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Purposes

* Benjamin Franklin was a famous scientist, sage, U.S. founding father, and president of the nation’s first anti-slavery society.[1] [2] In 1722—five decades before the outset of America’s Revolutionary War—the state of Massachusetts imprisoned Franklin’s brother for criticizing the government.[3] [4]

* In response, Franklin—who was then 16 years old—used an alias to write a commentary about the purposes of free speech in which he quoted the following from a London newspaper:

  • In “those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own.”
  • Guilt only dreads Liberty of Speech, which drags it out of its lurking Holes, and exposes its Deformity and Horror to Daylight.”
  • “Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech….”[5] [6]

* Fifteen years later, the Pennsylvania Gazette published an anonymous essay about free speech thought to be written by Franklin.[7] [8] It began:

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.
Those abuses of the freedom of speech are the excesses of liberty. They ought to be repressed; but to whom dare we commit the care of doing it? An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible.[9]

* The essay then provided numerous examples from history to support those statements, such as the following:

  • Augustus Caesar, Emperor of the Roman Empire from 27 BC to 14 AD,[10] “introduced the law whereby libeling was involved in the penalties of treason against the state. This law established his tyranny; and, for one mischief which it prevented, ten thousand evils, horrible and afflicting, sprung up in its place. Thenceforward every person’s life and fortune depended on the vile breath of informers. The construction of words being arbitrary, and left to the decision of the judges, no man could write or open his mouth without being in danger of forfeiting his head.”[11]
  • During the reign of Henry the Eighth, the King of England from 1509–1547,[12] “every light expression, which happened to displease him, was construed by his supple judges into a libel, and sometimes extended to high treason.”[13]
  • Under Charles the First, the King of England from 1625–1649,[14] “corporal punishments, inflicted with all the circumstances of cruelty and infamy,” kept people “under a servile fear of the like treatment; so that for several years no one durst publicly speak or write in defense of the liberties of the people, which the king’s ministers, his privy council, and his judges had trampled under their feet.”[15]
  • Under Charles the Second, the King of England from 1660–1685,[16] “a licenser was appointed for the stage and the press; no plays were encouraged but what had a tendency to debase the minds of the people. … Thus the stage and the press, under the direction of a licenser, became battering engines against religion, virtue, and liberty. Those who had courage enough to write in their defense were stigmatized as schismatics, and punished as disturbers of the government.”

* After listing the above examples and others, the essay stated:

In the former part of this paper it was endeavored to prove by historical facts, the fatal dangers that necessarily attend a restraint of freedom of speech and the liberty of the press; upon which the following reflection naturally occurs, viz. that whoever attempts to suppress either of these our natural rights, ought to be regarded as an enemy to liberty and the constitution.[17]

* In 1783, near the end of America’s war for independence, George Washington—the military’s commander-in-chief—declared that:

if men are to be precluded from offering their sentiments on a matter which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us. The freedom of speech may be taken away, and dumb and silent, we may be led like sheep to the slaughter.[18] [19] [20]

* After the Nazis came to power in Germany, Hitler’s minister of propaganda, Joseph Goebbels,[21] wrote a pamphlet in which he stated:

  • “National Socialism” (a.k.a Nazism[22]) is creating a new legal structure that places itself “beyond the possibilities of criticism.”
  • “We have been sovereign masters of criticism and are allowed to assume unanimously the standpoint permitting the right of criticism.”
  • “The right to criticize … can be granted only to the wiser people over the more stupid ones and never the other way around.”[23]

* After banning criticism against themselves, Nazi and Communist governments killed more than 100 million people in the 20th century.[24]

Constitutional History

* On July 4th of 1776, the American colonies adopted a Declaration of Independence that affirms:

  • “all men” are “endowed by their Creator with certain unalienable Rights.”
  • among these rights are “Life, Liberty, and the pursuit of Happiness.”
  • the purpose of government is to “secure these rights.”[25] [26]

* After America’s war for independence, all of the states agreed to a Constitution to establish a federal government, vest it with certain powers, and task it to protect people’s rights. This Constitution is the supreme legal authority in the United States, and all Presidents, governors, and federal/state judges and legislators are “bound by Oath or Affirmation, to support” it.[27] [28] [29] [30]

* James Madison was the primary author of the Bill of Rights and is known as the “Father of the Constitution” for his central role in its formation.[31] [32] In 1787—during the convention at which the Constitution was written—Madison stated that all civilized societies are “divided into different Sects, Factions, and interests,” and “where a majority are united by a common interest or passion, the rights of the minority are in danger.” He then said that:

  • this was the cause of slavery, which was “the most oppressive dominion ever exercised by man over man.”
  • it was the duty of the convention to create a system of government that would protect the rights of the minority from the will of the majority.[33]

* Towards that end, the framers of the Constitution developed a system of checks and balances on the powers of the government that they formed.[34] Guarding this system while giving it flexibility is Article V, which allows the Constitution to be amended with the approval of three-quarters of the states.[35] These provisions were designed to prevent a bare majority of people from oppressing all others.[36]

* In 1791, the U.S. government enacted ten amendments to the Constitution known as the “Bill of Rights.” The preamble to these rights states:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.[37]

* The First Amendment in the Bill of Rights states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[38]

* In the 1833 case of Barron v Baltimore, the Supreme Court decided that the rights of the people in the Constitution and the Bill of Rights only had to be respected by the federal government and could be infringed by state governments.[39]

* In 1866—one year after the Civil War ended and slavery was banned by a Constitutional amendment—a bloc of Congressmen called the “Radical Republicans” passed a law to protect the “constitutional rights” of “all persons” without regard to their “race or color, or previous condition of slavery or involuntary servitude….”[40] [41] [42] [43]

* To guarantee that this 1866 law was constitutional, the Radical Republicans fought for and secured passage of the 14th Amendment to the Constitution in 1868.[44] [45] It reads in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[46]

* Republican Senator Jacob Howard of Michigan served on the committee that drafted the 14th Amendment, and he introduced it during a speech on the floor of the Senate. In this speech, he stated that its primary purpose is “to restrain the power of the States and compel them at all times to respect” the “personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech….”[47] [48]

Offensive Speech

* In 1949 case of Terminiello v. Chicago, the Supreme Court ruled (5 to 4) that government cannot fine someone for speech that “stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance.” Citing earlier court decisions, the majority ruled:

The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.[49]

* All of the dissenting justices in Terminiello v. Chicago voiced support for the principles above, but they disagreed with the final ruling based on legal technicalities. One of the Justices argued that government could fine someone for speaking in a way that made people angry enough to produce a “clear, present and immediate” “danger of rioting and violence in response to the speech….”[50]


* In 1971 case of Cohen v. California, the Supreme Court ruled (5 to 4) that government cannot imprison someone “who maliciously and willfully disturbs the peace or quiet” by “offensive conduct.” In this case, a man was arrested in a courthouse hallway for wearing a jacket that read “F**k the Draft.”[51] Citing earlier court decisions, the majority ruled:

The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us….
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.
Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.[52]

* All of the dissenting justices in Cohen v. California dissented based on a legal technicality. Three of them also dissented based on the view that the First Amendment was not applicable in this case, because the defendant’s jacket was an “absurd and immature antic” that was “mainly conduct” and had “little” to do with speech.[53]


* In the 1992 case of R.A.V. v. City of St. Paul, the Supreme Court unanimously ruled that the following law violated people’s right to free speech:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.[54]

* Five of the nine justices ruled that:

The First Amendment generally prevents government from proscribing speech … or even expressive conduct … because of disapproval of the ideas expressed.[55]

* The other four justices decided the law was unconstitutional for different reasons and declared:

The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected [by the First Amendment].[56]

Private Property

* The right to free speech does not extend to private property.[57] [58]

* If people speak on private property in a manner that is against the wishes of the owner, the owner can tell the speakers to leave. If they refuse to comply, the owner can have them arrested for trespassing.[59]

* In some cases when a private party rents or uses government property for an occasion like a community event, family celebration, or art show, federal courts have stated that the private party can restrict speech. In other cases, courts have ruled that various degrees of government involvement in such events causes them to be subject to the First Amendment and other constitutional rights.[60] [61]

Private Suppression in Public Venues

* In order to rise to power, the Nazis used violence carried out by private citizens to suppress free speech.[62] [63]

* The 14th Amendment to the U.S. Constitution requires federal, state, and local governments to provide “equal protection of the laws” to all people in their jurisdictions.[64] [65] [66] This means these governments have a measure of responsibility to protect the rights of all people from infringement by others, including the right of free speech.[67] [68]

* Per the Indiana Law Journal:

The right to engage in lawful conduct and to be protected therein against the lawless is the fundamental reason for the existence of organized government. The protection of the right, therefore, is equally vital to government regardless of the benefits which its exercise may or may not confer, for if the right is not protected, government has failed in its basic function.[69]

* In 1947, a panel of three judges on the U.S. Court of Appeals for the Eighth Circuit ruled that:

the fundamental rights to assemble, to speak, and to worship cannot be abridged merely because persons threaten to stage a riot or because peace officers believe or are afraid that breaches of the peace will occur if the rights are exercised.[70]

* Per the American Bar Association, if government were to suppress free speech because of the threat of violence:

a small number of lawless men by passing the word around that they intend to start a riot could prevent any kind of meeting, not only of radicals or Socialists or trade unionists, but also of Negroes, of Jews, of Catholics, of Protestants, of supporters of German refugees, of Republicans in a Democratic community or vice versa.
The only proper remedy for such a situation, small or serious, is the police protection to which citizens are entitled, whether they are singly or in groups.[71]

* In the 1951 case of Feiner v. New York, the Supreme Court ruled (6 to 3) that “the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker,” but if “the speaker passes the bounds of argument or persuasion and undertakes incitement to riot,” the police can silence the speaker “to preserve peace and order…”[72]

* In the early 1960s, the city of Memphis, Tennessee was desegregating its public parks, but only gradually in order to prevent interracial violence and riots. In the 1963 case of Watson v. Memphis, the Supreme Court unanimously ruled that the city must desegregate its parks immediately instead of gradually, because “constitutional rights may not be denied simply because of hostility to their assertion or exercise.”[73]

Public Schools & Universities

Students

* Because public schools and colleges are run by governments, they are required to respect the constitutional rights of students, including the right of free speech.[74]

* In the 1969 case of Tinker v. Des Moines, the U.S. Supreme Court ruled (7 to 2) that students were free to wear armbands in public schools as a protest against the Vietnam War. Citing earlier court rulings, the majority declared:

  • Students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
  • “In our system, state-operated schools may not be enclaves of totalitarianism.”
  • “In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.”
  • Students are free to express their views in school, as long as they don’t “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or infringe upon “the rights of others.”
  • Student conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”
  • “Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk … and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans….”[75]

* In the 1972 case of Healy v. James, the U.S. Supreme Court unanimously ruled that a public college could not deny recognition to a group of students who:

  • “desired to form a local chapter of Students for a Democratic Society (SDS).”
  • refused to disavow the tactics of other SDS chapters that had been a “catalytic force” for “widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson.”[76]

* Citing earlier court rulings, eight of the nine justices in Healy v. James declared:

  • “State colleges and universities are not enclaves immune from the sweep of the First Amendment.”
  • “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
  • The “precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”
  • “While a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a ‘heavy burden’ rests on the college to demonstrate the appropriateness of that action.”
  • “Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. … There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.”
  • “Denial of official recognition posed serious problems for the organization’s existence and growth. Its members were deprived of the opportunity to place announcements regarding meetings, rallies, or other activities in the student newspaper; they were precluded from using various campus bulletin boards; and—most importantly—nonrecognition barred them from using campus facilities for holding meetings.”
  • “Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students.”[77]

* In the 1981 case of Widmar v. Vincent, the U.S. Supreme Court ruled (8 to 1) that a public college could not deny the use of its grounds and facilities to students “for purposes of religious worship or religious teaching.” Citing earlier court rulings, seven of the nine justices declared:

  • The university “discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment.”
  • “The University’s institutional mission, which it describes as providing a “secular education” to its students … does not exempt its actions from constitutional scrutiny.”
  • The university argued “that it cannot offer its facilities to religious groups and speakers on the terms available to other groups without violating the Establishment Clause of the Constitution of the United States.” This forbids government from making laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”
  • “The University’s argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech.”
  • “Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards.”[78] [79]

* In 1995, Democratic President Bill Clinton issued a memo stating:

  • “It appears that some school officials, teachers and parents have assumed that religious expression of any type is either inappropriate, or forbidden altogether, in public schools.”
  • “I have been advised by the Department of Justice and the Department of Education that the First Amendment permits—and protects—a greater degree of religious expression in public schools than many Americans may now understand.”
  • “While the government may not use schools to coerce the consciences of our students, or to convey official endorsement of religion, the government’s schools also may not discriminate against private religious expression during the school day.”
  • “Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity.”
  • Students “may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable non-disruptive activities.”
  • “Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities.”
  • “Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination based on the religious content of their submissions.”[80]

* In recent years, some colleges have established “free speech zones” and barred students from exercising their right to free speech except in these confined areas. In 2018, Inside Higher Ed reported:

  • “Free-speech zones have generally faltered under legal scrutiny, despite persisting on a number of campuses.”
  • “For years, colleges have faced legal challenges to their free-speech zones and in many cases have done away with them.”
  • “In the last year, state legislatures, including those in Colorado, Tennessee and Utah, have stepped in and banned free-speech areas. Virginia, Missouri and Arizona also previously outlawed the zones.”[81]

Administration and Teachers

* In the 1962 case of Engel v. Vitale, the U.S. Supreme Court ruled (6 to 1) that public schools cannot lead students in reciting the following prayer, even if students are free to not participate or be excused while it is said: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” Citing earlier court rulings, six of the nine justices declared:

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.
The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.
It is true that … [this] prayer … does not amount to a total establishment of one particular religious sect to the exclusion of all others—that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that, because the … prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:
[I]t is proper to take alarm at the first experiment on our liberties…. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?

