First Amendment (Update 2)

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FIRST AMENDMENT (Update 2)

As a general matter, the Supreme Court has held that laws directly restricting the freedom of individuals to express particular messages because those messages might have harmful or undesirable effects are presumptively—perhaps conclusively—unconstitutional. Indeed, the Court has not upheld a direct restriction on speech because it might persuade readers or listeners to engage in criminal activity since dennis v. united states (1951); it has not upheld a direct restriction on speech because the ideas expressed might provoke a hostile audience response since feiner v. new york (1951); and it has never upheld a direct restriction on the publication of truthful information because its disclosure would interfere with public or private interests in keeping the information confidential.

This powerful presumption against content-based restrictions on the freedom of speech derives from the Court's judgment that such laws are particularly likely to distort public debate, to be enacted for constitutionally "improper" reasons (such as hostility to or disagreement with the particular views suppressed), and to be defended in terms of considerations that are thought to be inconsistent with the basic premises of the First Amendment (such as paternalism and intolerance). The paradigm of such a content-based restriction—"no person may criticize the war"—clearly illustrates each of these concerns.

Despite its strong presumption against content-based restrictions, the Court has upheld such restrictions in the special context of low-value speech. The low-value concept had its genesis in chaplinsky v. new hampshire (1942), where the Court stated in dictum:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.… It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Although some commentators have criticized the low-value concept as incompatible with First Amendment theory, the doctrine is essential to a well-functioning system of free expression. Without such a safety valve, one of two unacceptable results would follow: Either the burden of justification imposed on regulations of high-value speech, such as pure political expression, would be diluted, or the very demanding standards applied to regulations of high-value speech would have to be applied to low-value speech, with the result that government would not be able to regulate speech that should appropriately be regulated.

But even if the concept of low-value speech is legitimate, two questions remain: What categories of speech are "of such slight social value as a step to truth" that they may appropriately be regulated, and what are the circumstances in which such regulation is permissible? To answer these questions, the Court has employed two devices. First, the Court strongly presumes that all speech is of high value, and is thus entitled to the full protection of the First Amendment, unless the Court is persuaded that the particular category of speech at issue should fairly be found to be of only low First Amendment value. Second, if the Court concludes that a particular category of speech is of only low value, it then employs a form of categorical balancing to define the specific circumstances in which speech falling within the category may be regulated.

Examples of categories of expression the Court has held to be of low First Amendment value are obscenity, fighting words, commercial speech, incitement to un-lawful conduct, false statements of fact, and threats. Although the Court has insisted that, under the First Amendment, there is no such thing as a false idea, it has recognized that false statements of fact do not affirmatively contribute to public discourse. It has therefore held that actions for libel do not implicate First Amendment values to the same extent as other restrictions on speech. Such actions are thus constitutionally permissible so long as the effort to establish liability for false statements of fact does not have an inadvertent chilling effect on free speech more generally. In new york times v. sullivan (1964), for example, the Court held that civil actions for libel brought by public officials are consistent with the First Amendment, but only if the plaintiff can prove that the publisher acted with knowledge of falsity or reckless disregard for the truth.

Similarly, in the incitement context the Court has held that express advocacy of law violation does not affirmatively contribute to public debate because such advocacy is inconsistent with the basic assumption of the First Amendment—that political change should be brought about through the democratic process rather than through force or violence. On the other hand, to avoid the potential that prosecutions for such advocacy could chill valuable expression, as occurred during the Communist era, the Court held in brandenburg v. ohio (1969) that even express advocacy of law violation cannot be punished unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

In the fighting words context, the Court has concluded that such expression, which consists of the use of personal epithets directed at a particular individual, can be restricted as low-value speech because it is more akin to a punch in the nose than an effort to communicate ideas. But to avoid the possibility that the doctrine might be used to suppress more valuable expression, the Court has sharply limited the fighting words concept to the use of insulting and provocative epithets that describe a particular individual and are addressed specifically to that individual in a face-to-face encounter. Even the most offensive insults will not fall within the doctrine if they are delivered in a public speech or in a publication, or if they describe a group rather than a particular individual.

