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Figures Of Speech
First Amendment Heroes and Villains
William Turner (Author)
Publication date: 03/01/2011
Recounting controversial First Amendment cases from the Red Scare era to Citizens United, William Bennett Turner—a Berkeley law professor who has argued three cases before the Supreme Court—shows how we've arrived at our contemporary understanding of free speech. His strange cast of heroes and villains, some drawn from cases he has litigated, includes Communists, Jehovah's Witnesses, Ku Klux Klansmen, the world's leading pornographer, prison wardens, dogged reporters, federal judges, a computer whiz, and a countercultural comedian. This is a fascinating look at how the scope of our First Amendment freedoms has evolved and the colorful characters behind some of the most important legal decisions of modern times.
“Turner tells fascinating stories of unlikely heroes and explains difficult legal issues clearly and concisely, educating and entertaining at the same time.”—Elizabeth Farnsworth, The PBS News Hour
“Turner tells fascinating stories of unlikely heroes and explains difficult legal issues clearly and concisely, educating and entertaining at the same time.”—Elizabeth Farnsworth, The PBS News Hour
Recounting controversial First Amendment cases from the Red Scare era to Citizens United, William Bennett Turner shows how weve arrived at our contemporary understanding of free speech. His strange cast of heroes and villains, some drawn from cases he has litigated, includes Communists, Jehovahs Witnesses, Ku Klux Klansmen, the worlds leading pornographer, prison wardens, dogged reporters, federal judges, a computer whiz, and a countercultural comedian. This is a fascinating look at how the scope of our First Amendment freedoms has evolved and the colorful characters behind some of the most important legal decisions of modern times.
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Book Details
Overview
Recounting controversial First Amendment cases from the Red Scare era to Citizens United, William Bennett Turner—a Berkeley law professor who has argued three cases before the Supreme Court—shows how we've arrived at our contemporary understanding of free speech. His strange cast of heroes and villains, some drawn from cases he has litigated, includes Communists, Jehovah's Witnesses, Ku Klux Klansmen, the world's leading pornographer, prison wardens, dogged reporters, federal judges, a computer whiz, and a countercultural comedian. This is a fascinating look at how the scope of our First Amendment freedoms has evolved and the colorful characters behind some of the most important legal decisions of modern times.
“Turner tells fascinating stories of unlikely heroes and explains difficult legal issues clearly and concisely, educating and entertaining at the same time.”—Elizabeth Farnsworth, The PBS News Hour
“Turner tells fascinating stories of unlikely heroes and explains difficult legal issues clearly and concisely, educating and entertaining at the same time.”—Elizabeth Farnsworth, The PBS News Hour
Recounting controversial First Amendment cases from the Red Scare era to Citizens United, William Bennett Turner shows how weve arrived at our contemporary understanding of free speech. His strange cast of heroes and villains, some drawn from cases he has litigated, includes Communists, Jehovahs Witnesses, Ku Klux Klansmen, the worlds leading pornographer, prison wardens, dogged reporters, federal judges, a computer whiz, and a countercultural comedian. This is a fascinating look at how the scope of our First Amendment freedoms has evolved and the colorful characters behind some of the most important legal decisions of modern times.
About the Author
William Turner (Author)
For the past 29 years, William Bennett Turner has taught course on freedom of speech and the press at the University of California at Berkeley. He has also taught First Amendment courses at OLLI@Berkeley and at the Fromm Institute at the University of San Francisco.
Mr. Turner practiced law for 45 years. As a San Francisco lawyer, he specialized in unusual litigation, including constitutional law. He argued three cases before the United States Supreme Court (including two First Amendment cases) and more than 40 cases in lower appellate courts, and he served as lead counsel in many notable state and federal trials.
He graduated from the Harvard Law School in 1963 and, after a Fulbright fellowship in comparative law, he spent three years with a New York law firm. This was followed by nearly ten years with the NAACP Legal Defense Fund doing civil rights law. He returned to teach at Harvard in 1977. He founded his own law firm in San Francisco in 1978 and served as its senior partner until 1992. He was of counsel to the firm of Rogers Joseph O'Donnell from 1992 to 2008.
Mr. Turner has published more than 40 articles in various magazines, newspapers and law reviews. His work has appeared in the New York Times, Politico, Wired, the San Francisco Chronicle, Harvard Magazine, The Threepenny Review and many other publications. He also served as Legal Affairs Correspondent for KQED television, winning numerous awards for news and documentaries on legal subjects. He was Legal Consultant to the PBS ""We The People"" series on the Bicentennial of the Constitution. He is the author of Figures of Speech: First Amendment Heroes and Villains.
To learn more about William B. Turner, visit his website.