* In Engel v. Vitale, the dissenting justice cited earlier court rulings and wrote:

With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an “official religion” is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.
What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.
At the opening of each day’s Session of this Court we stand, while one of our officials invokes the protection of God. … Both the Senate and the House of Representatives open their daily Sessions with prayer.
In 1954, Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words “one Nation under God, indivisible, with liberty and justice for all.” In 1952, Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer. Since 1865, the words “IN GOD WE TRUST” have been impressed on our coins.
I do not believe that this Court, or the Congress, or the President has, by the actions and practices I have mentioned, established an “official religion” in violation of the Constitution. … What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their “firm Reliance on the Protection of divine Providence” when they proclaimed the freedom and independence of this brave new world.[82]

* In the 1963 case of Abington v. Schempp, the U.S. Supreme Court ruled (8 to 1) that public schools cannot engage in “religious exercises,” such as reading the Bible or saying prayers, even if the students are free to be excused from these exercises. Citing earlier court rulings, eight of the nine justices declared:

The reading of the verses, even without comment, possesses a devotional and religious character and constitutes, in effect, a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord’s Prayer.
[T]he effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers’ expense…. This freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.
It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools. We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” … We do not agree, however, that this decision in any sense has that effect.
In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.[83]

* In Abington v. Schempp, the dissenting justice cited earlier court rulings and wrote:

It might be argued here that parents who wanted their children to be exposed to religious influences in school could … send their children to private or parochial schools. But the consideration which renders this contention too facile to be determinative has already been recognized by the Court: “Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.”
It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that, if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or, at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.[84]

* In the 1968 case of Pickering v. Board of Education, the U.S. Supreme Court ruled (8 to 1) that a school district could not fire a teacher for publicly criticizing its school funding policies. Citing earlier court rulings, five of the nine justices declared:

[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.
The statements [of the teacher] are in no way directed towards any person with whom [he] would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here.
More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern…. On such a question free and open debate is vital to informed decision-making by the electorate.
In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.[85]

* In the 1969 case of Tinker v. Des Moines, seven of U.S. Supreme Court’s nine justices joined in a ruling that stated:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.[86]

* After the Supreme Court issued the two rulings above, federal courts have made varying rulings about the free speech rights of teachers.[87] For one example of many, in the 2007 case of Mayer v. Monroe County, a panel of three judges on the U.S. Court of Appeals for the Seventh Circuit cited several such rulings and declared that:

  • teachers don’t “have a constitutional right to introduce” their “own views on the subject but must stick to the prescribed curriculum—not only the prescribed subject matter, but also the prescribed perspective on that subject matter.”
  • “public-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority).”
  • “the school system does not ‘regulate’ teachers’ speech as much as it hires that speech. … A teacher hired to lead a social studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor….”
  • since “teachers hire out their own speech,” they “must provide the service for which employers are willing to pay….”
  • “the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives. Majority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination…. But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers.”[88]

Calls for Violence

* In the 1917 case of Schenck v. United States, the U.S. Supreme Court unanimously declared:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.[89]

* In the 1927 case of Whitney v. California, seven of nine U.S. Supreme Court justices declared that:

  • “the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom….”
  • “a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means….”[90] [91]

* In the 1969 case of Brandenburg v. Ohio, the U.S. Supreme Court unanimously overruled Whitney v. California. Citing earlier court decisions, all of the justices declared that:

  • “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
  • “the mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.”[92]

Intimidation

* In the 1992 case of R.A.V. v. City of St. Paul, five of the U.S. Supreme Court’s nine justices declared that:

  • “threats of violence are outside the First Amendment….”
  • laws prohibiting such threats are constitutional, because they protect “individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur….”[93]

* In the 2003 case of Virginia v. Black, the plurality of the U.S. Supreme Court declared that:

  • laws prohibiting “intimidation” are constitutional.
  • intimidation is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”
  • “the speaker need not actually intend to carry out the threat” for it to be illegal.
  • governments may “prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.”[94]

Defamation

* In the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court unanimously ruled that media outlets could not be sued for publishing objectively false accusations about the police and other public officials unless they prove that the media knew the accusations were false or acted with “reckless disregard.” Citing earlier court rulings, six of the nine justices declared:

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.
Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. … Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so.
[T]he First and Fourteenth Amendments … require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
As [James] Madison said … “the censorial power is in the people over the Government, and not in the Government over the people.”[95] [96]

* The other three justices in New York Times v. Sullivan declared that the First Amendment provides an “absolute, unconditional” right to criticize public officials, even if these critics do so with full knowledge that what they are saying is false.[97]

* In the 1974 case of Gertz v. Robert Welch, Inc., the U.S. Supreme Court ruled (5–4) that media outlets can be sued for publishing objectively false accusations about private citizens if:

  • the citizen is not a public figure.
  • the relevant state law allows for such lawsuits.
  • the media outlet acted negligently.
  • the citizen is not awarded money for anything other than “actual injury” unless he proves that the media outlet acted with “knowledge of falsity or reckless disregard for the truth.”[98] [99]

* Citing earlier court rulings, six of the nine justices declared:

Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust and wide-open” debate on public issues.
The First Amendment requires that we protect some falsehood in order to protect speech that matters. …
The first remedy of any victim of defamation is self-help—using available opportunities to contradict the lie or correct the error, and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy…. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times [v. Sullivan].[100]

* Among the other four justices in Gertz v. Robert Welch, Inc.:

  • two of them declared that private citizens should have greater abilities to sue for defamation than the majority decided, as accorded by many state laws.[101]
  • one of them declared that they should have less ability to sue for defamation than the majority decided.[102]
  • one of them declared that they should have no ability to sue for defamation.[103]

Footnotes

[1] Article: “Benjamin Franklin.” By Theodore Hornberger and Gordon S. Wood. Encyclopædia Britannica, August 9, 1999. Last updated 10/26/18. <www.britannica.com>

American printer and publisher, author, inventor and scientist, and diplomat. One of the foremost of the Founding Fathers, Franklin helped draft the Declaration of Independence and was one of its signers, represented the United States in France during the American Revolution, and was a delegate to the Constitutional Convention. He made important contributions to science, especially in the understanding of electricity, and is remembered for the wit, wisdom, and elegance of his writing. …

Franklin’s fame spread rapidly. The experiment he suggested to prove the identity of lightning and electricity was apparently first made in France before he tried the simpler but more dangerous expedient of flying a kite in a thunderstorm. But his other findings were original. He created the distinction between insulators and conductors. He invented a battery for storing electrical charges. He coined new English words for the new science of electricity—conductor, charge, discharge, condense, armature, electrify, and others. He showed that electricity was a single “fluid” with positive and negative or plus and minus charges and not, as traditionally thought, two kinds of fluids. And he demonstrated that the plus and minus charges, or states of electrification of bodies, had to occur in exactly equal amounts—a crucial scientific principle known today as the law of conservation of charge….

[2] Harper’s Book of Facts. Edited by Charlton T. Lewis. Harper & Brothers, 1906. <books.google.com>

“About the time of the Revolution, societies of prominent men were formed for the purpose of ameliorating the condition of the slaves. Pennsylvania was the first state to organize such a society, 1787, with Franklin as president.”

[3] Book: The First American: The Life and Times of Benjamin Franklin. By H.W. Brands. Anchor Books, 2002.

Pages 29–30:

In June 1722 James printed a faked letter to the editor, in which the writer (that is, James himself) suggested that the authorities were remiss in failing to pursue with adequate vigor pirates who were afflicting the New England coast that season. Of the captain named to head the posse, the Courant said sarcastically, “ ‘Tis thought he will sail sometime this month, if wind and weather permit.”

For this disrespect the Massachusetts General Court ordered that James be jailed. Many observers judged the reaction disproportionate to the provocation. … In connection with his brother’s arrest, Ben was briefly detained and questioned. But on the reasoning that as an apprentice he was legally required to follow his master’s orders, the magistrates released him.

[4] Article: “United States War of Independence.” Encyclopædia Britannica Ultimate Reference Suite 2004.

also called American Revolution or American Revolutionary War (1775–83), insurrection by which 13 of Great Britain's North American colonies won political independence and went on to form the United States of America.”

[5] Book: The First American: The Life and Times of Benjamin Franklin. By H.W. Brands. Anchor Books, 2002.

Page 26:

Consequently it was with pleasure that James [Franklin] awoke one morning to discover beneath the door of the print shop a contribution from a genuine outsider. Actually, this contributor was not an outsider at all; it was Ben Franklin…. Ben carefully disguised his handwriting and signed the letter “Silence Dogood. … James shared the Dogood letter with his colleagues; they registered equal approval. James ran it in the April 2, 1722, issue of the Courant.

Page 27:

Almost certainly none of the readers of the Courant guessed that this ironically knowing voice belonged to a sixteen-year-old boy; neither did James, who inserted after Silence Dogood’s first epistle an invitation for more. …

… During the next six months Ben continued his correspondence, delivering fifteen Dogood letters in all.

Page 30:

As a result of James’s imprisonment, Ben found himself the acting publisher and managing editor of the Courant. … Ben’s recent surreptitious success with Silence Dogood had not reduced his opinion of himself; now he was in charge of the whole printing and publishing operation. It was enough to swell the vanity of any sixteen-year-old.

“I made bold to give our rulers some rubs,” he boasted afterward. On behalf of freethinkers everywhere—not to mention James, languishing in jail—Silence Dogood contradicted her Christian name. “Without freedom of thought there can be no such thing as wisdom,” she quoted from an English paper; “and no such thing as public liberty without freedom of speech, which is the right of every man. …”

[6] Commentary: “Silence Dogood, No. 8,” By Benjamin Franklin. New-England Courant, July 9, 1722. <founders.archives.gov>

I prefer the following Abstract from the London Journal to any Thing of my own, and therefore shall present it to your Readers this week without any further Preface.5

Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.

This sacred Privilege is so essential to free Governments, that the Security of Property, and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Publick Traytors. …

Guilt only dreads Liberty of Speech, which drags it out of its lurking Holes, and exposes its Deformity and Horrour to Daylight. Horatius, Valerius, Cincinnatus, and other vertuous and undesigning Magistrates of the Roman Commonwealth, had nothing to fear from Liberty of Speech. …

5 London Journal, No. LXXX, Feb. 4, 1720/1.

[7] Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Pages 285–310:

On Freedom of Speech and the Press. *

From the Pennsylvania Gazette, November 1737.

* This essay, in regard to its genuineness, may fairly be considered in the same light as those preceding it, on Government. Though written with ability, and probably expressing the sentiments of Franklin, yet the characteristics of the style are not such as to make it evident, on that ground alone, that the performance came from his pen. It is proper to state, however, that Mr. Duane has included it in his edition, and thus given it the sanction of his judgment.—Editor.

[8] Article: “United States War of Independence.” Encyclopædia Britannica Ultimate Reference Suite 2004.

also called American Revolution or American Revolutionary War (1775–83), insurrection by which 13 of Great Britain's North American colonies won political independence and went on to form the United States of America.”

[9] Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Pages 285–310:

On Freedom of Speech and the Press.

From the Pennsylvania Gazette, November 1737.

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates; this privilege in all ages has been, and always will be abused. The best of men could not escape the censure and envy of the times they lived in. Yet this evil is not so great as it may appear at first sight. A magistrate, who sincerely aims at the good of society, will always have the inclinations of a great majority on his side, and an impartial posterity will not fail to render him justice.

Those abuses of the freedom of speech are the excesses of liberty. They ought to be repressed; but to whom dare we commit the care of doing it? An evil magistrate intrusted with power to punish for words, would be armed with a weapon the most destructive and terrible. Under pretence of pruning off the exuberant branches, he would be apt to destroy the tree.

[10] Article: “Augustus.” By Michael Grant. Encyclopædia Britannica, July 26, 1999. Last updated 10/12/18. <www.britannica.com>

Alternative Titles: Augustus Caesar, Gaius Julius Caesar Octavianus, Gaius Octavius, Octavian …

Title / Office

Triumvirate, Ancient Rome (43BC–32BC)

Emperor, Roman Empire (27BC–14)

[11] Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Pages 285–310: “On Freedom of Speech and the Press

Pages 285–286:

Augustus Caesar, under the specious pretext of preserving the character of the Romans from defamation, introduced the law whereby libelling was involved in the penalties of treason against the state. This law established his tyranny; and, for one mischief which it prevented, ten thousand evils, horrible and afflicting, sprung up in its place. Thenceforward every person’s life and fortune depended on the vile breath of informers. The construction of words being arbitrary, and left to the decision of the judges, no man could write or open his mouth without being in danger of forfeiting his head.

[12] Article: “Henry VIII.” By Geoffrey R. Elton and John S. Morrill. Encyclopædia Britannica, July 28, 1999. Modified 8/17/18. <www.britannica.com>

“Title / Office … King, England (1509–1547)”

[13] Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Pages 285–310: “On Freedom of Speech and the Press

Page 288: “During the reign of Henry the Eighth, a high-spirited monarch, every light expression, which happened to displease him, was construed by his supple judges into a libel, and sometimes extended to high treason.”

[14] Article: “Charles I.” By Maurice Ashley. Encyclopædia Britannica, July 28, 1999. Modified 12/7/18. <www.britannica.com>

Title / Office

King, England (1625–1649)

King, Scotland (1625–1649)

King, Ireland (1625–1649)

[15] Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Pages 285–310: “On Freedom of Speech and the Press

Pages 289–291:

The Star-chamber, which, in the time of Elizabeth, had gained a good repute, became an intolerable grievance in the reign of this learned monarch.

But it did not arrive at its meridian altitude till Charles the First began to wield the sceptre. As he had formed a design to lay aside parliaments, and subvert the popular part of the constitution, he very well knew, that the form of government could not be altered without laying a restraint on freedom of speech and the liberty of the press; therefore he issued his royal mandate, under the great seal of England, whereby he commanded his subjects, under pain of his displeasure, not to prescribe to him any time for parliaments. Lord Clarendon, upon this occasion, is pleased to write, “ That all men took themselves to be prohibited, under the penalty of censure (the censure of the Star-chamber, which few men cared to incur,) so much as to speak of parliaments, or so much as to mention, that parliaments were again to be called.”