In recent years, the Court has resisted efforts to add three additional categories to the list of low-value speech—hate speech, pornography, and indecent speech. Hate speech has been defined in many ways. Perhaps the most useful definition characterizes as hate speech any persecutorial, hateful, and degrading expression that conveys a message of group inferiority about a historically oppressed group. The argument for treating such speech as low value is that it presents an idea so historically untenable and so tied to the perpetuation of violence and discrimination that it is properly treated as outside the realm of protected discourse. The objection to this argument is that, unlike the established categories of low-value expression, laws against hate speech proscribe the advocacy of particular ideas because those ideas are offensive or dangerous. In r. a. v. v. city of st. paul (1992), the Court accepted this objection and invalidated an ordinance that prohibited the use of fighting words only if they are based on race, color, creed, religion, or gender. Although a restriction on all fighting words would be permissible, the Court held that this "narrower" restriction was an impermissible content-based discrimination against "those speakers who express views on disfavored subjects." As the Court observed, a racist could be punished for using racist fighting words under the ordinance, but a civil rights advocate could not be punished for using fighting words in response. The Court rejected the argument that this distinction could be sustained as an effort "to ensure the basic human rights of members of groups that have historically been subjected to discrimination."

The Court has long held that obscenity is of only low First Amendment value because such expression appeals primarily to the prurient interest in sex, depicts sex in a patently offensive manner, and lacks serious political, artistic, or scientific value. More recently, efforts have been made similarly to regulate pornography, which is defined as sexually explicit but nonobscene expression that graphically depicts women dehumanized as sexual objects or as sexual objects who enjoy pain, humiliation, or rape. The argument here is that whereas obscenity is concerned with morality and puritanism, pornography is concerned with oppression, discrimination, and violence. Although the categories of obscenity and pornography seem superficially similar, they are different in several important respects. Most importantly, obscenity, unlike pornography, cannot have any serious political, artistic, or scientific value; and pornography, unlike obscenity, expressly restricts a particular point of view—sexually explicit speech that portrays women as subordinate is forbidden, sexually explicit speech that portrays women as equal is permitted. For these reasons, in cases like American Booksellers Association v. Hudnut (1985), courts have generally rejected the argument that pornography can be characterized as low-value speech.

Finally, efforts have been made to restrict indecent speech, defined in various ways, but generally referring to expression that depicts sexual or excretory activities or organs in a patently offensive manner. Because this category reaches beyond obscenity, and is not limited to expression that appeals primarily to the prurient interest and lacks serious political, artistic, and scientific value, the Court has rejected the argument that indecent speech is of only low First Amendment value. In Reno v. American Civil Liberties Union (1997), for example, the Court held that a prohibition on indecent speech over the internet violates the First Amendment. On the other hand, the Court has occasionally upheld more modest regulations of indecent expression. Thus, in federal communications commission v. pacifica foundation (1978), the Court upheld an FCC regulation that "channeled" the broadcasting of indecent profanity to hours in which minors are unlikely to be in the audience; in city of renton v. playtime theatres (1986), the Court upheld a municipal zoning regulation that excluded "adult" theaters from residential neighborhoods; and in National Endowment for the Arts v. Finley (1998), the Court upheld a federal statute that directed the NEA, in establishing procedures to judge the artistic merit of grant applications, to take into consideration "general standards of decency." In each of these cases, the Court rejected the notion that indecent speech is of low First Amendment value, but nonetheless strained to find a way to uphold the challenged regulation.

Although the precise contours of the low-value doctrine are subject to continuing exploration and debate, the doctrine plays a salutary role in First Amendment jurisprudence. Without it, the Court would have to test restrictions on political advocacy by the same standards it uses to test restrictions of obscenity and threats, or it would have to test restrictions of obscenity and threats by the same standards it uses to test restrictions on political advocacy. The low-value doctrine is better than either of those alternatives.

Geoffrey R. Stone
(2000)