Table of Contents
Foreword: Anthony Lewis
Introduction
Chapter 1: Yetta Stromberg
Chapter 2: Jehovah's Witnesses
Chapter 3: Dannie Martin
Chapter 4: Raymond Procunier and Robert H. Schnacke
Chapter 5: Earl Caldwell
Chapter 6: Richard Hongisto
Chapter 7: Clarence Brandenburg
Chapter 8: Larry Flynt
Chapter 9: Clinton Fein and the ACLU
Introduction
Chapter 1: Yetta Stromberg
Chapter 2: Jehovah's Witnesses
Chapter 3: Dannie Martin
Chapter 4: Raymond Procunier and Robert H. Schnacke
Chapter 5: Earl Caldwell
Chapter 6: Richard Hongisto
Chapter 7: Clarence Brandenburg
Chapter 8: Larry Flynt
Chapter 9: Clinton Fein and the ACLU
Excerpt
Dramatis personae
This is a strange cast of characters: Communists, Jehovah's Witnesses, Ku Klux Klansmen, prison wardens, James Madison, dogged reporters, federal judges, the world's leading pornographer, a computer whiz, and others. Some of them are First Amendment heroes. Some are First Amendment villains. Some of them are famous; most are obscure. All played a role in a controversy contributing to our modern understanding of freedom of speech.
First Amendment controversies are often started by colorful characters. Many of them are not nice or polite; nor do they have noble motives. They say, or want to say, mean or disturbing things, speech that people don't want to hear. Some want to speak truth to power, but the powerful want them silenced. Very few people are pure First Amendment heroes, that is, people who want to advance the cause of free speech for everyone. We all say we believe in free speech—in the abstract, or when it's our own speech or a point of view we agree with. We're not so sure when it's speech that expresses ideas that we loathe.
Most would-be First Amendment speakers—people who claim constitutional protection—have their own agendas, and those agendas are often at odds both with majoritarian sentiment and with societal values other than freedom of speech. Nothing is wrong with that: a free country is supposed to work that way.
First Amendment heroism and villainy, as in the rest of life, are about courage and cowardice. The heroes are those who say what they believe, insist on saying it even when people (and governments) don't want to hear it, and have the courage to face the consequences. Villains are those who want to suppress speech they disagree with or are fearful of, or who give in too easily to competing values and go along with the idea that this is speech people shouldn't have to hear.
This book is about people who intentionally or accidentally became First Amendment heroes or villains. These are my idiosyncratic selections. Undoubtedly others are worthy of the honor or the badge of infamy. I chose some of the heroes and villains from my personal experience with them, and to that extent this book is a memoir. The book also sums up most of what I have learned from working on and teaching First Amendment cases.
For the last quarter century, I have taught the First Amendment at the University of California at Berkeley, the home of the Free Speech Movement in the 1960s. These days, however, fewer Berkeley undergraduates seem to care about free speech. They seem too ready to embrace the competing values offered to restrict speech, and many seem too respectful of authority in general. Being respectful of authority is of course at war with First Amendment values. We don't need a First Amendment to protect our right to read White House press releases. We do need one to uncover and disclose abuses of power, to protect speech that most people don't want to hear, and to debate what kind of country we want to be.
Indifference to how and why we protect civil liberties is distressingly widespread. A recent study found that only half of high school students say newspapers should be allowed to publish freely without government approval of stories. One-third say the First Amendment goes “too far” in guaranteeing free speech. Former Supreme Court Justice Sandra Day O'Connor recently gave a speech lamenting young people's ignorance of how our fundamental values are protected. She said, “Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do.” O'Connor complained that “Two-thirds of Americans know at least one of the judges on the Fox TV show ‘American Idol,' but less than 1 in 10 can name the Chief Justice of the United States Supreme Court.” I have tested this in my class, and the situation is a little worse than O'Connor thought: almost all 110 Berkeley students in the class knew the American Idol judges, and only a couple could name Chief Justice John Roberts.
square square square
Speech in the United States has always been relatively free, but it has never been an absolute freedom. You don't in fact have the right to say whatever you want, whenever and wherever. Libel and perjury are pure speech but illegal. Government has always imposed restrictions and always asserts that competing values require suppression of particular speech. For example, the information, if made public, will endanger national security; the hate speech will incite violence; the online sexual material will harm our children; tabloid journalism will destroy privacy, and so on. In other words, every time government tries to restrict speech, it does so in the name of competing values. Free speech is not the only important value in our society. It frequently collides with other values, important interests that we all care about. That's what makes First Amendment controversies so hard, and so interesting.
The accepted wisdom is that free speech deserves Constitutional protection because it serves three purposes: it advances knowledge and the ascertainment of truth, facilitates self-government in a democracy, and promotes individual autonomy, self-expression, and self-fulfillment. Truth-seeking occurs when everyone can speak freely in a marketplace of ideas, a marketplace in which the government must remain neutral; government can't be allowed to suppress what it considers bad ideas—we don't get to the truth by muzzling dissenters. Free speech is essential to self-government, a system in which we the people are sovereign, for we must be able to criticize government and the officials whom we elect to serve us. Bill Clinton once said, wistfully, “It's almost a citizen responsibility to criticize the President.... Why be an American if you can't criticize the President?” Free speech makes it possible non-violently to change the government, the laws, and those who govern (just as Watergate reporting brought down President Nixon). Individual self-fulfillment is a basic human value and is good in itself, apart from the utility of free speech in helping to find the truth and in facilitating democracy.
A couple of reminders about the First Amendment: First, only government can violate it. Our Constitution is a series of constraints on the power of government, and government alone. It does not bind corporations, labor unions, churches, or private entities of any kind. No matter how vague and oppressive Facebook's or Yahoo's “terms of use” are, no matter how much they restrict free speech, they do not violate the First Amendment. That's because these corporations are not the government. No matter how much corporations insist on conformity to the corporate “culture” and forbid employees from publicly saying what they think, this does not violate the First Amendment.