The king’s ministers, to let the nation see they were absolutely determined to suppress all freedom of speech, caused a prosecution to be carried on by the attorney-general against three members of the House of Commons, for words spoken in that House, Anno 1628. The members pleaded to the information, that expressions in Parliament ought only to be examined and punished there. This notwithstanding, they were all three condemned as disturbers of the state. One of these gentlemen, Sir John Eliott, was fined two thousand pounds, and sentenced to lie in prison till it was paid. His lady was denied admittance to him, even during his sickness; consequently his punishment comprehended an additional sentence of divorce. This patriot, having endured many years’ imprisonment, sunk under the oppression, and died in prison. This was such a wound to the authority and rights of Parliament, that, even after the restoration, the judgment was reversed by Parliament.

That Englishmen of all ranks might be effectually intimidated from publishing their thoughts on any subject, except on the side of the court, his Majesty’s ministers caused an information, for several libels, to be exhibited in the Star-chamber against Messrs. Prynne, Burton, and Bastwick. They were each of them fined five thousand pounds, and adjudged to lose their ears on the pillory, to be branded on the cheeks with hot irons, and to suffer perpetual imprisonment! Thus these three gentlemen, each of worth and quality in their several professions, viz. divinity, law, and physic, were, for no other offence, than writing on controverted points of church-government, exposed on public scaffolds, and stigmatized and mutilated as common signal rogues, or the most ordinary malefactors.

Such corporal punishments, inflicted with all the circumstances of cruelty and infamy, bound down all other gentlemen, under a servile fear of the like treatment; so that for several years no one durst publicly speak or write in defence of the liberties of the people, which the king’s ministers, his privy council, and his judges had trampled under their feet. The spirit of the administration looked hideous and dreadful; the hate and resentment, which the people conceived against it, for a long time lay smothered in their breasts, where those passions festered and grew venomous, and at last discharged themselves by an armed and vindictive hand.

[16] Article: “Charles II.” By Henry Godfrey Roseveare. Encyclopædia Britannica, July 28, 1999. Last updated November 5, 2018. <www.britannica.com>

Title / Office

King, England (1660–1685)

King, Ireland (1660–1685)

King, Scotland (1660–1685)

[17] Book: The Works of Benjamin Franklin (Volume II). Hilliard, Gray, and Company, 1840.

Pages 285–310: “On Freedom of Speech and the Press

Pages 291–292:

King Charles the Second aimed at the subversion of the government, but concealed his designs under a deep hypocrisy; a method which his predecessor, in the beginning of his reign, scorned to make use of. The father, who affected a high and rigid gravity, discountenanced all barefaced immorality. The son, of a gay, luxurious disposition, openly encouraged it. Thus, their inclinations being different, the restraint laid on some authors, and the encouragement given to others, were managed after a different manner.

In this reign a licenser was appointed for the stage and the press ; no plays were encouraged but what had a tendency to debase the minds of the people. The original design of comedy was perverted ; it appeared in all the shocking circumstances of immodest double entendre, obscene description, and lewd representation. Religion was sneered out of countenance, and public spirit ridiculed as an awkward, old-fashioned virtue; the fine gentleman of the comedy, though embroidered all over with wit, was a consummate debauchee; and a fine lady, though set off with a brilliant imagination, was an impudent coquette. Satire, which in the hands of Horace, Juvenal, and Boileau, was pointed with a generous resentment against vice, now became the declared foe of virtue and innocence. As the city of London, in all ages, as well as the time we are speaking of, was remarkable for its opposition to arbitrary power, the poets levelled all their artillery against the metropolis, in order to bring the citizens into contempt. An alder man was never introduced on the theatre, but under the complicated character of a sneaking, canting hypocrite, a miser and a cuckold; while the court wits, with impunity, libelled the most valuable part of the nation. Other writers, of a different stamp, with great learning and gravity, endeavoured to prove to the English people, that slavery was jure divino [the divine right of kings]. Thus the stage and the press, under the direction of a licenser, became battering engines against religion, virtue, and liberty. Those who had courage enough to write in their defence were stigmatized as schismatics, and punished as disturbers of the government.

[18] Article: “Washington, George.” Contributor: Philander D. Chase (Ph.D., Editor, The Papers of George Washington). World Book Encyclopedia, 2007 Deluxe Edition.

“In three important ways, Washington helped shape the beginning of the United States. First, he commanded the Continental Army that won American independence from Britain in the Revolutionary War. Second, Washington served as president of the convention that wrote the United States Constitution. Third, he was elected the first president of the United States.”

[19] Book: The Debates in the Federal Convention of 1787, Which Framed the Constitution of the United States of America, Reported by James Madison, a Delegate From the State of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. <avalon.law.yale.edu>

May 25, 1787 (First day of the Constitutional Convention):

Robert Morris … informed the members assembled that by the instruction & in behalf, of the deputation of Pena. he proposed George Washington Esqr. late Commander in chief for president of the Convention. Mr. JNo. RUTLIDGE seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of Genl. Washington forbade any observations on the occasion which might otherwise be proper. General WASHINGTON was accordingly unanimously elected by ballot, and conducted to the Chair by Mr. R. Morris and Mr. Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.

[20] Book: The Life of George Washington, Commander in Chief of the American Forces,

During the War Which Established the Independence of His Country, and First President of the United States (Volume 2). By John Marshall. Compiled Under the Inspection of the Honourable Bushrod Washington, From Original Papers, Bequeathed to Him by His Deceased Relative. James Crissy, and Thomas Cowperthwait and Co., 1843.

Page 41:

March, 1783

In consequence of these divisions on points of the deepest interest, the business of the army advanced slowly, and the important question respecting the commutation of their half pay remained undecided, when intelligence was received of the signature of the preliminary and eventual articles of peace between the United States and Great Britain.

Page 45:

On the 15th [of March 1783], the convention of officers assembled, and General Gates took the chair. The Commander-in-chief [George Washington] then addressed them in the following terms.

Gentlemen,—

“By an anonymous summons, an attempt has been made to convene you together. How inconsistent with the rules of propriety, how unmilitary, and how subversive of all order and discipline, let the good sense of the army decide.

“In the moment of this summons, another anonymous production was sent into circulation, addressed more to the feelings and passions than to the judgment of the army. The author of the piece is entitled to much credit for the goodness of his pen; and I could wish he had as much credit for the rectitude of his heart; for as men see through different optics, and are induced by the reflecting faculties of the mind, to use different means to attain the same end, the author of the address should have had more charity, than to mark for suspicion the man who should recommend moderation and longer forbearance; or, in other words, who should not think as he thinks, and act as he advises.

Page 48:

“With respect to the advice given by the author, to suspect the man who shall recommend moderate measures and longer forbearance, I spurn it, as every man who regards that liberty, and reveres that justice for which we contend, undoubtedly must; for if men are to be precluded from offering their sentiments on a matter which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us. The freedom of speech may be taken away, and dumb and silent, we may be led like sheep to the slaughter. I can not in justice to my own belief, and what I have great reason to conceive is the intention of congress, conclude this address, without giving it as my decided opinion, that that honourable body entertain exalted sentiments of the services of the army, and, from a full conviction of its merits and sufferings, will do it complete justice. That their endeavours to discover and establish funds for this purpose have been unwearied, and will not cease until they have succeeded, I have not a doubt. …”

[21] Article: “Fascism.” Encyclopædia Britannica Ultimate Reference Suite 2004.

“Joseph Goebbels, Hitler’s minister of propaganda, maintained that the people never rule themselves and claimed that every history-making epoch had been created by aristocrats.”

[22] Article: “Nazism.” Encyclopædia Britannica, July 20, 1998. Last updated 1/23/18. <www.britannica.com>

Nazism, also spelled Naziism, in full National Socialism, German Nationalsozialismus, totalitarian movement led by Adolf Hitler as head of the Nazi Party in Germany.”

[23] Pamphlet: Nature and Form of National Socialism. By Joseph Goebbels, 1935. Partially translated in the book Nazi Conspiracy and Aggression (Volume V). Office of the United States, Chief of Counsel For Prosecution of Axis Criminality, 1946. Page 88. <ia801207.us.archive.org>

Shortly before we took over the power, science tried to prove that this or that revolutionary move was not in accordance with the existing laws and people were not afraid to hand over state political decisions to the supreme court. We only smiled at that time, because while science asserted that it should not be as it was, things have come through long ago. Science only has the right to establish a new set of laws from existing conditions and therefore the condition which has arisen by transposition of our National Socialistic set of laws to the State is a law.

It represents the normal condition of the people and is beyond criticism. Revolution has become a reality and only crazy reactionaries can believe that anything we produce can be cancelled.

National Socialism is now in the process of slowly stabilizing the new legality in Germany which was created by revolution. This is basically different from the former legality and is also beyond the possibilities of criticism, which National Socialism could itself apply in the old system. When democracy granted democratic methods for us in the times of opposition, this was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we use democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of opposition. In spite of this, we can assert that our government meets the rules of an ennobled democracy.

We have been sovereign masters of criticism and are allowed to assume unanimously the standpoint permitting the right of criticism. With this one difference: The right to criticize, provided that it should make sense and not democratic nonsense, in order to be useful to the people which after all has to stand above all political matters. This right can be granted only to the wiser people over the more stupid ones and never the other way around. It remains only to be proven that we National Socialists were apparently wiser during the opposition.

[24] The Black Book of Communism: Crimes, Terror, Repression. By Stephane Courtois and others. Translated by Jonathan Murphy and Mark Kramer. Harvard University Press, 1999.

Foreword: “The Uses of Atrocity.” By Martin Malia.

Pages X–XI:

The shocking dimensions of the Communist tragedy, however, are hardly news to any serious student of twentieth-century history, at least when the different Leninist regimes are taken individually. The real news is that at this late date the truth should come as such a shock to the public at large. To be sure, each major episode of the tragedy—Stalin’s Gulag, Mao Zedong’s Great Leap Forward and his Cultural Revolution, Pol Pot’s Khmer Rouge—had its moment of notoriety. But these horrors soon faded away into “history”; nor did anyone trouble to add up the total and set it before the public. The surprising size of this total, then, partly explains the shock the volume provoked.

The full power of the shock, however, was delivered by the unavoidable comparison of this sum with that for Nazism, which at an estimated 25 million turns out to be distinctly less murderous than Communism.

Introduction: “The Crimes of Communism.” By Stephane Courtois.

Pages 2–4:

Having gone beyond individual crimes and small-scale ad-hoc massacres, the Communist regimes, in order to consolidate their grip on power, turned mass crime into a full-blown system of government. After varying periods, ranging from a few years in Eastern Europe to several decades in the U.S.S.R. and China, the terror faded, and the regimes settled into a routine of administering repressive measures on a daily basis, as well as censoring all means of communication, controlling borders, and expelling dissidents. However, the memory of the terror has continued to preserve the credibility, and thus the effectiveness, of the threat of repression. …

… This book is one of the first attempts to study Communism with a focus on its criminal dimensions, in both the central regions of Communist rule and the farthest reaches of the globe. Some will say that most of these crimes were actions conducted in accordance with a system of law that was enforced by the regimes’ official institutions, which were recognized internationally and whose heads of state continued to be welcomed with open arms. But was this not the case with Nazism as well? The crimes we shall expose are to be judged not by the standards of Communist regimes, but by the unwritten code of the natural laws of humanity. …

Thus we have delimited crimes against civilians as the essence of the phenomenon of terror. These crimes tend to fit a recognizable pattern even if the practices vary to some extent by regime. The pattern includes execution by various means, such as firing squads, hanging, drowning, battering, and, in certain cases, gassing, poisoning, or “car accidents”; destruction of the population by starvation, through man-made famine, the withholding of food, or both; deportation, through which death can occur in transit (either through physical exhaustion or through confinement in an enclosed space), at one’s place of residence, or through forced labor (exhaustion, illness, hunger, cold). Periods described as times of “civil war” are more complex—it is not always easy to distinguish between events caused by fighting between rulers and rebels and events that can properly be described only as a massacre of the civilian population.

Nonetheless, we have to start somewhere. The following rough approximation, based on unofficial estimates, gives some sense of the scale and gravity of these crimes:

U.S.S.R.: 20 million deaths

China: 65 million deaths

Vietnam: 1 million deaths

North Korea: 2 million deaths

Cambodia: 2 million deaths

Eastern Europe: 1 million deaths

Latin America: 150,000 deaths

Africa: 1.7 million deaths

Afghanistan: 1.5 million deaths

The international Communist movement and Communist parties not in power: about 10,000 deaths

The total approaches 100 million people killed.

Page 8:

Active intolerance was high on the Communists’ agenda. It was Mikhail Tomsky, the leader of the Soviet trade unions, who in the 13 November 1927 issue of Trud (Labor) stated: “We allow other parties to exist. However, the fundamental principle that distinguishes us from the West is as follows: one party rules, and all the others are in jail!”

Page 9:

However, this argument highlights one particular feature of many Communist regimes—their systematic use of famine as a weapon. The regime aimed to control the total available food supply and, with immense ingenuity, to distribute food purely on the basis of “merits” and “demerits” earned by individuals. This policy was a recipe for creating famine on a massive scale. Remember that in the period after 1918, only Communist countries experienced such famines, which led to the deaths of hundreds of thousands, and in some cases millions, of people. And again in the 1980s, two African countries that claimed to be Marxist-Leninist, Ethiopia and Mozambique, were the only such countries to suffer these deadly famines.

[25] Article: “Continental Congress.” Encyclopædia Britannica Ultimate Reference Suite 2004.

(1774–89), in the period of the American Revolution, the body of delegates who spoke and acted collectively for the people of the colony-states that later became the United States of America. The term most specifically refers to the bodies that met in 1774 and 1775–81 and respectively designated as the First Continental Congress and the Second Continental Congress.

