Posted on April 17, 2003

by

Daniel Clark

The First Amendment's protection of free speech has been invoked a lot lately, but does anybody care what it actually says? Most Supreme Court justices do not, nor have they for decades. The recent Virginia v. Black case is the latest example of this.

At issue in that case was a Virginia law that prohibits KKK-style cross burnings. According to that statute, "It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. ... Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

To those of us who are not fluent in legalese, it might be difficult to comprehend how this law could be found in violation of, or in any other way relevant to, the free speech provision of the First Amendment, which says, "Congress shall make no law ... abridging the freedom of speech." There's no federal law being disputed, nor is there any attempt to censor anyone's speech. Seldom one to let the Constitution stand in her way, however, Justice Sandra Day O'Connor wrote the Court's main opinion, relying on decades of faulty precedent to explain that "Congress" and "speech" aren't necessarily relevant.

O'Connor's opinion vacated the Virginia Supreme Court decision which had upheld the convictions of Richard Elliott and Jonathan O'Mara. The two Virginia Beach men had burned a cross on the property of one of Elliott's neighbors, who is black. In order to dispense with the First Amendment's stated application only to laws passed by Congress, O'Connor determined that the constraints of the First Amendment are "applicable to the states through the Fourteenth Amendment." This is plainly untrue, since the Fourteenth Amendment doesn't even address freedom of speech, but it has been repeated so often in previous Court opinions that nobody bothers to question it anymore.

This particular bit of balderdash is widely believed to have originated from the infamous Warren Court of the Sixties, but it actually goes all the way back to Justice Oliver Wendell Holmes' dissenting opinion from the 1925 Gitlow v. People of New York decision. Holmes, who many regard as a great conservative jurist, took the fanciful opinion that "The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used."

Holmes used the word "liberty" here as a direct synonym for "freedom," which is a legitimate definition of the word, but one that is incompatible with its constitutional context. If the word "liberty," where it appears in the Constitution, means the same thing as "freedom," then the entire Bill of Rights has been rendered moot, for every mention of a specific freedom has been made redundant, and every limitation placed on our freedoms repealed. There'd be no point in specifying a freedom of speech, or in shielding that right only from Congress, if we were guaranteed an absolute freedom of speech in this broadened definition of "liberty."

The narrower, alternate definition of "liberty," and the one which must be applied if the Bill of Rights is to have any meaning at all, is freedom from slavery or imprisonment. When the Fifth and Fourteenth Amendments say that no person shall be deprived of liberty without due process of law, that also means that, having received due process, one can be deprived of freedom from slavery (by being sentenced to perform labor), or imprisonment.

If Holmes had cited the Fifth Amendment, and applied his definition of "liberty" to it, the conflict between it and the other amendments which were ratified concurrently would have been obvious. Instead, he pointed to the Fourteenth Amendment, which was ratified seventy-seven years later. He needed to do this in order to create the impression that some event took place later on that triggered a metamorphosis in the First Amendment, which expanded its protections beyond the federal level.

The theory that took hold from this is that the Fourteenth Amendment, which specifies that no state shall deprive any person of liberty without due process, took previously existing restrictions on federal power and projected them to the states. It did no such thing. The Fifth Amendment had already declared, "No person shall ... be deprived of life, liberty or property without due process of law," but since slavery had been allowed to continue in spite of this, another amendment became necessary to emphasize that the states would no longer be able to ignore it. Hence, "no person shall be deprived" was rewritten to say "no state shall deprive any person." Since the first of those clauses already forbids any such deprivation caused by state governments, no new information has been added. The due process clause of the Fourteenth Amendment was a reiteration, not an expansion, of the rights already recognized in the parallel clause from the Fifth.

Therefore, the Fourteenth Amendment doesn't change the meaning of the First Amendment any more than the Fifth did. When the First Amendment says "Congress," it still means "Congress," and nothing more. But since O'Connor is relying on precedent, and not on the Constitution, she avoids that conclusion.

She does likewise with regard to "speech." By replacing that term with "expression," as has been done in numerous previous cases, she deliberately expands it to include things which clearly are not speech. In a footnote, she responds to a dissenting opinion by Justice Clarence Thomas, who refuses even to categorize Elliott and O'Mara's actions under the Court's preferred terminology, arguing instead that burning a cross on a neighbor's property is conduct, and not expression. "While it is of course true," O'Connor replies, "that burning a cross is conduct, it is equally true that the First Amendment protects symbolic conduct as well as pure speech."