People who should know better sometimes fail to understand First Amendment basics: especially that only government is barred from abridging free speech. Sarah Palin got it upside down during the 2008 presidential campaign. Feeling that the mainstream media were unfairly criticizing her for negative statements about Barack Obama (like his relationship with Rev. Jeremiah Wright), she complained, “I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks from the mainstream media.” But the media can't violate her First Amendment rights, and media “attacks” on political candidates are the exercise of First Amendment rights, not their abridgment. The First Amendment doesn't protect candidates from press criticism—it encourages it.
Second, what the First Amendment means is what the Supreme Court says it means. The simple text of the amendment (“Congress shall make no law ... abridging the freedom of speech, or of the press”) does not provide the answers to any modern free-speech controversies. The answers come from the Court when it rules on the issues that are brought to it by the parties in concrete cases. The question for the Court in a First Amendment case is whether the particular speech comes within “the freedom of speech” protected by the amendment. This decision essentially involves evaluating whether some competing societal value justifies restricting the speech in question.
Case in point: Citizens United
The Supreme Court's 2010 decision on corporate speech and campaign finance reform is a vivid example of the collision of competing values and the Court's role as decider. Citizens United v. Federal Election Commission was the most important First Amendment decision of the 21st century so far.
The 5–4 decision threw out, on its face, part of the McCain-Feingold package of reforms, specifically the federal campaign finance law that prohibited corporations and unions from using their funds on communications—mainly television advertising—that support or oppose a candidate for office. The case pitted the value of unrestricted political speech against the need to keep corporate money from contaminating elections. The decision came down squarely on the free-speech side, or the corporate side, depending on how you look at it.
The liberal establishment was outraged. There were calls for a constitutional amendment, and the New York Times printed a nearly hysterical editorial. Bloggers warned that the ruling unleashed corporations to buy whatever candidates and legislation they like and lamented that electoral power would be shifted from the promising new grassroots social networking innovators to reactionary corporate interests. An altered formal portrait of the Court circulated on the Internet, showing the robes of the five majority justices festooned with corporate logos as if they were NASCAR drivers. People for the American Way said the Court “staged a hostile takeover of American democracy on behalf of corporations.”
I too have long been disgusted with the influence of money on politics. Elected officials and office-seekers seem to devote more time and energy to fund-raising than to governing, and clearly their positions on legislation are influenced by the interests that back them financially (whether through direct contributions, PACs, or lobbyists). I'm unhappy with any decision that increases the dominant role of money in the political system.
On the other hand, I teach and believe in the First Amendment as one of the most distinctive and important values of our society. I view suspiciously any restriction on political speech. Any restriction should be rigorously tested, not given the benefit of the doubt.
Justice Anthony Kennedy's opinion for the Court brushed aside all procedural obstacles to the broadest possible decision. The case involved a conservative nonprofit corporation, Citizens United, that produced a 90-minute documentary, “Hillary: The Movie,” and wanted to make it available for video-on-demand. The film was an attack on then-Senator Clinton, intended to sabotage her in the 2008 presidential primaries. As characterized by the Court, the film was “a feature-length negative advertisement that urge[d] viewers to vote against Senator Clinton for President.” Citizens United sued the Federal Election Commission (FEC), contending that the federal law did not apply either to it, to video-on-demand, or to the documentary. It formally stipulated in the district court that it did not challenge the law on its face.
The Supreme Court, however, refused to interpret the law narrowly, rejected any “as applied” approach, overruled two of the Court's recent precedents, and declared the federal law invalid on its face. It was a decision of breathtaking scope. Campaign finance reformers were livid.
Many critics of the decision focused on the conservative majority's hypocrisy in abandoning all judicial restraint to reach a decision broadly condemning the law. Justice John Paul Stevens, then almost 90 years old, observed in his 90-page dissenting opinion that the majority had improperly “manufactured” a facial attack on campaign finance laws: “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Reminiscent of his dissent from the similar judicial power grab in Bush v. Gore (awarding the presidency to George W. Bush), Stevens said of the majority, “[The] path it has taken to reach its outcome will, I fear, do damage to this institution.” Advocating judicial restraint while practicing raw, unadorned, result-oriented judicial activism will earn the public's distrust.
Apart from the majority's activism, what seemed to bother people about the merits of the Citizens United decision was its supposed reliance on two fictions: that “money is speech” and that “corporations are persons” with free-speech rights. But these turn out to be more complicated subjects. Obviously money is not speech, but the Court did not in fact say that it is. Quoting its earlier decision in Buckley v. Valeo, it said that a “restriction on the amount of money a person or group can spend on political communication during a campaign ... necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” This seems self-evident. To “speak” in an election campaign requires you to spend money: to print pamphlets and mail them to voters; to design and print posters and distribute them to locations where they will be seen; to rent space on billboards; to advertise on radio and television, and so on. Banning expenditures on electioneering communications, or restricting the amount that can be spent, unquestionably silences political speech. This does not necessarily mean that spending money must be treated as the exact equivalent of standing on a soapbox for all purposes. But condemning the Court for having said or decided that “money is speech” is misleading and more slogan than analysis.