In the spring of 1774, the British Parliament’s passage of the Intolerable (Coercive) Acts, including the closing of the port of Boston, provoked keen resentment in the colonies. The First Continental Congress, convened in response to the Acts by the colonial Committees of Correspondence, met in Philadelphia on September 5, 1774. Fifty-six deputies represented all the colonies except Georgia. …

Meeting in secret session, the body rejected a plan for reconciling British authority with colonial freedom. Instead, it adopted a declaration of personal rights, including life, liberty, property, assembly, and trial by jury. The declaration also denounced taxation without representation and the maintenance of the British army in the colonies without their consent. Parliamentary regulation of American commerce, however, was willingly accepted.

[26] Declaration of Independence. Second Continental Congress, July 4, 1776. <www.archives.gov>

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. …

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

[27] Federalist Papers. By Alexander Hamilton, John Jay, and James Madison. October 27, 1787–May 28, 1788. <www.gutenberg.org>

Federalist Paper 1. By Alexander Hamilton, October 27, 1787:

After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Federalist Paper 2. By John Jay and Alexander Hamilton, October 31, 1787:

Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.

[28] Book: The Debates in the Federal Convention of 1787, Which Framed the Constitution of the United States of America, Reported by James Madison, a Delegate From the State of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. <avalon.law.yale.edu>

June 6, 1787:

Mr. [Roger] Sherman … The objects of the Union, he thought were few. 1. defence agst. foreign danger. 2. agst. internal disputes & a resort to force. 3. Treaties with foreign nations. 4. regulating foreign commerce, & drawing revenue from it. These & perhaps a few lesser objects alone rendered a Confederation of the States necessary. All other matters civil & criminal would be much better in the hands of the States. The people are more happy in small than large States. States may indeed be too small as Rhode Island, & thereby be too subject to faction. Some others were perhaps too large, the powers of Govt. not being able to pervade them. He was for giving the General Govt. power to legislate and execute within a defined province. …

Mr. [James] Madison … differed from the member from Connecticut [Mr. Sherman] in thinking the objects mentioned to be all the principal ones that required a National Govt. Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than any thing else, produced this convention. …

The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Govt. the Majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st. place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d. place, that in case they shd. have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils wch. have been experienced.

[29] The states ratified the Constitution on these dates:

Delaware, December 7, 1787

Pennsylvania, December 12, 1787

New Jersey, December 18, 1787

Georgia, January 2, 1788

Connecticut, January 9, 1788

Massachusetts, February 6, 1788

Maryland, April 28, 1788

South Carolina, May 23, 1788

New Hampshire, June 21, 1788

[30] Constitution of the United States. Signed September 17, 1787. <justfacts.com>

Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, Clause 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article II, Section 1, Clause 8:

Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation … “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend Constitution of the United States. …”

[31] Book: The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Edited by Patrick T. Conley & John P. Kaminski. Madison House Publishers, 1992. Pages 461–514: “The Bill of Rights: A Bibliographic Essay.” By Gaspare J. Saladino.

Page 484:

The best historical treatments of the legislative history of the Bill of Rights in the first federal Congress are… [six works mentioned]. All agree that James Madison, against considerable odds, took the lead in the House of Representatives, and that without his efforts there probably would have been no Bill of Rights. Madison’s amendments, a distillation of those from the state conventions (especially Virginia’s) were, for the most part, those that the House eventually adopted.

[32] Article: “Madison, James.” Contributor: Robert J. Brugger (Ph.D., Editor, Maryland Historical Magazine, Maryland Historical Society). World Book Encyclopedia, 2007 Deluxe Edition.

Madison, James (1751–1836), the fourth president of the United States, is often called the Father of the Constitution. He played a leading role in the Constitutional Convention of 1787, where he helped design the checks and balances that operate among Congress, the president, and the Supreme Court. He also helped create the U.S. federal system, which divides power between the central government and the states.

[33] Book: The Debates in the Federal Convention of 1787, Which Framed the Constitution of the United States of America, Reported by James Madison, a Delegate From the State of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. <avalon.law.yale.edu>

June 6, 1787:

All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. – These observations are verified by the Histories of every Country antient & modern. In Greece & Rome the rich & poor, the creditors & debtors, as well as the patricians & plebians alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces: the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Govt. the Majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st. place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d. place, that in case they shd. have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils wch. have been experienced.

[34] Book: The Debates in the Federal Convention of 1787, Which Framed the Constitution of the United States of America, Reported by James Madison, a Delegate From the State of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. <avalon.law.yale.edu>

NOTE: The objective of implementing checks and balances to curtail government power pervades these proceedings. For two examples of many:

1) On May 31, 1787, Edmund Randolph of Virginia observed:

that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for agst. this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.

2) On September 12, 1787, James Madison asserted:

It was an important principle in this & in the State Constitutions to check legislative injustice and encroachments. The Experience of the States had demonstrated that their checks are insufficient.

[35] Constitution of the United States. Signed September 17, 1787. Enacted June 21, 1788. <justfacts.com>

Article V (<www.justfacts.com>):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

[36] Federalist Papers. By Alexander Hamilton, John Jay, and James Madison. October 27, 1787–May 28, 1788. <www.gutenberg.org>

Federalist Paper 10. By James Madison, November 22, 1787:

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. …

… To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

Federalist Paper 43. By James Madison, January 23, 1788:

The Fourth class [of constitutional powers] comprises the following miscellaneous powers: …

8. “To provide for amendments to be ratified by three fourths of the States under two exceptions only.”

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.

Federalist Paper 51. By James Madison, February 6, 1788:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. …

… In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Federalist Paper 85. By Alexander Hamilton, May 28, 1788:

By the fifth article of the plan, the Congress will be obliged “on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.” … Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

[37] Bill of Rights. Ratified December 15, 1791. <www.justfacts.com>

Preamble to The Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

[38] First Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[39] Ruling: Barron v. City of Baltimore. U.S. Supreme Court, February 16, 1833. Decided 6–0. Majority: Marshall, Duvall, Johnson, McLean, Story, Thompson. Not participating: Baldwin. <caselaw.findlaw.com>

The plaintiff in error contends, that it comes within that clause in the fifth amendment to the constitution, which inhibits the taking of private property for public use, without just compensation. He insists, that this amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.

[40] Webpage: “Civil War Facts.” American Battlefield Trust, Accessed July 24, 2018 at <www.battlefields.org>

The war began when the Confederates bombarded Union soldiers at Fort Sumter, South Carolina on April 12, 1861. The war ended in Spring, 1865. Robert E. Lee surrendered the last major Confederate army to Ulysses S. Grant at Appomattox Courthouse on April 9, 1865. The last battle was fought at Palmito Ranch, Texas, on May 13, 1865. … The Northern armies were victorious, and the rebellious states returned to the Union.

[41] 13th Amendment to the U.S. Constitution. Ratified December 6, 1865. <www.justfacts.com>

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

[42] Book: The American Constitution: Its Origins and Development (3rd edition). By Alfred H. Kelly & Winfred A. Harbison. W. W. Norton & Company, 1963.

Page 454:

Well before the war ended, this block, which came to be known as Radicals or Radical Republicans, assumed a more positive role in opposing the reconstruction program and favoring more extreme measures. This group objected to Lincoln’s program on several counts. First, while the program implied the abolition of slavery, it guaranteed neither Negro suffrage nor Negro civil rights. Many Radicals were convinced that the Negro ought to be elevated forcibly to a position of civil, social and political equality with the whites.

Page 459: “The Civil Rights Bill, passed by Congress on March 13, embodied another and more detailed attempt by the Radicals to extend federal guarantees over Negro civil rights.”

Page 460: “[Andrew] Johnson vetoed the bill, cogently presenting the same objections as he had stated against the Freedmen’s Bureau Bill, but Congress on April 9 passed the law over his veto.”

[43] “An Act to Protect All Persons in the United States in Their Civil Rights, and Furnish the Means of Their Vindication.” 39th U.S. Congress. Enacted into law on April 9, 1866 when Congress overrode a veto by President Andrew Johnson. <www.loc.gov>

Chap. XXXI. – An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Sec. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. …

Sec. 6. And be it further enacted, That any person who shall knowingly and willfully obstruct, hinder, or prevent any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act … [shall] be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months ….

[44] Book: The American Constitution: Its Origins and Development (3rd edition). By Alfred H. Kelly & Winfred A. Harbison. W. W. Norton & Company, 1963.

Page 458: “By early January of 1866, the Radicals [Radical Republicans] were openly formulating their own program, and so preparing for a decisive conflict with the President. … A series of tentative Radical measures eventually led to the formulation of the Fourteenth Amendment to the Constitution, adopted by Congress in June 1866.”

Pages 460–461:

Although the Democratic minority continued to support the [Johnson] administration, the Radical Republican majority promptly passed all important reconstruction measures over Johnson’s veto. …

After some further delay, the Joint Committee on April 30 [1866] reported out a far more comprehensive constitutional amendment, destined to emerge with some modifications as the Fourteenth Amendment. …

These provisions, largely the work of Representative John A. Bingham of Ohio, were intended to remove all doubt as to the constitutionality of the Civil Rights Act, as Stevens presently made clear in debate.

[45] Book: Processes of Constitutional Decision-Making: Cases and Materials (5th edition). By Paul Brest and others. Aspen Publishers, 2006.

Senator Jacob Howard, Speech Introducing the Fourteenth Amendment

Speech delivered in the U.S. Senate, May 23, 1866

[Senator Jacob Howard of Michigan was a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment. He was the floor manager for the Amendment in the Senate. In this speech, he introduces the Amendment on the floor of the Senate and explains its purposes.]

I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced th[e] committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. …

The first section [of the 14th Amendment] … relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. …

To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees….

[46] 14th Amendment to the U.S. Constitution. Ratified July 9, 1868. <www.justfacts.com>

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

[47] Webpage: “Jacob Merritt Howard.” Historic Elmwood Cemetery & Foundation. Accessed April 24, 2017 at <www.elmwoodhistoriccemetery.org>

His once familiar name should continue to be honored as one of Michigan’s and the country’s most able and highly influential political figures. … He was Michigan Attorney General from 1855 to 1861. As one of the founders of the Republican Party, he made political and legislative history in Michigan and the nation’s capitol.

… His most significant body of work was done during the period from 1862 to 1871 while he was the U. S. Senator from Michigan. …

Following the Civil War, his actions led to the creation of the 13th, 14th and 15th Amendments to the U.S. Constitution.

[48] Congressional Globe, May 23, 1866. Pages 2764–2768. <memory.loc.gov>

Mr. Howard. Mr. President, I regret that the state of the health of the honorable Senator from Maine [Mr. Fessenden] who is chairman, on the part of the Senate, of the joint committee of fifteen, is such as to disable him from opening the discussion of this grave and important measure. I was anxious that he should take the lead, and the prominent lead, in the conduct of this discussion, and still entertain the hope that before it closes the Senate will have the benefit of a full and ample statement of his views.

For myself, I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced that committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish.

The joint resolution creating that committee entrusted them with a very important inquiry, an inquiry involving a vast deal of attention and labor. They were instructed to inquire into the condition of the insurgent States, and authorized to report by bill or otherwise at their discretion. I believe that I do not overstate the truth when I say that no committee of Congress has ever proceeded with more fidelity and attention to the matter entrusted to them. They have been assiduous in discharging their duty. They have instituted an inquiry, so far as it was practicable for them to do so, into the political and social condition of the insurgent States. …

One result of their investigations has been the joint resolution for the amendment of the Constitution of the United States now under consideration. After most mature deliberation and discussion, reaching through weeks and even months, they came to the conclusion that it was necessary, in order to restore peace and quiet to the country and again to impart vigor and efficiency to the laws, and especially to obtain something in the shape of a security for the future against the recurrence of the enormous evils under which the country has labored for the last four years, that the Constitution of the United States ought to be amended; and the project which they have now submitted is the result of their deliberations upon that subject.

The first section of the amendment they have submitted for the consideration of the two Houses relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares that—

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. It also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of the State the equal protection of its laws. …

The next clause is a very simple one. I have already remarked upon it; and shall spend no more time upon it. It gives to Congress power to enforce by appropriate legislation all the provisions of this article of amendment. Without this clause, no power is granted to Congress by the amendment or any one of its sections. It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes the rights of persons or property. I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment. …

The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. …

To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature —to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.” Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body? But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism.

As I have already remarked, section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has, under this amendment, is derived, not from that section, but from the fifth section, which gives it authority to pass laws which are appropriate to the attainment of the great object of the amendment. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining.

[49] Ruling: Terminiello v. Chicago. U.S. Supreme Court, May 16, 1949. Decided 5–4. Majority: Douglas, Black, Reed, Douglas, Murphy, Rutledge. Minority: Vinson, Frankfurter, Jackson, Burton. <www.law.cornell.edu>

Majority:

Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago1 and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity with over eight hundred persons present. Others were turned away. Outside of the auditorium a crowd of about one thousand persons gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to maintain order; but they were not able to prevent several disturbances. The crowd outside was angry and turbulent.

Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation’s welfare. …

The argument here has been focused on the issue of whether the content of petitioner’s speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. … We do not reach that question, for there is a preliminary question that is dispositive of the case.

As we have noted, the statutory words “breach of the peace” were defined in instructions to the jury to include speech which “stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance. …”

The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon … it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire … is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. … There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.

1 “All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city … shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense.”

[50] Ruling: Terminiello v. Chicago. U.S. Supreme Court, May 16, 1949. Decided 5–4. Majority: Douglas, Black, Reed, Douglas, Murphy, Rutledge. Minority: Vinson, Frankfurter, Jackson, Burton. <www.law.cornell.edu>

Dissent (Vinson):

The instruction informed the jury that they could return a verdict of guilty if they found that the petitioner’s speech was one which “stirs the public to anger, invites public dispute, brings about a condition of unrest, or creates a disturbance.” If the petitioner’s counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity of that instruction I would agree with the Court’s decision. But the record gives me no basis on which to believe that the Illinois courts would not also have so decided if that issue had been presented to them.

