The Supreme Court frequently lets progressives down on the First Amendment. The Citizens United case from 2010—which gave corporations an unlimited First Amendment right to contribute to political campaigns—is only the latest example. In 2006, the Court sharply restricted the rights of public employees who blow the whistle on government misconduct, holding in Garcetti v. Ceballos that the First Amendment does not protect them from retaliation if the speech relates to official job duties, a restriction that knocks out the most important whistleblowing.
A thread that runs through the Court's First Amendment cases lately is an absolutist approach to free speech, unless it affects government efficiency in the public workplace or other institutions, such as public schools. But even the conservatives on the Court have broadly extended speech rights in "pure speech" cases on the street and in the media. The recent case upholding the Westboro Baptist Church's right to protest military funerals shows that the Court is able to hold its nose on the most offensive speech imaginable in order to stand on the broader principle that anything goes in the public forum, so long as no one is hurt.
Four cases since 1970 drive this point home. Each case involved vulgarities or deliberately offensive conduct and speech. Had public opinion controlled the outcome, the speech would have been restricted in each case. Instead, the Court rejected calls for censorship in ways that laid the groundwork for controversial political speech in the future.
"Fuck the Draft"
No speech case highlighted the tensions of the Vietnam War more than Cohen v. California, decided in 1970. After Paul Cohen walked into a California courthouse with a jacket reading "Fuck the draft," he was convicted of disorderly conduct and given 30 days imprisonment. The Supreme Court noted that, "[t]he conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech.'" This language allowed the Court to step away from the O'Brien ruling (1968), which gave the government leeway to punish certain speech-related conduct, including draft-card burning.
Ruling in Cohen's favor, the Court stated, "[a]t least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistent with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected." Cohen prevailed in the Supreme Court for two reasons: case law interpreting the First Amendment did not give the Court any reason to restrict the speech and, more interestingly, the Court decided that speech like this—no matter how offensive to the older generation—had a place at the table. In particular, the offended parties were not a captive audience and Cohen's jacket was not unprotected "fighting words." Perhaps never before had the Court tolerated such language in the public sphere.
In famous language that opened the door to vigorous and even offensive political speech, Justice Harlan (a Republican appointed by President Eisenhower) wrote: "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's [sic] vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."
Nazis in Skokie
By 1978, the public may have been forgiving of Vietnam protesters. Even President Carter pardoned draft resisters a year earlier. As the 1960s turned into the 1970s, vulgarities were more commonplace in American culture, but memories of the Holocaust were still fresh in the minds of Americans who fought in World War II and lost family members in Nazi Germany. The case that gave Nazis the right to assemble in Skokie, Illinois—home to many Holocaust survivors—became a flashpoint. Even free speech advocates turned their backs on the American Civil Liberties Union, which represented the Nazis in court. This had to be the most controversial speech case ever litigated in the American courts, though it never reached the Supreme Court, which declined to hear the case.
Just as the Westboro Baptist Church protests military funerals to promote its homophobia, the National Socialist Party was looking for a provocative way to promote its bigotry. It could not have found a better vehicle than a demonstration in Skokie, a move that triggered extensive media coverage and hand-wringing. Surely, many citizens said, there must be limits on even peaceful speech. The federal courts did not agree, though the judges in this case opened up their legal analysis with the following disclaimer: "The conflict underlying this litigation has commanded substantial public attention, and engendered considerable and understandable emotion. We would hopefully surprise no one by confessing personal views that NSPA's beliefs and goals are repugnant to the core values held generally by residents of this country, and, indeed, too much of what we cherish in civilization. As judges sworn to defend the Constitution, however, we cannot decide this or any case on that basis. Ideological tyranny, no matter how worthy its motivation, is forbidden as much to appointed judges as to elected legislators."
Although the Nazis wanted to demonstrate on public property (normally a safe haven for assemblies and speech), the court noted that the government may regulate the time, place, or manner of speech so long as the restrictions are not in reaction to the content or message of the demonstration. But in this case, the municipality acknowledged that it wanted to restrict the speech out of hostility toward the hateful message. The Seventh Circuit Court of Appeals would not go there, noting that speech may not be restricted on the basis of content unless it is obscene, libelous, encourages an imminent danger "of a grave…evil," or constitutes fighting words. Courts are loathe to add to that list.
None of these exceptions applied in Skokie. The only way to rule against the demonstrators was the repugnancy of their message. The trial court in this case stated, "if any philosophy should be regarded as completely unacceptable to civilized society, that of plaintiffs, who, while disavowing on the witness stand any advocacy of genocide, have nevertheless deliberately identified themselves with a regime whose record of brutality and barbarism is unmatched in modern history, would be a good place to start."
While sympathetic with that view, the Seventh Circuit stood firm: "there can be no legitimate start down such a road." For this reason, the most compelling reason to restrict this speech—avoiding the psychic trauma visited upon Holocaust survivors whose presence in the community inspired the demonstration in the first place—could not be squared with settled First Amendment principles as outlined by the Supreme Court. The Court of Appeals reasoned: "It would be grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many of the village's residents. The problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that 'invite[s] dispute…induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.' Yet these are among the 'high purposes' of the First Amendment. It is perfectly clear that a state may not "make criminal the peaceful expression of unpopular views."