But should corporations have free-speech rights? Corporations are not people, don't think, don't have beliefs, and can't vote. Why should they be able to claim a First Amendment right to “speak” in elections? Justice Kennedy pointed out how broadly the prohibitions swept. The law applied not just to Fortune 500 giants with billions in assets but to all 5.8 million for-profit corporations, most of which are relatively small businesses, many with a sole shareholder. It applied to labor unions large and small. Equally sobering, it applied to all nonprofit corporations, including advocacy organizations, making it a crime for any of them to run an ad supporting or opposing a candidate. As Kennedy put it,
The following acts would all be felonies: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union (ACLU) creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.
The prevailing theme of Justice Kennedy's opinion was that “the First Amendment does not allow political speech restrictions based on a speaker's corporate identity.” The emphasis is on the speech, not on the speaker. If it is true that corporations have the same speech rights as natural persons, the Court's decision that they can't be restricted from spending on core political speech was clearly correct.
The human need for self-expression, one of the values served by free speech, of course has no application to corporations: they can't, by “speaking,” satisfy this human need and, conversely, denying them the benefit of free speech does not impair this interest. If their right to speak is to be recognized, it must be because it serves different First Amendment purposes, such as encouraging free and critical debate about government and leading citizens to the truth by exposing them to diverse points of view in a marketplace of ideas. The majority in Citizens United certainly thought allowing corporate speech served these purposes.
Having emphasized that free political speech, not the corporate identity of the speaker, is what the First Amendment is about, Kennedy concluded that the federal prohibitions were not narrowly tailored to serve the campaign reform interests that the government claimed. Indeed, at one point Kennedy virtually said reformers might as well give up: “Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws.” Kennedy said that while an “appearance of influence or access” may stem from corporate political spending, this “will not cause the electorate to lose faith in our democracy.” (Perhaps he had his fingers hopefully crossed on this one.) Justice Stevens saw it very differently: “The Court's blinkered and aphoristic approach to the First Amendment” will promote corporate domination of the election process. He added that “Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.... While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of money in politics.”
Putting aside the unseemly route the Court took to get to its sweeping decision, the uncritical endorsement of corporate speech, and the likely exacerbation of the problem of money in politics—does the decision have redeeming First Amendment values? On the merits the decision is a very strong statement of fundamental First Amendment principles. Justice Kennedy, who in my view has been the strongest member of the current Court on the First Amendment, used his opinion to reaffirm and expand on several bedrock tenets of the freedom of speech. Many of the tenets emerged from First Amendment battles waged by the heroes whose stories are told in this book and benefit all of us. It is good to be reminded of them:
Kennedy proclaimed, “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Further, “[The First Amendment] has its fullest and most urgent application to speech uttered during a campaign for public office.” To attack or support a candidate is of course core political speech.
Kennedy almost said political speech can't be restricted at all “as a categorical matter” but backed off to say that at least any restriction is subject to “strict scrutiny,” which requires the government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” This tough standard is virtually the kiss of death for whatever legislation is under scrutiny, as it was in Citizens United.
“More speech, not less, is the governing rule.” This proposition harks back to Justice Louis Brandeis's classic 1927 opinion in Whitney v. California. The idea is that if government is concerned about subversive, erroneous speech that may mislead the people, “the remedy to be applied is more speech, not enforced silence.”
Justice Kennedy's emphasis throughout his opinion was on the importance of protecting political speech regardless of who the speaker may be. The reasoning was that in a democracy we the people are entitled to hear all points of view and that government should not be allowed to disfavor speech based on who is speaking. This idea is “premised on mistrust of governmental power.”
Justice Kennedy declared, “Prolix laws chill speech for the same reason that vague laws chill speech: people of common intelligence must necessarily guess at the law's meaning and differ as to its application.” This is new. The Court had long recognized that vague speech regulations, especially those that carry criminal sanctions, improperly chill speech. But “prolix” laws? The campaign finance law thrown out by the Court was a mess; it was exceedingly complex, and would-be speakers had to confront not only the less-than-crystalline language of the statute but 568 pages of FEC regulations, 1,278 pages of explanations, and 1,771 FEC advisory opinions. Treating prolixity as a subspecies of vagueness is good for the First Amendment and for all of us.
In the same vein, the Court said that as a practical matter, a speaker who does not want to risk criminal or civil liability for campaign speech is effectively forced to seek an advisory opinion from the FEC. Justice Kennedy said having to “ask a government agency for prior permission to speak” is “the equivalent of prior restraint”; it gives the FEC “power analogous to licensing laws implemented in 16th- and 17th- century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.” This was somewhat overstated, but it was nice to see the Court reaffirm the free-speech principle first recognized in the classic 1931 case of Near v. Minnesota that “prior restraints”— government censorship of speech before it is uttered—are unconstitutional.
Finally, for those who would expand First Amendment freedoms regardless of competing values, it actually was good that the Court bulldozed its way through all the procedural obstacles to declare the law invalid on its face and was willing to overrule precedents that restricted speech. The Court previously had said that invalidating a law passed by Congress on its face is “strong medicine” to be sparingly used, even in free-speech cases. Citizens United will be a strong precedent for future challenges to various kinds of speech regulation.