Dissent (Frankfurter, Jackson, Burton):

We have no authority to meddle with such a judgment unless some claim under the Constitution or the laws of the United States has been made before the State court whose judgment we are reviewing and unless the claim has been denied by that court.1 How could there have been a denial of a federal claim by the Illinois courts, i.e., that the trial judge offended the Constitution of the United States in what he told the jury, when no such claim was made? …

… Freedom of speech undoubtedly means freedom to express views that challenge deep-seated, sacred beliefs and to utter sentiments that may provoke resentment. But those indulging in such stuff as that to which this proceeding gave rise are hardly so deserving as to lead this Court to single them out as beneficiaries of the first departure from the restrictions that bind this Court in reviewing judgments of State courts. Especially odd is it to bestow such favor not for the sake of life or liberty, but to save a small amount of property—$100, the amount of the fine imposed upon the petitioner in a proceeding which is civil, not criminal, under the laws of Illinois, and thus subject only to limited review.

Dissent (Jackson):

The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello’s speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore.

But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two. When the trial judge instructed the jury that it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing alarm, he was not speaking of these as harmless or abstract conditions. He was addressing his words to the concrete behavior and specific consequences disclosed by the evidence. He was saying to the jury, in effect, that if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace. When the light of the evidence not recited by the Court is thrown upon the Court’s opinion, it discloses that underneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order. …

I am unable to see the local authorities have transgressed the Federal Constitution. Illinois imposed no prior censorship or suppression upon Terminiello. …

A trial court and jury has found only that in the context of violence and disorder in which it was made, this speech was a provocation to immediate breach of the peace and therefore cannot claim constitutional immunity from punishment. Under the Constitution as it has been understood and applied, at least until most recently, the State was within its powers in taking this action. …

… In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.

[51] Ruling: Cohen v. California. U.S. Supreme Court, June 7, 1971. Decided 5–4. Majority: Harlan, Douglas, Brennan, Stewart, Marshall. Minority: Blackmun, Burger, Black, White. <www.law.cornell.edu>

Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person … by … offensive conduct….”1 He was given 30 days’ imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows: …

On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words “Fuck the Draft” which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.

The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.

In affirming the conviction, the Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and that the State had proved this element because, on the facts of this case,

[i]t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket.

We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. … We now reverse.

[52] Ruling: Cohen v. California. U.S. Supreme Court, June 7, 1971. Decided 5–4. Majority: Harlan, Douglas, Brennan, Stewart, Marshall. Minority: Blackmun, Burger, Black, White. <www.law.cornell.edu>

Majority:

The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California….

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and [p25] even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? 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 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.

[53] Ruling: Cohen v. California. U.S. Supreme Court, June 7, 1971. Decided 5–4. Majority: Harlan, Douglas, Brennan, Stewart, Marshall. Minority: Blackmun, Burger, Black, White. <www.law.cornell.edu>

Dissent:

Mr. Justice Blackmun, with whom the Chief Justice and Mr. Justice Black join.

I dissent, and I do so for two reasons:

1. Cohen’s absurd and immature antic, in my view, was mainly conduct, and little speech. … As a consequence, this Court’s agonizing over First Amendment values seems misplaced and unnecessary.

2. I am not at all certain that the California Court of Appeal’s construction of § 415 is now the authoritative California construction. …

Mr. Justice White concurs in Paragraph 2 of Mr. Justice Blackmun’s dissenting opinion.

[54] Ruling: R.A.V. v. City of St. Paul. U.S. Supreme Court, June 22, 1992. Decided 9–0. Opinion: Scalia, Rehnquist, Kennedy, Souter, Thomas. Concurrence: White, Blackmun, O’Connor, Stevens (Partially). Concurrence: Stevens, White (Partially), Blackmun (Partially). Concurrence: Blackmun. <www.law.cornell.edu>

Opinion:

In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws,1 one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn.Legis.Code § 292.02 (1990), which provides:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. …

Assuming, arguendo [for the sake of argument], that all of the expression reached by the ordinance is proscribable under the “fighting words” doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. …

Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

[55] Ruling: R.A.V. v. City of St. Paul. U.S. Supreme Court, June 22, 1992. Decided 9–0. Majority: Scalia, Rehnquist, Kennedy, Souter, Thomas. Concurrence: White, Blackmun, O’Connor, Stevens (Partially). Concurrence: Stevens, White (Partially), Blackmun (Partially). Concurrence: Blackmun. <www.law.cornell.edu>

Majority:

In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. … Accordingly, we accept the Minnesota Supreme Court’s authoritative statement that the ordinance reaches only those expressions that constitute “fighting words” within the meaning of Chaplinsky. … Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as “substantially overbroad,” … We find it unnecessary to consider this issue. Assuming, arguendo [for the sake of argument], that all of the expression reached by the ordinance is proscribable under the “fighting words” doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.

The First Amendment generally prevents government from proscribing speech, see, e.g., Cantwell v. Connecticut, or even expressive conduct, see, e.g., Texas v. Johnson … because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.

[56] Ruling: R.A.V. v. City of St. Paul. U.S. Supreme Court, June 22, 1992. Decided 9–0. Majority: Scalia, Rehnquist, Kennedy, Souter, Thomas. Concurrence: White, Blackmun, O’Connor, Stevens (Partially). Concurrence: Stevens, White (Partially), Blackmun (Partially). Concurrence: Blackmun. <www.law.cornell.edu>

Concurrence:

Justice White, with whom Justice Blackmun and Justice O’Connor join, and with whom Justice Stevens joins except as to Part I(A), concurring in the judgment. …

Part II

I agree with petitioner that the ordinance is invalid on its face. Although the ordinance, as construed, reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that—however repugnant—is shielded by the First Amendment.

In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court relied upon two of the categories of speech and expressive conduct that fall outside the First Amendment’s protective sphere: words that incite “imminent lawless action,” Brandenburg v. Ohio … and “fighting” words, Chaplinsky v. New Hampshire…. The Minnesota Supreme Court erred in its application of the Chaplinsky fighting words test, and consequently interpreted the St. Paul ordinance in a fashion that rendered the ordinance facially overbroad.

In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting words that appears in Chaplinsky—words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” … However, the Minnesota court was far from clear in identifying the “injur[ies]” inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that

the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias.

In re Welfare of R.A.V. … I therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that, “by its very utterance,” causes “anger, alarm or resentment.”

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected. See United States v. EichmanTexas v. JohnsonHustler Magazine, Inc. v. FalwellFCC v. Pacifica FoundationHess v. IndianaCohen v. CaliforniaStreet v. NewTerminiello v. Chicago….

[57] Ruling: Wickersham v. City of Columbia, Missouri. U.S. District Court for the Western District of Missouri, May 18, 2005. <www.leagle.com>

“A private party has the right to prevent free speech on its property, for a good reason, a bad reason, or no reason.”

[58] Ruling: Edmonson v. Leesville Concrete Co. U.S. Supreme Court, June 3, 1991. Decided 6–3. Majority: Kennedy, White, Marshall, Blackmun, Stevens, Souter. Minority: O’Connor, Rehnquist, Scalia. <caselaw.findlaw.com>

Majority:

The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment [banning slavery], constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. … This fundamental limitation on the scope of constitutional guarantees “preserves an area of individual freedom by limiting the reach of federal law” and “avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Lugar v. Edmondson Oil Co…. One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. [500 U.S. 614, 620]

[59] Article: “Know Your Rights: Demonstrations and Protests.” American Civil Liberties Union, November 2, 2011. <www.aclu.org>

Page 1: “The general rule is that the owners of private property may set rules limiting your free speech. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).”

[60] Ruling: Wickersham v. City of Columbia, Missouri. U.S. District Court for the Western District of Missouri, May 18, 2005. <www.leagle.com>

Plaintiffs Bill Wickersham (“Wickersham”) and Maureen Doyle (“Doyle”) seek a preliminary injunction so that they can distribute leaflets and circulate petitions at a Memorial Day Air Show which is to be held at the City of Columbia’s airport. …

… The Air Show consists of an aerial display viewed by the public from a designated part of the Airport tarmac. In addition to the aerial display, various booths and stationary displays are authorized to occupy the designated tarmac. The Defendant, Memorial Day Weekend Salute to Veterans Corporation (“Corporation”), does not permit any unauthorized displays or booths, but the Air Show is open to the public because the federal government will not permit the use of its planes unless the public can attend.

Although the entire event is open to the public, including the designated tarmac where the public comes to watch the show, the Defendants claim that the Corporation has the authority to exclude anyone from the public crowd who does not meet its approval. To support this proposition, Defendants point to a contract between the City and the Corporation which gives the Corporation exclusive control over the designated tarmac, subject only to the City’s right to retake possession of the tarmac in the event of an undefined emergency. …

The problem with the Defendants’ argument is that the City is inextricably involved in the Memorial Day Air Show and, therefore, neither the Corporation nor the City has a right to control all expression at this public event. The City runs the Airport during the Air Show and provides other necessary support such as special police, fire and sanitation resources. While the Corporation plans the order of the aerial demonstrations, the plan must be approved by the City’s Airport personnel. While the Corporation contracts with the federal government and other pilots to bring their planes to the City and pays for some to come,2 it simply cannot make the planes fly without the contemporaneous operation of the Airport by City personnel. Furthermore, the federal government will not even send its planes unless the City attests that the City is making the Airport available for the Air Show and it is officially supported by local government.

This is not like turning over a city park to a private organization and letting them put on an event to honor and remember veterans, or to individuals for a family reunion, or even having an arts festival on all the city’s streets. Under those circumstances, the private group merely has the use of public property and, therefore, could exclude whoever they wanted even though the event is occurring on public land and open to the public.3 In contrast, once the city becomes a substantial, necessary and active participant in the event, it cannot rely on superficial distinctions created by contract to insulate itself from constitutional obligations. While the Corporation has 3,000 volunteers and spends about $100,000 each year for the event, it is undisputable that the Air Show could not occur without the substantial involvement of the City before, during and after the event.

Because of the symbiotic relationship between the City and the Corporation, the Constitution does not permit them to exclude all unapproved expression. On the other hand, the Constitution does permit reasonable time, place and manner restrictions. Most of the Air Show is devoted to entertainment, but there are events during that Air Show which specifically recognize the sacrifices made by the current and former men and women in the armed services. During such solemn events, the Defendants can exclude leafleting, protests, petitioning, or any other speech or activity that might distract the crowd or offend those whose loved ones are being recognized.4 But the Defendants may not simply say that the entire Air Show is to honor and remember veterans and, therefore, any message other than ones approved by the Corporation will distract, mar or offend.

[61] Ruling: Edmonson v. Leesville Concrete Co. U.S. Supreme Court, June 3, 1991. Decided 6–3. Majority: Kennedy, White, Marshall, Blackmun, Stevens, Souter. Minority: O’Connor, Rehnquist, Scalia. <caselaw.findlaw.com>

Majority:

We must decide in the case before us whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race. Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors. …

That an act violates the Constitution when committed by a government official, however, does not answer the question whether the same act offends constitutional guarantees if committed by a private litigant or his attorney. The Constitution’s protections of individual liberty and equal protection apply in general only to action by the government. … Racial discrimination, though invidious in all contexts, violates the Constitution only when it may be attributed to state action. … Thus, the legality of the exclusion at issue here turns on the extent to which a litigant in a civil case may be subject to the Constitution’s restrictions.

The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. … This fundamental limitation on the scope of constitutional guarantees “preserves an area of individual freedom by limiting the reach of federal law” and “avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” … One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. …

To implement these principles, courts must consider from time to time where the governmental sphere ends and the private sphere begins. Although the conduct of private parties lies beyond the Constitution’s scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints.

[62] Article: “SA.” Encyclopædia Britannica, July 20, 1998. Last updated 5/26/17. <www.britannica.com>

SA, abbreviation of Sturmabteilung (German: “Assault Division”), byname Storm Troopers or Brownshirts, German Sturmtruppen or Braunhemden, in the German Nazi Party, a paramilitary organization whose methods of violent intimidation played a key role in Adolf Hitler’s rise to power.

The SA was founded in Munich by Hitler in 1921 out of various roughneck elements that had attached themselves to the fledgling Nazi movement. It drew its early membership largely from the Freikorps (Free Corps), armed freebooter groups, made up largely of ex-soldiers, that battled leftists in the streets in the early days of the Weimar Republic. Outfitted in brown uniforms after the fashion of Benito Mussolini’s Fascist Blackshirts in Italy, the SA men protected party meetings, marched in Nazi rallies, and physically assaulted political opponents.

[63] Article: “Nazi Propaganda and Censorship.” U.S. Holocaust Museum Holocaust Encyclopedia. Accessed December 16, 2018 at <encyclopedia.ushmm.org>

December 5, 1930

Joseph Goebbels Disrupts Premiere of Film

In Berlin, Joseph Goebbels, one of Adolf Hitler’s top deputies, and Storm Troopers (SA) disrupt the premiere of “All Quiet on the Western Front,” a film based on the novel of the same title by Erich Maria Remarque. Nazi protestors throw smoke bombs and sneezing powder to halt the film. Members of the audience who protest the disruption are beaten. The novel had always been unpopular with the Nazis, who believed that its depiction of the cruelty and absurdity of war was “un-German.” Ultimately, the film will be banned. Remarque will emigrate to Switzerland in 1931, and the Nazis, after coming to power, will revoke his German citizenship in 1938.

[64] 14th Amendment to the U.S. Constitution. Ratified July 9, 1868. <www.justfacts.com>

Section 1. … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

[65] Textbook: Constitutional Law and the Criminal Justice System (7th edition) By J. Scott Harr and others. Cengage Learning, 2018.

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The Fourteenth Amendment prohibits the government at any level from unfairly or arbitrarily denying a citizen his or her fundamental and constitutionally protected rights to life, liberty, and property (due process of law) and requires that similarly situated people or classes of people be treated in similar ways under the law (equal protection of the law). These rights have been the basis of many modern cases in constitutional law.