Hustler v. Falwell
If Cohen v. California and the Skokie cases taught us anything, it was that the government cannot censor unpopular or even vulgar speech. But what about private lawsuits against offensive speakers? These cases do not neatly fit within the censorship definition, but they pose other risks: jurors might award money damages against the most hated speakers and groups in American society on the basis of a civil tort, such as "intentional infliction of emotional distress," a judge-made doctrine that allows victims to recover for the pain and suffering caused by extreme and outrageous conduct.
The Supreme Court dealt with this problem head-on in 1988, this time in a case that highlighted two other products of the post-1960s culture: pornography (Larry Flynt) and religious evangelists (Jerry Falwell). The public held both men in low regard, but Flynt, publisher of Hustler magazine, took it one step further when he insulted Falwell's mother. Running an advertisement parody in Hustler, Flynt portrayed Falwell as an incestuous drunk whose first sexual encounter took place in an outhouse with his mother. The parody drew from the liquor ads that employed double entendre in asking celebrities about their "first times," but at the bottom of the page Flynt wisely noted that this was parody, "not to be taken seriously."
A jury in Virginia awarded Falwell damages in the amount of $150,000 for emotional distress. In Hustler Magazine v. Falwell, the Supreme Court unanimously stated: "This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most."
Flynt's speech probably offended the Supreme Court even more than Cohen's jacket. Whatever the Court may have thought of Falwell, what did his mother do to deserve this public ridicule? The Court, though, could not retreat from age-old precedents that sharply restricted caustic speech against public figures.
Writing for a unanimous Court, even arch-conservative Chief Justice William Rehnquist could not deny the harms associated with punishing Flynt for this speech: "[t]he sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large'."
Ruling in Flynt's favor, the Justices ruled that civil tort claims cannot override Flynt's right to parody a public figure, and that since no reader would have taken it seriously, Falwell could not argue that the parody was libelous.
Tipping its cap to political satirists, the Court explained why it could not reach any other result: "Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damage awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as 'the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.' The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."
Perhaps no speech repulsed Americans more than the antics of the Westboro Baptist Church, which deliberately provoked hostility in picketing military funerals with signs that celebrate dead soldiers and 9/11 as God's retribution for America's tolerance of gays and lesbians. It is fair to say that no rational human being would support the church's decision to picket military funerals with such hateful speech. This is why Snyder, whose son died in Iraq, prevailed at trial on a civil tort against the church, winning millions of dollars in damages for emotional distress. The public euphoria over this victory was snatched away when the Court of Appeals threw out the verdict.
In an 8-1 decision in Snyder v. Phelps (March 2011), the Supreme Court also sided with the church, but not before issuing the usual disclaimer: "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech."
The Court's decision is in two parts. First, it noted that the protest addressed matters of public concern. After taking note of the church's speech (including signs reading "God hates the USA/Thank God for 9/11" and "Priests Rape Boys"), Chief Justice John Roberts stated, "[w]hile these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import," even if a few of the signs were directed at Snyder's son. Second, "the church members had the right to be where they were" in that they complied with local public assembly requirements, situated themselves some 1,000 feet from the funeral, and there was no shouting, profanity, or violence. "Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment."
The Supreme Court had never decided a case like this. While it has repeatedly upheld the right of protesters to assemble in public parks and on streets and sidewalks, and it has also protected the use of caustic and offensive speech, having sidestepped the Nazi/Skokie case, it had never decided whether the First Amendment protected intentionally provocative speech under these difficult circumstances. None of the precedents cited in the Westboro case resembled this one. The Court fused together from other cases the "public concern" and "public place" theories. And, drawing from legal principles outlined in the Hustler case, it expressed concern that a jury being asked to award damages on the basis of outrageous speech could easily allow its subjective hatred for the message to influence its verdict. "In a case like this, a jury is 'unlikely to be neutral with respect to the content of the speech,' posing a real danger of becoming an instrument for the suppression of…'vehement, caustic, and sometimes unpleasant' expression."
Apologizing for this result, the Court ended the opinion as follows: "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."
The Supreme Court went out of its way to rule in favor of the Westboro Church. The short-term harm posed by the case is that the church will continue to picket military funerals with its outrageous homophobic slander. But the church is a radical sect that will remain on the fringe; no one else is picketing military funerals. In deciding in favor of the church, the Court ensured that other provocative speech will not be censured as long as no one is physically injured. While the Court's speech absolutism may damage this country's electoral process in allowing corporations to buy elections, the Westboro case protects not only conservative Tea Partiers, but liberals and radicals who protest U.S. policies at home and abroad. The message is clear when it comes to this kind of political speech: anything goes.
Stephen Bergstein, a lawyer in upstate New York, writes on civil rights issues (www.secondcircuitcivilrights.blogspot.com).