The Citizens United result is distressing because this impressive catalog of fundamental First Amendment principles was put to the service of corporate interests rather than to assist the lonely individuals who invoke the amendment to challenge the power structure. The dispossessed, eccentrics, minorities, and dissidents are the ones who need the First Amendment's help, not society's established institutions. A cynic might plausibly consider Citizens United a faux First Amendment decision, a pro-business effort dressed up in free-speech clothes. Justice Kennedy himself allowed some pro-business leaning to show through, remarking that the restriction on corporate spending “muffled the voices that best represent the most significant segments of the economy.” Referring to candidates' electoral speech, he said, “On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors.” Except for Kennedy, the other members of the conservative majority have not previously exhibited great attachment to free-speech values. (Eight days before its Citizens United decision, the very same five-justice majority intervened on an emergency basis in another case with First Amendment implications. The Court summarily prohibited streaming television coverage of the Proposition 8 same-sex marriage trial in San Francisco to other federal courthouses. The disingenuous ground it gave for its ruling was that the district court had allowed only 5 days for public comment on a change in its local rules instead of the 30 days that was usually given. This departure from the local rules was trivial and inconsequential. In fact, the court had received 138,574 public comments, all but 32 favoring transmission. The Supreme Court recognized that district courts can adopt and amend local rules governing how they do business. The majority's rationale for reversing the district court, however, was this: “If courts are to require that others follow regular procedures, courts must do so as well.” How quickly the five majority justices forgot about “regular procedures” in Citizens United and threw off the bonds of judicial restraint to rule for business interests.)
The four conservatives who joined Kennedy to decide Citizens United all came to Washington as part of the Reagan revolution and have been fully committed to its anti-government regulation ideology: getting government off the backs of business. They all subscribed to the Federalist Society agenda of free enterprise unlimited by nettlesome government restrictions. Intrusive and detailed campaign finance laws and regulations must have seemed repugnant to their beliefs. The cynic might suspect that their real allegiance was to the Reaganesque agenda of freeing business from government regulation rather than to the loftier values of free speech. At any rate, they are very different from the kinds of First Amendment heroes we meet in this book.
First Amendment freedoms are fragile, since they are always threatened by competing values—from campaign finance reform to national security to public decency—and those values change over time. The freedoms that we now have—as exhibited by the principles recited and reinforced in the Citizens United case—were not created yesterday out of whole cloth. Nor did they spring into being upon the ratification of the First Amendment in 1791. Our current freedoms are the products of the kinds of First Amendment controversies, mostly in the last few decades, described below. Recognizing that every First Amendment dispute involves the collision of competing values—else there would be no dispute—let's turn to the First Amendment heroes and villains to see how their stories inform the contemporary meaning of the First Amendment.
This is a strange cast of characters: Communists, Jehovah's Witnesses, Ku Klux Klansmen, prison wardens, James Madison, dogged reporters, federal judges, the world's leading pornographer, a computer whiz, and others. Some of them are First Amendment heroes. Some are First Amendment villains. Some of them are famous; most are obscure. All played a role in a controversy contributing to our modern understanding of freedom of speech.
First Amendment controversies are often started by colorful characters. Many of them are not nice or polite; nor do they have noble motives. They say, or want to say, mean or disturbing things, speech that people don't want to hear. Some want to speak truth to power, but the powerful want them silenced. Very few people are pure First Amendment heroes, that is, people who want to advance the cause of free speech for everyone. We all say we believe in free speech—in the abstract, or when it's our own speech or a point of view we agree with. We're not so sure when it's speech that expresses ideas that we loathe.
Most would-be First Amendment speakers—people who claim constitutional protection—have their own agendas, and those agendas are often at odds both with majoritarian sentiment and with societal values other than freedom of speech. Nothing is wrong with that: a free country is supposed to work that way.
First Amendment heroism and villainy, as in the rest of life, are about courage and cowardice. The heroes are those who say what they believe, insist on saying it even when people (and governments) don't want to hear it, and have the courage to face the consequences. Villains are those who want to suppress speech they disagree with or are fearful of, or who give in too easily to competing values and go along with the idea that this is speech people shouldn't have to hear.
This book is about people who intentionally or accidentally became First Amendment heroes or villains. These are my idiosyncratic selections. Undoubtedly others are worthy of the honor or the badge of infamy. I chose some of the heroes and villains from my personal experience with them, and to that extent this book is a memoir. The book also sums up most of what I have learned from working on and teaching First Amendment cases.
For the last quarter century, I have taught the First Amendment at the University of California at Berkeley, the home of the Free Speech Movement in the 1960s. These days, however, fewer Berkeley undergraduates seem to care about free speech. They seem too ready to embrace the competing values offered to restrict speech, and many seem too respectful of authority in general. Being respectful of authority is of course at war with First Amendment values. We don't need a First Amendment to protect our right to read White House press releases. We do need one to uncover and disclose abuses of power, to protect speech that most people don't want to hear, and to debate what kind of country we want to be.
