

and the “primary purp ose f or ma king sleep an integral part o f the

demonstration was ‘to re-enact the central reality of homelessness.’ ”

The Court was willing to assume for purp oses of its decision that

“sleeping in the park” might be covered by the First Amendment. The

Court observed that “a me ssage may be delivered by conduct that is

intended to be communicative and that, in context, would reasonably

be understood by the viewer to be communicative.” But the Court had

little trouble in upholding the ban under the O’Brien test, finding a

reasonable, non-content justification to limit overnight sleeping in

parks.

In the 1960s, the question of “symbolic speech” was hotly

contested. For instance, the lower courts were sharply divided over

whether male students had a Fir st Amendment right to wear lo ng

hair as a form o f self-e xpression. Clark illustrates why this debate

has faded away. Since the O’Brien test is applied so favorably to the

government, it makes very little difference in most cases whether

conduct is classified as speech or not, so long as the government’s

regulation is content neutral. Thus, the government is not

necessarily hampered in enforcing a g eneral regulation unrelated to

the protestor’s intende d message, even if we do classify the conduct

as speech. In contrast, if the government regulation is based on a

protestor’s intended message, the government cannot very well deny

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468 U.S. 288 (1984).