It is not, of course, true that the First Amendment protects "symbolic conduct," but Supreme Court precedent does, and to O'Connor, that's what matters. In the 1969 Street v. New York, case, one of many claiming a First Amendment right to burn an American flag, Justice John Marshall Harlan declared, "[W]e are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects." Harlan, too, somehow saw a right to burn stuff embedded in the First Amendment's protection of "freedom of speech." The Court seems to suggest that the speech of the defendants in these cases is flammable. Just who do they think they are, Godzilla?

If the freedom of speech is taken to encompass "expression" and "symbolic conduct," and it cannot be abridged by either federal or state governments, then the right of the people to "free speech" would produce anarchy, because there's practically no activity that couldn't be placed under one of these categories. The Supreme Court has addressed this by deciding that it must allow limits (i.e., abridgments) to be placed on this freedom. In fact, the First Amendment had already done this, by identifying particular freedoms to be protected from congressional action, while leaving open the possibility of restrictions by state and local governments. Since the Court was determined to rule that those distinctions no longer exist, it has assumed the responsibility for drawing limits of its own.

Justice Holmes wrote in the 1919 Schenck v. United States case that, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic ... The question in any case is whether the words used are used in such circumstances and are of such a nature to create clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

The First Amendment asks no questions about proximity and degree, and it certainly does not empower Congress to prevent words from being spoken. Sure, if someone falsely shouts fire in a theater, he risks being arrested, and rightly so -- but by local authorities, enforcing a local ordinance. The reason the First Amendment wouldn't protect him is that his arrest would not require a law to have been written by Congress. It is not because Justice Holmes hurled a thunderbolt and declared, "The First Amendment stops here."

Since then, Supreme Court decisions on First Amendment cases have been consistently capricious. In Chaplinsky v. New Hampshire (1942), Justice Frank Murphy wrote for the majority, "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. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which by their very utterance inflict injury or tend to incite and immediate breach of the peace."

So words that offend people are not protected by the First Amendment, but offensive actions apparently are. In Tinker v. Des Moines School District (1969), the Supreme Court ruled that high school students had a right to wear black armbands in protest of the Vietnam War. Justice Abe Fortas wrote that, "our Constitution does not permit officials of the State to deny their form of expression." So the First Amendment limits the authority of high school principals? No wonder our schools don't bother teaching kids about the Constitution; it would only confuse them, once they compared it to the rulings that supposedly derive from it.

Now, Justices O'Connor, Stevens and Breyer, along with Chief Justice Rehnquist, have ruled that the state of Virginia is forbidden by the First Amendment from banning all public cross burnings, but must instead consider the intention of the person committing the act. Justices Kennedy, Souter and Ginsburg disagree, arguing that all cross burnings are constitutionally protected "expressions" which cannot be proscribed by law. The only two justices who understand that the First Amendment does not forbid a state from banning such an act are Clarence Thomas and Antonin Scalia -- the two justices President Bush says he would like his appointees to emulate. The next time "First Amendment activists" like People for the American Way and "civil rights groups" like the NAACP oppose Bush's judicial nominees, they should be asked to explain this.

The Supreme Court has dispensed with any consistently applicable rules, and replaced them with its own repeated assurances that it knows constitutionally protected free expression when it sees it. As a result, society has lost its grasp of the First Amendment as well. Thanks to the Tinker decision, students across the country demand the "right" to wear tee-shirts to school advertising their political opinions. One wonders whether they will someday claim that their liberty rights are being violated by their required attendance in the first place. War protesters complain that their free speech rights are being violated every time someone openly challenges them, or when they realize that they're being stigmatized by public opinion. Celebrities think they're being deprived of their rights if people who disagree with them refuse to buy their albums or rent their movies.

Justice Holmes' hypothetical man shouting fire could now claim that his arrest was a violation of his First Amendment rights, and most people's instinct would be to agree with him. The "living Constitution" is now giving way to a feeling Constitution, whose meaning is as fleeting as emotion. As long as somebody feels his rights have been violated, it must be so. And if that same person feels upset by what someone else says to him, then a limit must be placed on the other person's freedom of speech. Rather than a fundamental right, which applies equally to everybody, the First Amendment becomes perceived by that person as his own privilege to have his behavior tolerated, no matter what.

If the touchy-feelies who support the judicial misinterpretation of our Constitution actually had to rewrite the First Amendment so that it said what they wished it did, they'd have to change its title to the Me-First Amendment. It wouldn't be likely to pass, but at least it would be honest.

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