Indifference to how and why we protect civil liberties is distressingly widespread. A recent study found that only half of high school students say newspapers should be allowed to publish freely without government approval of stories. One-third say the First Amendment goes “too far” in guaranteeing free speech. Former Supreme Court Justice Sandra Day O'Connor recently gave a speech lamenting young people's ignorance of how our fundamental values are protected. She said, “Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do.” O'Connor complained that “Two-thirds of Americans know at least one of the judges on the Fox TV show ‘American Idol,' but less than 1 in 10 can name the Chief Justice of the United States Supreme Court.” I have tested this in my class, and the situation is a little worse than O'Connor thought: almost all 110 Berkeley students in the class knew the American Idol judges, and only a couple could name Chief Justice John Roberts.
square square square
Speech in the United States has always been relatively free, but it has never been an absolute freedom. You don't in fact have the right to say whatever you want, whenever and wherever. Libel and perjury are pure speech but illegal. Government has always imposed restrictions and always asserts that competing values require suppression of particular speech. For example, the information, if made public, will endanger national security; the hate speech will incite violence; the online sexual material will harm our children; tabloid journalism will destroy privacy, and so on. In other words, every time government tries to restrict speech, it does so in the name of competing values. Free speech is not the only important value in our society. It frequently collides with other values, important interests that we all care about. That's what makes First Amendment controversies so hard, and so interesting.
The accepted wisdom is that free speech deserves Constitutional protection because it serves three purposes: it advances knowledge and the ascertainment of truth, facilitates self-government in a democracy, and promotes individual autonomy, self-expression, and self-fulfillment. Truth-seeking occurs when everyone can speak freely in a marketplace of ideas, a marketplace in which the government must remain neutral; government can't be allowed to suppress what it considers bad ideas—we don't get to the truth by muzzling dissenters. Free speech is essential to self-government, a system in which we the people are sovereign, for we must be able to criticize government and the officials whom we elect to serve us. Bill Clinton once said, wistfully, “It's almost a citizen responsibility to criticize the President.... Why be an American if you can't criticize the President?” Free speech makes it possible non-violently to change the government, the laws, and those who govern (just as Watergate reporting brought down President Nixon). Individual self-fulfillment is a basic human value and is good in itself, apart from the utility of free speech in helping to find the truth and in facilitating democracy.
A couple of reminders about the First Amendment: First, only government can violate it. Our Constitution is a series of constraints on the power of government, and government alone. It does not bind corporations, labor unions, churches, or private entities of any kind. No matter how vague and oppressive Facebook's or Yahoo's “terms of use” are, no matter how much they restrict free speech, they do not violate the First Amendment. That's because these corporations are not the government. No matter how much corporations insist on conformity to the corporate “culture” and forbid employees from publicly saying what they think, this does not violate the First Amendment.
People who should know better sometimes fail to understand First Amendment basics: especially that only government is barred from abridging free speech. Sarah Palin got it upside down during the 2008 presidential campaign. Feeling that the mainstream media were unfairly criticizing her for negative statements about Barack Obama (like his relationship with Rev. Jeremiah Wright), she complained, “I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks from the mainstream media.” But the media can't violate her First Amendment rights, and media “attacks” on political candidates are the exercise of First Amendment rights, not their abridgment. The First Amendment doesn't protect candidates from press criticism—it encourages it.
Second, what the First Amendment means is what the Supreme Court says it means. The simple text of the amendment (“Congress shall make no law ... abridging the freedom of speech, or of the press”) does not provide the answers to any modern free-speech controversies. The answers come from the Court when it rules on the issues that are brought to it by the parties in concrete cases. The question for the Court in a First Amendment case is whether the particular speech comes within “the freedom of speech” protected by the amendment. This decision essentially involves evaluating whether some competing societal value justifies restricting the speech in question.
Case in point: Citizens United
The Supreme Court's 2010 decision on corporate speech and campaign finance reform is a vivid example of the collision of competing values and the Court's role as decider. Citizens United v. Federal Election Commission was the most important First Amendment decision of the 21st century so far.
The 5–4 decision threw out, on its face, part of the McCain-Feingold package of reforms, specifically the federal campaign finance law that prohibited corporations and unions from using their funds on communications—mainly television advertising—that support or oppose a candidate for office. The case pitted the value of unrestricted political speech against the need to keep corporate money from contaminating elections. The decision came down squarely on the free-speech side, or the corporate side, depending on how you look at it.
The liberal establishment was outraged. There were calls for a constitutional amendment, and the New York Times printed a nearly hysterical editorial. Bloggers warned that the ruling unleashed corporations to buy whatever candidates and legislation they like and lamented that electoral power would be shifted from the promising new grassroots social networking innovators to reactionary corporate interests. An altered formal portrait of the Court circulated on the Internet, showing the robes of the five majority justices festooned with corporate logos as if they were NASCAR drivers. People for the American Way said the Court “staged a hostile takeover of American democracy on behalf of corporations.”
I too have long been disgusted with the influence of money on politics. Elected officials and office-seekers seem to devote more time and energy to fund-raising than to governing, and clearly their positions on legislation are influenced by the interests that back them financially (whether through direct contributions, PACs, or lobbyists). I'm unhappy with any decision that increases the dominant role of money in the political system.
On the other hand, I teach and believe in the First Amendment as one of the most distinctive and important values of our society. I view suspiciously any restriction on political speech. Any restriction should be rigorously tested, not given the benefit of the doubt.