[66] Book: Managing Local Government: An Essential Guide for Municipal and County Managers. By Kimberly L. Nelson and Carl W. Stenberg. CQ Press, 2017.

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In contrast to the federal system that exists between the federal government and the states, the relationship between states and the local governments is a unitary system. Instead of a system of shared authority, power is held by the star As articulated in the quote at the beginning of the chapter, local govemments derive their authority from their states. Local governments have no independent authority unless the state grants it to them.

[67] Ruling: Sellers v. Johnson. U.S. Court of Appeals for the Eighth Circuit, October 20, 1947. <law.justia.com>

Before Sanborn, Thomas, and Johnsen, Circuit Judges. …

This appeal is from a judgment dismissing the complaint in an action the purpose of which was to vindicate and establish the constitutional right of Jehovah’s witnesses to hold religious meetings and to preach their religion without molestation or interference in the public park of the Town of Lacona, Warren County, Iowa. …

On September 8, when the Jehovah’s witnesses attempted to hold their meeting in the park, they found a large number of people probably 700 or 800 in and around it. The bandstand in the park, which had been used as a speaker’s platform at the meeting of September 1, was occupied. Among those in the bandstand were Stanley and William Daugherty and Marvin Neer. Benches in the park were turned over, so that old ladies who had come to attend the lecture to be given by the Jehovah’s witnesses could not sit down. Children were encouraged to play baseball, thus to interfere with the meeting. The Jehovah’s witnesses did not attempt to use the bandstand, but endeavored to set up their sound equipment in another part of the park. The men who were in the bandstand then rushed down to the group which had the sound equipment, “cursing and yelling there would be no talk held that Sunday or any other Sunday.” The Jehovah’s witnesses formed a circle around the microphone to protect it. … They were attacked, but defended themselves and the sound equipment. There were numerous fist fights, with the usual results bloody faces, black eyes, broken glasses and teeth, and torn clothing. …

On September 14, the Mayor and Sheriff were handed a letter signed by Charles E. Sellers, complaining of the violation of the civil rights of the Jehovah’s witnesses on September 8, 1946, and of the failure of the local authorities to furnish police protection. The letter stated that the Jehovah’s witnesses would continue with their planned public meetings in Lacona.…

On Sunday, September 15, the Sheriff, with the assistance of about 100 special deputies and some State highway patrolmen, blockaded all the highways leading into the Town. Everyone approaching the Town on the highways was turned away, except a doctor and a few residents who were returning home. The Jehovah’s witnesses from Des Moines reached the blockade, and were turned back after being told by the Mayor and the Sheriff that they could not hold their scheduled meeting. …

The theory that a group of individuals may be deprived of their constitutional rights of assembly, speech and worship if they have become so unpopular with, or offensive to, the people of a community that their presence in a public park to deliver a Bible lecture is likely to result in riot and bloodshed, is interesting but somewhat difficult to accept. Under such a doctrine, unpopular political, racial, and religious groups might find themselves virtually inarticulate. Certainly the fundamental rights to assemble, to speak, and to worship cannot be abridged merely because persons threaten to stage a riot or because peace officers believe or are afraid that breaches of the peace will occur if the rights are exercised. …

The Supreme Court, in the Hague case, ruled that uncontrolled official suppression of the privilege of free speech cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. …

The only sound way to enforce the law is to arrest and prosecute those who violate the law. The Jehovah’s witnesses were at all times acting lawfully, and those who attacked them, for the purpose of preventing them from holding their religious meeting on September 8, were acting unlawfully and without any legal justification for their conduct. …

Our conclusion is that the plaintiffs are entitled to a decree declaring … (3) that the Jehovah’s witnesses are entitled to be protected in the exercise of their constitutional rights of freedom of assembly, speech and worship….

[68] Paper: “Prohibition of Lawful Assembly When Opposed By Threat of Violence.” Indiana Law Journal, Fall 1948. Pages 79–89. <www.repository.law.indiana.edu>

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Shortly after the war, a company of Jehovah’s Witnesses commenced a series of evangelistic meetings in the public park of a small Iowa town. The first meeting was heckled by a few local rowdies, but there was no violence. The second meeting was broken up by twenty or thirty of the rowdies. There was no police protection at either meeting. Jehovah’s Witnesses did not incite the attack by either word or act, but were unpopular solely because of their pacifism during the war. Town and county officials became alarmed by this disturbance and by rumors that several hundred ex-servicemen were planning to come from surrounding towns to attack the third meeting. The proposed third meeting was prevented by the sheriff, who, with the cooperation of the town officials, set up a road blockade excluding the Jehovah’s Witnesses and everyone else from the town on the day the meeting was scheduled. The evidence showed that the officials did not act from hostility toward the Witnesses, but from a bona fide desire to protect them from danger, and in the belief that a riot was inevitable unless the meeting was prevented.

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The most interesting problem posed by this case is whether otherwise lawful speech and assembly (or indeed lawful activity of any kind) may be prohibited by public officials because of danger that it may be opposed by the lawless.8

8 A separate question arising from this problem of prohibition is the problem of protection. Should it be found, as in this case, that conduct may not be prohibited, then undoubtedly officials owe the duty of protection. This duty is, of course, not an absolute one, but is judged by the standard of reasonableness under the circumstances.

[69] Paper: “Prohibition of Lawful Assembly When Opposed By Threat of Violence.” Indiana Law Journal, Fall 1948. Pages 79–89. <www.repository.law.indiana.edu>

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The right to engage in lawful conduct and to be protected therein against the lawless is the fundamental reason for the existence of organized government. The protection of the right, therefore, is equally vital to government regardless of the benefits which its exercise may or may not confer, for if the right is not protected, government has failed in its basic function. While this note concerns itself only with the specific rights covered by the First Amendment, it is earnestly felt that rights not coming within this category should be afforded no less degree of protection than those that do.

[70] Ruling: Sellers v. Johnson. U.S. Court of Appeals for the Eighth Circuit, October 20, 1947. <law.justia.com>

Before Sanborn, Thomas, and Johnsen, Circuit Judges. …

The theory that a group of individuals may be deprived of their constitutional rights of assembly, speech and worship if they have become so unpopular with, or offensive to, the people of a community that their presence in a public park to deliver a Bible lecture is likely to result in riot and bloodshed, is interesting but somewhat difficult to accept. Under such a doctrine, unpopular political, racial, and religious groups might find themselves virtually inarticulate. Certainly the fundamental rights to assemble, to speak, and to worship cannot be abridged merely because persons threaten to stage a riot or because peace officers believe or are afraid that breaches of the peace will occur if the rights are exercised.

[71] Paper: “Prohibition of Lawful Assembly When Opposed By Threat of Violence.” Indiana Law Journal, Fall 1948. Pages 79–89. <www.repository.law.indiana.edu>

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Yet public policy favors the rule that men need not give up their lawful rights simply because the lawless insist on attacking them. Traditionally, officials must enforce the law the lawful way, not the easiest way. The consequences which logically follow prohibiting freedom of rightful action or expression to A because B threatens violence are so self-evident that they need not be labored.10

10 If the reader thinks they should be labored, let him look to the following: “If a permit can constitutionally be refused on the grounds relied on by the defendants, a small number of lawless men by passing the word around that they intend to start a riot could prevent any kind of meeting, not only of radicals or Socialists or trade unionists, but also of Negroes, of Jews, of Catholics, of Protestants, of supporters of German refugees, of Republicans in a Democratic community or vice versa. Indeed, on any such theory, a gathering which expressed the sentiment of a majority of law-abiding citizens would be forbidden merely because a small gang of hoodlums threatened to break up the meeting. The only proper remedy for such a situation, small or serious, is the police protection to which citizens are entitled, whether they are singly or in groups.” Brief for the Special Committee on the Bill of Rights of the American Bar Association, as Amicus Curiae, p. 19, Hague v. C.I.O., 307 U. S. 496 (1939). Such a situation as that envisioned in this quotation is not as fantastic as it sounds, when we recall that the successful tactics of Fascists, Nazis, and Communists have included the use of organized thuggery against all who oppose them. It would be a sorry rule indeed which would commit the forces of the law to the support of such tactics.

[72] Ruling: Feiner v. New York. U.S. Supreme Court, January 15, 1951. Decided 6–3. Majority: Vinson, Reed, Jackson, Burton, Clark, Frankfurter. Minority: Black, Douglas, Minton. <www.law.cornell.edu>

Majority:

On the evening of March 8, 1949, petitioner Irving Feiner was addressing an open-air meeting at the corner of South McBride and Harrison Streets in the City of Syracuse. At approximately 6:30 p.m., the police received a telephone complaint concerning the meeting, and two officers were detailed to investigate. One of these officers went to the scene immediately, the other arriving some twelve minutes later. They found a crowd of about seventy-five or eighty people, both Negro and white, filling the sidewalk and spreading out into the street. Petitioner, standing on a large wooden box on the sidewalk, was addressing the crowd through a loud-speaker system attached to an automobile. Although the purpose of his speech was to urge his listeners to attend a meeting to be held that night in the Syracuse Hotel, in its course he was making derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials.

The police officers made no effort to interfere with petitioner’s speech, but were first concerned with the effect of the crowd on both pedestrian and vehicular traffic. They observed the situation from the opposite side of the street, noting that some pedestrians were forced to walk in the street to avoid the crowd. Since traffic was passing at the time, the officers attempted to get the people listening to petitioner back on the sidewalk. The crowd was restless and there was some pushing, shoving and milling around. One of the officers telephoned the police station from a nearby store, and then both policemen crossed the street and mingled with the crowd without any intention of arresting the speaker.

At this time, petitioner was speaking in a ‘loud, high-pitched voice.’ He gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. The statements before such a mixed audience ‘stirred up a little excitement.’ Some of the onlookers made remarks to the police about their inability to handle the crowd and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner’s arguments. Because of the feeling that existed in the crowd both for and against the speaker, the officers finally ‘stepped in to prevent it from resulting in a fight.’ One of the officers approached the petitioner, not for the purpose of arresting him, but to get him to break up the crowd. He asked petitioner to get down off the box, but the latter refused to accede to his request and continued talking. The officer waited for a minute and then demanded that he cease talking. Although the officer had thus twice requested petitioner to stop over the course of several minutes, petitioner not only ignored him but continued talking. During all this time, the crowd was pressing closer around petitioner and the officer. Finally, the officer told petitioner he was under arrest and ordered him to get down from the box, reaching up to grab him. Petitioner stepped down, announcing over the microphone that ‘the law has arrived, and I suppose they will take over now.’ In all, the officer had asked petitioner to get down off the box three times over a space of four or five minutes. Petitioner had been speaking for over a half hour. …

… 2 The courts below recognized petitioner’s right to hold a street meeting at this locality, to make use of loud-speaking equipment in giving his speech, and to make derogatory remarks concerning public officials and the American Legion. They found that the officers in making the arrest were motivated solely by a proper concern for the preservation of order and protection of the general welfare, and that there was no evidence which could lend color to a claim that the acts of the police were a cover for suppression of petitioner’s views and opinions. Petitioner was thus neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered. …

We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings. … But we are not faced here with such a situation. It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.

Dissent (Black):

Even accepting every “finding of fact” below, I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding which I view as a long step toward totalitarian authority. …

Moreover, assuming that the “facts” did indicate a critical situation, I reject the implication of the Court’s opinion that the police had no obligation to protect petitioner’s constitutional right to talk. The police of course have power to prevent breaches of the peace. But if, in the name of preserving order, they ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him.

Dissent (Douglas and Minton):

Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. When a speaker mounts a platform it is not unusual to find him resorting to exaggeration, to vilification of ideas and men, to the making of false charges. But those extravagances … do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. …

A speaker may not, of course, incite a riot any more than he may incite a breach of the peace by the use of “fighting words.” … But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedly struck down. …

… I believe the record demonstrates rather conclusively that petitioner did not use the phrase “in arms” in the manner testified to by the officers. Reliable witnesses swore that petitioner’s statement was that his listeners “could rise up and fight for their rights by going arm in arm to the Hotel Syracuse, black and white alike, to hear John Rogge.” The testimony of neither of the two officers contained the phrase “in arms” when they first testified on this subject; they added it only after counsel for the prosecution was permitted by the court, over petitioner’s objection, to propound leading and suggestive questions. In any event, the statement ascribed to petitioner by the officers seems clearly rhetorical when read in context.

[73] Ruling: Watson v. Memphis. U.S. Supreme Court, May 27, 1963. Decided 9–0. Majority: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg. <caselaw.findlaw.com>

The issue in this case, simply stated, is whether the City of Memphis may further delay in meeting fully its constitutional obligation under the Fourteenth Amendment to desegregate its public parks and other municipal recreational facilities.

The petitioners, adult Negro residents of Memphis, commenced this action against the city in May 1960 in the United States District Court for the Western District of Tennessee, seeking declaratory and injunctive relief directing immediate desegregation of municipal parks and other city owned or operated recreational facilities from which Negroes were then still excluded. The city denied neither the fact that the majority of the relevant facilities were operated on a segregated basis nor its duty under the Fourteenth Amendment to terminate its policy of conditioning use of such facilities on race. Instead, it pointed to the partial desegregation already effected and attempted to justify its further delay in conforming fully and at once to constitutional mandates by urging the need and wisdom of proceeding slowly and gradually in its desegregation efforts. …

The city asserted in the court below, and states here, that its good faith in attempting to comply with the requirements of the Constitution is not in issue, and contends that gradual desegregation on a facility-by-facility basis is necessary to prevent interracial disturbances, violence, riots, and community confusion and turmoil. The compelling answer to this contention is that constitutional rights may not be denied simply because of hostility to their assertion or exercise.

[74] Ruling: Tinker v. Des Moines Independent Community School District. U.S. Supreme Court, February 24, 1969. Decided 7–2. Majority: Fortas, Warren, Douglas, Brennan, Stewart, White, Marshall. Minority: Black, Harlan. <www.law.cornell.edu>

Majority:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. …

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.

