Throughout history the seeds of intolerance have produced injustice and conflict. In Rouen, France in 1431, a nineteen-year-old woman who wore men's clothes, who fought bravely in the French army, and who insisted that she communicated directly with God, was burned at the stake after she was found guilty of witchcraft and heresy. In Salem, Massachusetts in 1692, Samuel Sewall, a Harvard graduate, a devout man, and a duly elected judge, found nineteen persons, mostly women, guilty of witchcraft(1) - a capital offense punishable by hanging.(2) Today the weeds of intolerance poison the relations between neighbors in all parts of the globe - in Northern Ireland, in the Holy Land, in Bosnia, in Eastern Germany, in Azerbaijan, and in some parts of the United States. It seems appropriate, therefore, to ask why (or perhaps even whether) the First Amendment of our Constitution should afford extraordinary protection to the apostles of intolerance.
That it does in fact provide such protection is demonstrated by two cases decided by the Supreme Court earlier this year. In Dawson v. Delaware,(3) the Court held that the State had violated the First Amendment by introducing evidence that the defendant was a member of a white racist gang known as the "Aryan Brotherhood" to convince the jury that he deserved the death penalty for robbing and murdering a white woman. Dawson, the Court found, had a constitutional right to associate with others holding similar intolerant beliefs.(4) Because Dawson's membership had no connection with the crime he had committed, and did not rebut any mitigating evidence that he had offered,(5) the trial court erred by allowing the jury to base a death sentence, in part, on the fact that Dawson had engaged in constitutionally protected conduct.
In R.A.V. v. City of St. Paul,(6) the Court held that a juvenile, who apparently was also a white racist, could not be prosecuted under the city's Bias-Motivated Crime Ordinance(7) for burning a cross on the property of an African-American family. Without condoning the defendant's actual conduct or the message of intolerance that it conveyed, the Court held that the city ordinance violated the First Amendment because it was under-inclusive - that is to say, it did not abridge enough speech. More precisely, the Court concluded that the ordinance was "facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses."(8) In other words, while the use of fighting words to express hostility "on the basis of political affiliation, union membership, or homosexuality"(9) remained permissible, the ordinance unconstitutionally singled out for prohibition expressive conduct that might provoke violence "on the basis of race, color, creed, religion, or gender."(10)
Early in its opinion in R.A.V., the Court noted that "[f]rom 1791 to the present"(11) our society "has permitted restrictions on the content of speech in a few limited areas,"(12) but explained that the scope of those categories had been narrowed by our decisions since the 1960's. The opinion, however, has little to say about the development of First Amendment law before 1960, and does not pause to quote the text of the Amendment adopted in 1791. Because this is the first lecture in a series that is intended to focus on that Amendment, it seems appropriate to refer to the Amendment's text, and to the three dimensions of the immunity that it establishes, before discussing the categorical rule against subject matter regulation that R.A.V. announced.
The First Amendment contains a single sentence that reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.(13)
There are three dimensions to most, if not all, immunity rules. First, they provide protection against a specified category of potential harms. Judicial immunity, for instance, protects the judge from damages liability,(14) while the statutory immunity granted to certain witnesses protects them from criminal prosecution.(15) What the First Amendment protects all of us from is adverse lawmaking by the Congress. Its text, however, does not purport to limit the power of the State of Delaware or the City of St. Paul to regulate or to punish speech.
Second, a rule of immunity provides protection in a specified degree, either absolute or qualified. The judge's immunity from liability for damages is absolute;(16) even malicious wrongdoing may be protected.(17) Law enforcement officers, in contrast, have only qualified immunity; their knowledge of the law, or lack thereof, may determine their liability.(18) As for the First Amendment, its text makes the uncompromising command that "Congress shall make no law . . . abridging the freedom of speech." The imperative tone of that command has an absolute ring; it is far stronger than one that is qualified by exceptions for time, place, and manner regulations(19) or for speech that interferes with a compelling state interest (such as the interest in national security),(20) or for speech that is harmful to children(21) or offensive to captive audiences.(22) The plain language of the First Amendment indicates that the Framers intended to establish a rule of absolute immunity.
The third dimension of an immunity rule identifies the category of behavior that it protects. Thus, judicial immunity protects a judge while he is performing judicial services within the scope of his jurisdiction, but not while he is out robbing banks or fighting with his neighbors.(23) The particular category of protected human behavior that interests us this afternoon is that embraced within the term "the freedom of speech."
I emphasize the word "the" as used in the term "the freedom of speech" because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech. That category could not have been co-extensive with the category of oral communications that are commonly described as "speech" in ordinary usage. For it is obvious that the Framers did not intend to provide constitutional protection for false testimony under oath, or for oral contracts that are against public policy, such as wagers or conspiracies among competitors to fix prices. The Amendment has never been understood to protect all oral communication, no matter how unlawful, threatening, or vulgar it may be.(24) Thus, it seems doubtful that the word "speech" was used in its most ordinary sense.
Instead, it is possible that the word was intended to convey only the alternative definition of the word "speech" given by Noah Webster - a "formal discourse delivered before or to an audience."(25) That is certainly the meaning of the word "speech" as it is used in the only other place in the Constitution in which it appears - namely, the Speech and Debate Clause of Article I, Section 6. Prior to the adoption of the First Amendment, that Clause of the original Constitution gave absolute protection to the freedom to make some formal speeches - those given by senators and representatives during congressional debates. Conceivably, the First Amendment was specifically intended to provide comparable absolute protection against federal interference with the freedom of speech and debate conducted in town meetings and state legislative assemblies.
This understanding of the category of oral speech originally intended for absolute immunity by the First Amendment would be consistent with the limited character of the writings that the Amendment also protects, at least by its plain terms. The word "press," though encompassing newspapers, periodicals, and political pamphlets,(26) is by no means a synonym for "all written words." Moreover, the right to "petition the Government for a redress of grievances" recalls the formal petition of right by which English subjects sought a waiver of their Monarch's sovereign immunity.(27) The plain language of the First Amendment can be read narrowly, as expressing the Framers' original intent to create an absolute immunity from federal interference with a limited category of freedoms.
This interpretation, though perhaps plausible as an historical matter, cannot fully capture the meaning of the First Amendment read as a whole. First, even assuming that the draftsmen of the Amendment focused their attention on a specific set of concerns, they used words that identify and express a faith in principles of tolerance and resistance to authority that bespeak a broader concept of liberty. Moreover, the several clauses that are juxtaposed in the text of the First Amendment illuminate one another and combine to form a whole larger than its parts. There is an obvious connection, for instance, between freedom of speech and freedom of the press, and of course, the exercise of the right to petition the government presupposes a right to speak freely in opposition to government policy. And that right, in turn, presupposes the same freedom of conscience that is protected by the Religion Clauses. Thus, when Justice Jackson referred to the "freedom to be intellectually and spiritually diverse" in the second flag salute case,(28) he was construing the central meaning of the entire Amendment. As he wrote, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."(29)
It is familiar learning that the freedom to reject orthodoxy in matters of religion or politics is now much broader than that originally intended by the Framers of the Constitution. As we pointed out in Wallace v. Jaffree:(30)
Just as the right to speak...