Justice Anthony Kennedy's opinion for the Court brushed aside all procedural obstacles to the broadest possible decision. The case involved a conservative nonprofit corporation, Citizens United, that produced a 90-minute documentary, “Hillary: The Movie,” and wanted to make it available for video-on-demand. The film was an attack on then-Senator Clinton, intended to sabotage her in the 2008 presidential primaries. As characterized by the Court, the film was “a feature-length negative advertisement that urge[d] viewers to vote against Senator Clinton for President.” Citizens United sued the Federal Election Commission (FEC), contending that the federal law did not apply either to it, to video-on-demand, or to the documentary. It formally stipulated in the district court that it did not challenge the law on its face.
The Supreme Court, however, refused to interpret the law narrowly, rejected any “as applied” approach, overruled two of the Court's recent precedents, and declared the federal law invalid on its face. It was a decision of breathtaking scope. Campaign finance reformers were livid.
Many critics of the decision focused on the conservative majority's hypocrisy in abandoning all judicial restraint to reach a decision broadly condemning the law. Justice John Paul Stevens, then almost 90 years old, observed in his 90-page dissenting opinion that the majority had improperly “manufactured” a facial attack on campaign finance laws: “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Reminiscent of his dissent from the similar judicial power grab in Bush v. Gore (awarding the presidency to George W. Bush), Stevens said of the majority, “[The] path it has taken to reach its outcome will, I fear, do damage to this institution.” Advocating judicial restraint while practicing raw, unadorned, result-oriented judicial activism will earn the public's distrust.
Apart from the majority's activism, what seemed to bother people about the merits of the Citizens United decision was its supposed reliance on two fictions: that “money is speech” and that “corporations are persons” with free-speech rights. But these turn out to be more complicated subjects. Obviously money is not speech, but the Court did not in fact say that it is. Quoting its earlier decision in Buckley v. Valeo, it said that a “restriction on the amount of money a person or group can spend on political communication during a campaign ... necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” This seems self-evident. To “speak” in an election campaign requires you to spend money: to print pamphlets and mail them to voters; to design and print posters and distribute them to locations where they will be seen; to rent space on billboards; to advertise on radio and television, and so on. Banning expenditures on electioneering communications, or restricting the amount that can be spent, unquestionably silences political speech. This does not necessarily mean that spending money must be treated as the exact equivalent of standing on a soapbox for all purposes. But condemning the Court for having said or decided that “money is speech” is misleading and more slogan than analysis.
But should corporations have free-speech rights? Corporations are not people, don't think, don't have beliefs, and can't vote. Why should they be able to claim a First Amendment right to “speak” in elections? Justice Kennedy pointed out how broadly the prohibitions swept. The law applied not just to Fortune 500 giants with billions in assets but to all 5.8 million for-profit corporations, most of which are relatively small businesses, many with a sole shareholder. It applied to labor unions large and small. Equally sobering, it applied to all nonprofit corporations, including advocacy organizations, making it a crime for any of them to run an ad supporting or opposing a candidate. As Kennedy put it,
The following acts would all be felonies: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union (ACLU) creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.
The prevailing theme of Justice Kennedy's opinion was that “the First Amendment does not allow political speech restrictions based on a speaker's corporate identity.” The emphasis is on the speech, not on the speaker. If it is true that corporations have the same speech rights as natural persons, the Court's decision that they can't be restricted from spending on core political speech was clearly correct.
The human need for self-expression, one of the values served by free speech, of course has no application to corporations: they can't, by “speaking,” satisfy this human need and, conversely, denying them the benefit of free speech does not impair this interest. If their right to speak is to be recognized, it must be because it serves different First Amendment purposes, such as encouraging free and critical debate about government and leading citizens to the truth by exposing them to diverse points of view in a marketplace of ideas. The majority in Citizens United certainly thought allowing corporate speech served these purposes.
Having emphasized that free political speech, not the corporate identity of the speaker, is what the First Amendment is about, Kennedy concluded that the federal prohibitions were not narrowly tailored to serve the campaign reform interests that the government claimed. Indeed, at one point Kennedy virtually said reformers might as well give up: “Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws.” Kennedy said that while an “appearance of influence or access” may stem from corporate political spending, this “will not cause the electorate to lose faith in our democracy.” (Perhaps he had his fingers hopefully crossed on this one.) Justice Stevens saw it very differently: “The Court's blinkered and aphoristic approach to the First Amendment” will promote corporate domination of the election process. He added that “Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.... While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of money in politics.”
Putting aside the unseemly route the Court took to get to its sweeping decision, the uncritical endorsement of corporate speech, and the likely exacerbation of the problem of money in politics—does the decision have redeeming First Amendment values? On the merits the decision is a very strong statement of fundamental First Amendment principles. Justice Kennedy, who in my view has been the strongest member of the current Court on the First Amendment, used his opinion to reaffirm and expand on several bedrock tenets of the freedom of speech. Many of the tenets emerged from First Amendment battles waged by the heroes whose stories are told in this book and benefit all of us. It is good to be reminded of them:
Kennedy proclaimed, “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Further, “[The First Amendment] has its fullest and most urgent application to speech uttered during a campaign for public office.” To attack or support a candidate is of course core political speech.