[75] Ruling: Tinker v. Des Moines Independent Community School District. U.S. Supreme Court, February 24, 1969. Decided 7–2. Majority: Fortas, Warren, Douglas, Brennan, Stewart, White, Marshall. Minority: Black, Harlan. <www.law.cornell.edu>

Majority:

Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a 13-year-old student in junior high school.

In December, 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and, if he refused, he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted. …

… After an evidentiary hearing, the District Court dismissed the complaint. It upheld the constitutionality of the school authorities’ action on the ground that it was reasonable in order to prevent disturbance of school discipline. … The court referred to, but expressly declined to follow, the Fifth Circuit’s holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.”

… As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. …

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. …

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. …

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk … and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. …

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. …

A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech….

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle, but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

Concurrence (Stewart):

Although I agree with much of what is said in the Court’s opinion, and with its judgment in this case, I cannot share the Court’s uncritical assumption that, school discipline aside, the First Amendment rights of children are coextensive with those of adults.

Concurrence (White):

While I join the Court’s opinion, I deem it appropriate to note, first, that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest; and, second, that I do not subscribe to everything the Court of Appeals said about free speech in its opinion in Burnside v. Byars….

Dissent (Black):

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically “wrecked,” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons, and that talk, comments, etc., made John Tinker “self-conscious” in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court’s statement that the few armband students did not actually “disrupt” the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that, if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.

Dissent (Harlan):

I certainly agree that state public school authorities, in the discharge of their responsibilities, are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time, I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns—for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below.

[76] Ruling: Healy v. James. U.S. Supreme Court, June 26, 1972. Decided 9–0. <caselaw.findlaw.com>

Majority:

This case, arising out of a denial by a state college of official recognition to a group of students who desired to form a local chapter of Students for a Democratic Society (SDS), presents this Court with questions requiring the application of well-established First Amendment principles. While the factual background of this … particular case raises these constitutional issues in a manner not heretofore passed on by the Court, and only infrequently presented to lower federal courts, our decision today is governed by existing precedent. …

We mention briefly at the outset the setting in 1969–1970. A climate of unrest prevailed on many college campuses in this country. There had been widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson. Some colleges had been shut down altogether, while at others files were looted and manuscripts destroyed. SDS chapters on some of those campuses had been a catalytic force during this period.1 Although the causes of campus disruption were many and complex, one of the prime consequences of such activities was the denial of the lawful exercise of First Amendment rights to the majority of students by the few. Indeed, many of the most cherished characteristics long associated with institutions of higher learning appeared to be endangered. Fortunately, with the passage of time, a calmer atmosphere and greater maturity now pervade our campuses. Yet, it was in this climate of earlier unrest that this case arose.

Petitioners are students attending Central Connecticut State College (CCSC), a state-supported institution of higher learning. In September 1969 they undertook to organize what they then referred to as a “local chapter” of SDS. Pursuant to procedures established by the College, petitioners filed a request for official recognition as a campus organization with the Student Affairs Committee, a committee composed of four students, three faculty members, and the Dean of Student Affairs. …

In response to other questions asked by Committee members concerning SDS’ reputation for campus disruption, the applicants made the following statements … which proved significant during the later stages of these proceedings:

“Q. How would you respond to issues of violence as other S.D.S. chapters have?

“A. Our action would have to be dependent upon each issue.

“Q. Would you use any means possible?

“A. No I can’t say that; would not know until we know what the issues are. …

“Q. Could you envision the S.D.S. interrupting a class?

“A. Impossible for me to say.”

[77] Ruling: Healy v. James. U.S. Supreme Court, June 26, 1972. Decided 9–0. <caselaw.findlaw.com>

Majority:

Denial of official recognition posed serious problems for the organization’s existence and growth. Its members were deprived of the opportunity to place announcements regarding meetings, rallies, or other activities in the student newspaper; they were precluded from using various campus bulletin boards; and—most importantly—nonrecognition barred them from using campus facilities for holding meetings. …

At the outset we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). Of course, as Mr. Justice Fortas made clear in Tinker, First Amendment rights must always be applied “in light of the special characteristics of the … environment” in the particular case. Ibid. And, where state-operated educational institutions are involved, this Court has long recognized “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Id., at 507. Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960). The college classroom with its surrounding environs is peculiarly the “marketplace of ideas,” and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U.S. 234, 249 -250 (1957) (plurality opinion of Mr. Chief Justice Warren), 262 (Frankfurter, J., concurring in result).

Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. … There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. …

Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. …

… While a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a “heavy burden” rests on the college to demonstrate the appropriateness of that action. …

These same references in the record to the group’s equivocation regarding how it might respond to “issues of violence” and whether it could ever “envision … interrupting a class,” suggest a fourth possible reason why recognition might have been denied to these petitioners. These remarks might well have been read as announcing petitioners’ unwillingness to be bound by reasonable school rules governing conduct. The College’s Statement of Rights, Freedoms, and Responsibilities of Students contains, as we have seen, an explicit statement with respect to campus disruption. The regulation, carefully differentiating between advocacy and action, is a reasonable one, and petitioners have not questioned it directly.21 Yet their statements raise considerable question whether they intend to abide by the prohibitions contained therein.22

As we have already stated in Parts B and C, the critical line for First Amendment purposes must be drawn between advocacy, which is entitled to full protection, and action, which is not. Petitioners may, if they so choose, preach the propriety of amending or even doing away with any or all campus regulations. They may not, however, undertake to flout these rules.

Concurrence (Burger):

I am in agreement with what is said in the Court’s opinion and I join in it. I do so because I read the basis of the remand as recognizing that student organizations seeking the privilege of official campus recognition must be willing to abide by valid rules of the institution applicable to all such organizations. This is a reasonable condition insofar as it calls for the disavowal of resort to force, disruption, and interference with the rights of others.

Concurrence (Douglas): “While I join the opinion of the Court, I add a few words. …”

Concurrence (Rehnquist):

While I do not subscribe to some of the language in the Court’s opinion, I concur in the result that it reaches. …

Prior cases dealing with First Amendment rights are not fungible goods, and I think the doctrine of these cases suggests two important distinctions. The government as employer or school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens. And there can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other, even though the same First Amendment interest is implicated by each.

Because some of the language used by the Court tends to obscure these distinctions, which I believe to be important, I concur only in the result.

[78] Ruling: Widmar v. Vincent. U.S. Supreme Court, December 8, 1981. Decided 8–1. Majority: Powell, Burger, Brennan, Marshall, Blackmun, Rehnquist, O’Connor, Stevens. Minority: White. <www.law.cornell.edu>

Majority:

It is the stated policy of the University of Missouri at Kansas City [UMKC] to encourage the activities of student organizations. The University officially recognizes over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978–1979) to help defray the costs to the University.

From 1973 until 1977, a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities.2 In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds “for purposes of religious worship or religious teaching.”3

Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms.5 The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. …

The University’s institutional mission, which it describes as providing a “secular education” to its students … does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.

Here, UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. …

In this case, the University claims a compelling interest in maintaining strict separation of church and State. It derives this interest from the “Establishment Clauses” of both the Federal and Missouri Constitutions. …

The University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to other groups without violating the Establishment Clause of the Constitution of the United States.8 We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an “equal access” policy would be incompatible with this Court’s Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test:

First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion…; finally, the [policy] must not foster “an excessive government entanglement with religion.” …

The University’s argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. … In this context, we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion. …

Our holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations. Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” …

The basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards. …

… A university differs in significant respects from public forums such as streets or parks, or even municipal theaters. A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.

Concurrence (Stevens):

As the Court recognizes, every university must “make academic judgments as to how best to allocate scarce resources”…. The Court appears to hold, however, that those judgments must “serve a compelling state interest” whenever they are based, even in part, on the content of speech. … This conclusion apparently flows from the Court’s suggestion that a student activities program—from which the public may be excluded … must be managed as though it were a “public forum.”1 In my opinion, the use of the terms “compelling state interest” and “public forum” to analyze the question presented in this case may needlessly undermine the academic freedom of public universities. …

In this case, I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University’s fear of violating the Establishment Clause. But since the record discloses no danger that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University’s fear is groundless. …

Accordingly, although I do not endorse the Court’s reasoning, I concur in its judgment.

Dissent (White):

A large part of respondents’ argument, accepted by the court below and accepted by the majority, is founded on the proposition that, because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment.2 Not only is it protected, they argue, but religious worship qua speech is not different from any other variety of protected speech as a matter of constitutional principle. I believe that this proposition is plainly wrong. Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech. …

On these facts, therefore, I cannot find that the application of the regulation to prevent Cornerstone from holding religious worship services in University facilities violates the First and Fourteenth Amendments. I would not hold, as the majority does, that, if a university permits students and others to use its property for secular purposes, it must also furnish facilities to religious groups for the purposes of worship and the practice of their religion. Accordingly, I would reverse the judgment of the Court of Appeals.

[79] First Amendment to the Constitution of the United States. Ratified December 15, 1791. <justfacts.com>

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[80] “Memorandum on Religious Expression in Public Schools.” By President William J. Clinton, July 12, 1995. <www.govinfo.gov>

I share the concern and frustration that many Americans feel about situations where the protections accorded by the First Amendment are not recognized or understood. This problem has manifested itself in our Nation’s public schools. It appears that some school officials, teachers and parents have assumed that religious expression of any type is either inappropriate, or forbidden altogether, in public schools. As our courts have reaffirmed, however, nothing in the First Amendment converts our public schools into religion-free zones, or requires all religious expression to be left behind at the schoolhouse door. While the government may not use schools to coerce the consciences of our students, or to convey official endorsement of religion, the government’s schools also may not discriminate against private religious expression during the school day

I have been advised by the Department of Justice and the Department of Education that the First Amendment permits—and protects— a greater degree of religious expression in public schools than many Americans may now understand. The Departments of Justice and Education have advised me that, while application may depend upon specific factual contexts and will require careful consideration in particular cases, the following principles are among those that apply to religious expression in our schools: …

The Establishment Clause of the First Amendment does not prohibit purely private religious speech by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities. Local school authorities possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities, but they may not structure or administer such rules to discriminate against religious activity or speech. …

… Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature generally, but they may not single out religious literature for special regulation. …

… Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns identified by the school.

[81] Article: “The Death of College Free-Speech Zones.” By Jeremy Bauer-Wolf. Inside Higher Ed, February 2, 2018. <www.insidehighered.com>

In 2016, Kevin Shaw, a student at Los Angeles Pierce College, was stopped from passing out Spanish-language copies of the Constitution around the community college. He was told he needed to keep his activities confined to a small slice of campus—what the institution had deemed its “free-speech zone.” …

… They can be small, such as the one at Pierce College, which was a rectangle no more than three parking spots wide, a little more than 600 square feet—or limiting in other ways. At the University of South Dakota, a student needs to reserve a free-speech spot at least five days in advance. …

In the last year, state legislatures, including those in Colorado, Tennessee and Utah, have stepped in and banned free-speech areas.

Virginia, Missouri and Arizona also previously outlawed the zones. Florida’s Legislature will consider a bill this session that wouldn’t allow them. …

Free-speech zones have generally faltered under legal scrutiny, despite persisting on a number of campuses. …

For years, colleges have faced legal challenges to their free-speech zones and in many cases have done away with them. …

[82] Ruling: Engel v. Vitale. U.S. Supreme Court, June 17, 1962. Decided 8–1. Majority: Black, Clark, Warren, Douglas, Clark, Harlan, Brennan, Goldberg. Minority: Stewart. Not participating: Frankfurter, White. <www.law.cornell.edu>

Dissent (Stewart):

A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them and upon their parents, their teachers, and their country. The Court today decides that, in permitting this brief nondenominational prayer, the school board has violated the Constitution of the United States. I think this decision is wrong. …

With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an “official religion” is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.

The Court’s historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court’s task, in this as in all areas of constitutional adjudication is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation,” a phrase nowhere to be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.

At the opening of each day’s Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall, our Crier has said, “God save the United States and this Honorable Court.”1 Both the Senate and the House of Representatives open their daily Sessions with prayer.2 Each of our Presidents, from George Washington to John F. Kennedy, has, upon assuming his Office, asked the protection and help of God.3

The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion.4 One of the stanzas of “The Star-Spangled Banner “ made our National Anthem by Act of Congress in 1931,5 contains these verses:

Blest with victory and peace, may the heav’n rescued land

Praise the Pow’r that hath made and preserved us a nation,

Then conquer we must, when our cause it is just.

And this be our motto “In God is our Trust.”

In 1954, Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words “one Nation under God, indivisible, with liberty and justice for all.”6 In 1952, Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer.7 Since 1865, the words “IN GOD WE TRUST” have been impressed on our coins.8

Countless similar examples could be listed, but there is no need to belabor the obvious.9 It was all summed up by this Court just ten years ago in a single sentence: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313.

I do not believe that this Court, or the Congress, or the President has, by the actions and practices I have mentioned, established an “official religion” in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their “firm Reliance on the Protection of divine Providence” when they proclaimed the freedom and independence of this brave new world.10

[83] Ruling: Abington v. Schempp. U.S. Supreme Court, June 17, 1963. Decided 8–1. Majority: Clark, Warren, Black, Douglas, Clark, Harlan, Brennan, White, Goldberg. Minority: Stewart. <www.law.cornell.edu>

Majority:

Once again, we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit of joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment. …

… The Commonwealth of Pennsylvania, by law … requires that:

At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.

The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be, violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. …

On each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while the pupils are attending their home rooms or advisory sections, opening exercises are conducted pursuant to the statute. The exercises are broadcast into each room in the school building through an intercommunications system, and are conducted under the supervision of a teacher by students attending the school’s radio and television workshop. Selected students from this course gather each morning in the school’s workshop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building. This is followed by the recitation of the Lord’s Prayer, likewise over the intercommunications system, but also by the students in the various classrooms, who are asked to stand and join in repeating the prayer in unison. The exercises are closed with the flag salute and such pertinent announcements as are of interest to the students. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which were circulated to each teacher by the school district. During the period in which the exercises have been conducted, the King James, the Douay, and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made, and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises. …

The reading of the verses, even without comment, possesses a devotional and religious character and constitutes, in effect, a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord’s Prayer. …

In Zorach v. Clauson … we gave specific recognition to the proposition that “[w]e are a religious people whose institutions presuppose a Supreme Being.” The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, “So help me God.” Likewise, each House of the Congress provides through its Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes the grace of God. Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship. … It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are:

earnestly praying, as … in duty bound, that the Supreme Lawgiver of the Universe … guide them into every measure which may be worthy of his [blessing…].