Kennedy almost said political speech can't be restricted at all “as a categorical matter” but backed off to say that at least any restriction is subject to “strict scrutiny,” which requires the government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” This tough standard is virtually the kiss of death for whatever legislation is under scrutiny, as it was in Citizens United.
“More speech, not less, is the governing rule.” This proposition harks back to Justice Louis Brandeis's classic 1927 opinion in Whitney v. California. The idea is that if government is concerned about subversive, erroneous speech that may mislead the people, “the remedy to be applied is more speech, not enforced silence.”
Justice Kennedy's emphasis throughout his opinion was on the importance of protecting political speech regardless of who the speaker may be. The reasoning was that in a democracy we the people are entitled to hear all points of view and that government should not be allowed to disfavor speech based on who is speaking. This idea is “premised on mistrust of governmental power.”
Justice Kennedy declared, “Prolix laws chill speech for the same reason that vague laws chill speech: people of common intelligence must necessarily guess at the law's meaning and differ as to its application.” This is new. The Court had long recognized that vague speech regulations, especially those that carry criminal sanctions, improperly chill speech. But “prolix” laws? The campaign finance law thrown out by the Court was a mess; it was exceedingly complex, and would-be speakers had to confront not only the less-than-crystalline language of the statute but 568 pages of FEC regulations, 1,278 pages of explanations, and 1,771 FEC advisory opinions. Treating prolixity as a subspecies of vagueness is good for the First Amendment and for all of us.
In the same vein, the Court said that as a practical matter, a speaker who does not want to risk criminal or civil liability for campaign speech is effectively forced to seek an advisory opinion from the FEC. Justice Kennedy said having to “ask a government agency for prior permission to speak” is “the equivalent of prior restraint”; it gives the FEC “power analogous to licensing laws implemented in 16th- and 17th- century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.” This was somewhat overstated, but it was nice to see the Court reaffirm the free-speech principle first recognized in the classic 1931 case of Near v. Minnesota that “prior restraints”— government censorship of speech before it is uttered—are unconstitutional.
Finally, for those who would expand First Amendment freedoms regardless of competing values, it actually was good that the Court bulldozed its way through all the procedural obstacles to declare the law invalid on its face and was willing to overrule precedents that restricted speech. The Court previously had said that invalidating a law passed by Congress on its face is “strong medicine” to be sparingly used, even in free-speech cases. Citizens United will be a strong precedent for future challenges to various kinds of speech regulation.
The Citizens United result is distressing because this impressive catalog of fundamental First Amendment principles was put to the service of corporate interests rather than to assist the lonely individuals who invoke the amendment to challenge the power structure. The dispossessed, eccentrics, minorities, and dissidents are the ones who need the First Amendment's help, not society's established institutions. A cynic might plausibly consider Citizens United a faux First Amendment decision, a pro-business effort dressed up in free-speech clothes. Justice Kennedy himself allowed some pro-business leaning to show through, remarking that the restriction on corporate spending “muffled the voices that best represent the most significant segments of the economy.” Referring to candidates' electoral speech, he said, “On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors.” Except for Kennedy, the other members of the conservative majority have not previously exhibited great attachment to free-speech values. (Eight days before its Citizens United decision, the very same five-justice majority intervened on an emergency basis in another case with First Amendment implications. The Court summarily prohibited streaming television coverage of the Proposition 8 same-sex marriage trial in San Francisco to other federal courthouses. The disingenuous ground it gave for its ruling was that the district court had allowed only 5 days for public comment on a change in its local rules instead of the 30 days that was usually given. This departure from the local rules was trivial and inconsequential. In fact, the court had received 138,574 public comments, all but 32 favoring transmission. The Supreme Court recognized that district courts can adopt and amend local rules governing how they do business. The majority's rationale for reversing the district court, however, was this: “If courts are to require that others follow regular procedures, courts must do so as well.” How quickly the five majority justices forgot about “regular procedures” in Citizens United and threw off the bonds of judicial restraint to rule for business interests.)
The four conservatives who joined Kennedy to decide Citizens United all came to Washington as part of the Reagan revolution and have been fully committed to its anti-government regulation ideology: getting government off the backs of business. They all subscribed to the Federalist Society agenda of free enterprise unlimited by nettlesome government restrictions. Intrusive and detailed campaign finance laws and regulations must have seemed repugnant to their beliefs. The cynic might suspect that their real allegiance was to the Reaganesque agenda of freeing business from government regulation rather than to the loftier values of free speech. At any rate, they are very different from the kinds of First Amendment heroes we meet in this book.
First Amendment freedoms are fragile, since they are always threatened by competing values—from campaign finance reform to national security to public decency—and those values change over time. The freedoms that we now have—as exhibited by the principles recited and reinforced in the Citizens United case—were not created yesterday out of whole cloth. Nor did they spring into being upon the ratification of the First Amendment in 1791. Our current freedoms are the products of the kinds of First Amendment controversies, mostly in the last few decades, described below. Recognizing that every First Amendment dispute involves the collision of competing values—else there would be no dispute—let's turn to the First Amendment heroes and villains to see how their stories inform the contemporary meaning of the First Amendment.
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