First, this Court has decisively settled that the First Amendment’s mandate that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” has been made wholly applicable to the States by the Fourteenth Amendment. …

Second, this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another. …

There is no answer to the proposition … that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers’ expense…. This freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity. …

Applying the Establishment Clause principles to the cases at bar, we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson. The trial court in No. 142 has found that such an opening exercise is a religious ceremony, and was intended by the State to be so. We agree with the trial court’s finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause. …

The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners.9 Nor are these required exercises mitigated by the fact that individual students may absent [p225] themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. See Engel v. Vitale, supra, at 430. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.” …

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools. We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” Zorach v. Clauson, supra, at 314. We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion.

[84] Ruling: Abington v. Schempp. U.S. Supreme Court, June 17, 1963. Decided 8–1. Majority: Clark, Warren, Black, Douglas, Clark, Harlan, Brennan, White, Goldberg. Minority: Stewart. <www.law.cornell.edu>

Dissent (Stewart):

The First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” It is, I think, a fallacious oversimplification to regard these two provisions as establishing a single constitutional standard of “separation of church and state,” which can be mechanically applied in every case to delineate the required boundaries between government and religion. …

A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. And such examples could readily be multiplied. …

It has become accepted that the decision in Pierce v. Society of Sisters, 268 U.S. 510, upholding the right of parents to send their children to nonpublic schools, was ultimately based upon the recognition of the validity of the free exercise claim involved in that situation. It might be argued here that parents who wanted their children to be exposed to religious influences in school could, under Pierce, send their children to private or parochial schools. But the consideration which renders this contention too facile to be determinative has already been recognized by the Court: “Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.” Murdock v. Pennsylvania, 319 U.S. 105, 111.

It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that, if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or, at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private. …

What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government. It is conceivable that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in such a way as to meet this constitutional standard -- in such a way as completely to free from any kind of official coercion those who do not affirmatively want to participate.8 But I think we must not assume that school boards so lack the qualities of inventiveness and good will as to make impossible the achievement of that goal.

[85] Ruling: Pickering v. Board of Education. U.S. Supreme Court, June 3, 1968. Decided 8–1. Majority: Marshall, Warren, Black, Douglas, Harlan, Brennan, Stewart, Fortas. Minority: White. <www.law.cornell.edu>

Majority:

Appellant Marvin L. Pickering, a teacher … was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant’s dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and hence, under the relevant Illinois statute … that “interests of the schools require(d) (his dismissal).” …

The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue. …

To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. … At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

The Board contends that “the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.” …

… The statements [of the teacher] are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. …

We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.

However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system … cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest. …

More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. …

What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom5 or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.

The public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment—is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. …

… However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be. …

In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him,6 a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

Concurrence (Douglas, Black):

Mr. Justice Douglas, with whom Mr. Justice Black joins, concurs in the judgment of the Court for the reasons set out in his concurring opinions in Time, Inc. v. HillRosenblatt v. Baer … and Garrison v. Louisiana … and in the separate opinions of Mr. Justice Black in Curtis Publishing Co. v. Butts … and New York Times Co. v. Sullivan….

Partial Dissent and Concurrence (White):

Deliberate or reckless falsehoods serve no First Amendment ends and deserve no protection under that Amendment. … As I see it, a teacher may be fired without violation of the First Amendment for knowingly or recklessly making false statements regardless of their harmful impact on the schools. … If Pickering’s false statements were either knowingly or recklessly made, injury to the school system becomes irrelevant, and the First Amendment would not prevent his discharge. For the State to be constitutionally precluded from terminating his employment, reliance on some other constitutional provision would be required.

Nor can I join the Court in its findings with regard to whether Pickering knowingly or recklessly published false statements. Neither the State in presenting its evidence nor the state tribunals in arriving at their findings and conclusions of law addressed themselves to the elements of the new standard which the Court holds the First Amendment to require in the circumstances of this case.

[86] Ruling: Tinker v. Des Moines Independent Community School District. U.S. Supreme Court, February 24, 1969. Decided 7–2. Majority: Fortas, Warren, Douglas, Brennan, Stewart, White, Marshall. Minority: Black, Harlan. <www.law.cornell.edu>

Majority: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Concurrence (Stewart):

Although I agree with much of what is said in the Court’s opinion, and with its judgment in this case, I cannot share the Court’s uncritical assumption that, school discipline aside, the First Amendment rights of children are coextensive with those of adults.

Concurrence (White):

While I join the Court’s opinion, I deem it appropriate to note, first, that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest; and, second, that I do not subscribe to everything the Court of Appeals said about free speech in its opinion in Burnside v. Byars….

[87] Report: “Teachers’ Rights in Public Education.” Rutherford Institute, 2002. <www.rutherford.org>

Page 3 (of PDF):

The Constitution protects all persons, no matter what their calling, including public school teachers. Thus, “[a]ny inhibition of freedom of thought, and of action upon thought in the case of teachers brings the safeguards of [the First Amendment] vividly into operation.9 Nevertheless, because teachers are not only private citizens, but also agents of the state, courts have held that “the rights of teachers in public schools are not automatically coextensive with the rights of adults in other settings.”10

The following is an overview of how the courts have weighed these competing interests in determining the rights of public school teachers.

9 Shelton v. Tucker, 364 U.S. 479, 487 (1960).

10 Daugherty v. Vanguard Charter School Academy, 116 F. Supp. 2d 897, 910 (W.D. Mich., 2000).

Page 15 (of PDF):

Teachers do not unconditionally surrender their constitutional rights once they enter public education. The courts, however, have determined that there are contexts in which these rights may be subject to limitation or must defer to other interests. Although recent court decisions have helped elucidate the extent to which a teacher may assert his or her constitutional rights in light of other competing interests, many unresolved issues remain.

[88] Ruling: Mayer v. Monroe County. U.S. Court of Appeals for the Seventh Circuit, January 24, 2007. <caselaw.findlaw.com>

Deborah Mayer worked for one year as a probationary elementary-school teacher in Monroe County, Indiana. When the school district did not renew her contract for a second year, Mayer filed this suit … maintaining that the school system let her go because she took a political stance during a current-events session in her class, thus violating the first amendment. The district court granted summary judgment to the defendants, so we must accept Mayer’s version of events—which is that she answered a pupil’s question about whether she participated in political demonstrations by saying that, when she passed a demonstration against this nation’s military operations in Iraq and saw a placard saying “Honk for Peace,” she honked her car’s horn to show support for the demonstrators. Some parents complained, and the school’s principal told all teachers not to take sides in any political controversy. Mayer believes that this incident led the school system to dismiss her;  we must assume that this is so.

The district court concluded that, because military intervention in Iraq is an issue of public importance, Mayer had a right to express her views on the subject, but that the right is qualified in the workplace by the requirement that expression not disrupt an employer’s business unduly. …

Whether teachers in primary and secondary schools have a constitutional right to determine what they say in class is not a novel question in this circuit. We held in Webster v. New Lenox School District No. 122 … that public-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority). Ray Webster wanted to teach his social-studies class that the world is much younger than the four-billion-year age given in the textbook the class was using;  he proposed that the pupils consider the possibility of divine creation as an alternative to the scientific understanding. We held that Webster did not have a constitutional right to introduce his own views on the subject but must stick to the prescribed curriculum—not only the prescribed subject matter, but also the prescribed perspective on that subject matter. …

This is so in part because the school system does not “regulate” teachers’ speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary. A teacher hired to lead a social studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one;  a high-school teacher hired to explicate Moby Dick in a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view;  a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.

Beyond the fact that teachers hire out their own speech and must provide the service for which employers are willing to pay … is the fact that the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives. Majority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination;  elected school boards are tempted to support majority positions about religious or patriotic subjects especially. But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers. At least the board’s views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues. That is the path Monroe County has chosen;  Mayer was told that she could teach the controversy about policy toward Iraq, drawing out arguments from all perspectives, as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials. …

… It is enough to hold that the first amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system.

[89] Ruling: Schenck v. United States. U.S. Supreme Court, March 3, 1919. Decided 9–0. Majority: Holmes, White, McKenna, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke. <www.law.cornell.edu>

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917 … by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction.

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. … 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 every case is whether the words used are used in such circumstances and are of such a nature as to create a 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. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

[90] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>

Page 1148:

In Whitney v. California,455 the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence, which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the “clear and present danger” test. “[E]ven advocacy of violation [of the law] … is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on…. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”456

[91] Ruling: Whitney v. California. U.S. Supreme Court, May 16, 1927. Decided 9–0. Majority: Sanford, Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone. Concurring: Brandeis, Holmes. <www.law.cornell.edu>

Majority:

By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. … She was tried, convicted on the first count, and sentenced to imprisonment. …

The pertinent provisions of the Criminal Syndicalism Act are:

Section 1. The term “criminal syndicalism” as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission f crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.

Sec. 2. Any person who: … 4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism

Is guilty of a felony and punishable by imprisonment.

The question whether the California Criminal Syndicalism Act … and its application in this case are repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States providing that no state shall deprive any person of life, liberty, or property without due process of law, and that all persons shall be accorded the equal protection of the laws, was considered and passed upon by this Court. …

Nor is the Syndicalism Act, as applied in this case, repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association.

That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom, and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question. Gitlow v. New York, 268 U.S. 652, 666–668, and cases cited.

By enacting the provisions of the Syndicalism Act, the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power.

Concurrence (Brandeis, Holmes):

But, although the rights of free speech and assembly are fundamental, they are not, in their nature, absolute. Their exercise is subject to restriction if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic, or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. …

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it.3 Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

… To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.4 Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. … But it is hardly conceivable that this Court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed, unposted, wastelands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.

[92] Ruling: Brandenburg v. Ohio. U.S. Supreme Court, June 9, 1969. Decided 9–0. Majority: Warren, White, Black, Harlan, Stewart, Marshall, Brennan, Douglas. Concurring: Douglas, Black. <www.law.cornell.edu>

Majority:

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for:

voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.

… He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. …

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. … In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act … the text of which is quite similar to that of the laws of Ohio. Whitney v. California…. The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. … But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States…. These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.2 As we said in Noto v. United States … (1961):

the mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

See also Herndon v. Lowry … (1937); Bond v. Floyd … (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. …

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.3

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.4 Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

Concurrence (Douglas):

Those, then, were the World War I cases that put the gloss of “clear and present danger” on the First Amendment. Whether the war power—the greatest leveler of them all—is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, and Pierce show how easily “clear and present danger” is manipulated to crush what Brandeis called “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and discourse (Pierce v. United States …) even in time of war. Though I doubt if the “clear and present danger” test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

The Court quite properly overrules Whitney v. California … which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous.

Mr. Justice Holmes, though never formally abandoning the “clear and present danger” test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York … :

Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

We have never been faithful to the philosophy of that dissent. …

When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.

Concurrence (Black):

I agree with the views expressed by Mr. Justice Douglas in his concurring opinion in this case that the “clear and present danger” doctrine should have no place in the interpretation of the First Amendment. I join the Court’s opinion, which, as I understand it, simply cites Dennis v. United States … but does not indicate any agreement on the Court’s part with the “clear and present danger” doctrine on which Dennis purported to rely.

[93] Ruling: R.A.V. v. City of St. Paul. U.S. Supreme Court, June 22, 1992. Decided 9–0. Majority: Scalia, Rehnquist, Kennedy, Souter, Thomas. Concurrence: White, Blackmun, O’Connor, Stevens. Concurrence: Blackmun. Concurrence: Stevens, White, Blackmun. <www.law.cornell.edu>

Majority:

From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which 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. …

We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations. …

And the Federal Government can criminalize only those threats of violence that are directed against the President … since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.

[94] Ruling: Virginia v. Black. U.S. Supreme Court, April 7, 2003. Plurality: O’Connor, Rehnquist, Breyer. Concurring: Stevens, Scalia, Thomas, Souter, Kennedy Ginsburg. Dissenting: Stevens, Scalia, Thomas, Souter, Kennedy Ginsburg. <caselaw.findlaw.com>

Syllabus:

O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which Rehnquist, C. J., and Stevens, Scalia, and Breyer, JJ., joined, and an opinion with respect to Parts IV and V, in which Rehnquist, C. J, and Stevens and Breyer, JJ., joined. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Thomas, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Kennedy and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion.

Plurality:

Justice O’Connor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which The Chief Justice [Rehnquist], Justice Stevens, and Justice Breyer join. …

In this case we consider whether the Commonwealth of Virginia’s statute banning cross burning with “an intent to intimidate a person or group of persons” violates the First Amendment. … We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.

[Part] I

When the sheriff observed the cross burning, he informed his deputy that they needed to “find out who’s responsible and explain to them that they cannot do this in the State of Virginia.” … The sheriff then went down the driveway, entered the rally, and asked “who was responsible for burning the cross.” … Black responded, “I guess I am because I’m the head of the rally.” … The sheriff then told Black, “[T]here’s a law in the State of Virginia that you cannot burn a cross and I’ll have to place you under arrest for this.” …

[Part] II

From the inception of the second Klan, cross burnings have been used to communicate both threats of violence and messages of shared ideology.

… And while cross burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. For example, when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical. The person who burns a cross directed at a particular person often is making a serious threat, meant to coerce the victim to comply with the Klan’s wishes unless the victim is willing to risk the wrath of the Klan. …

In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. …

[Part] III

The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. …

… And the First Amendment also permits a State to ban a “true threat.” Watts v. United States….

”True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States … (“political hyperbole” is not a true threat); R. A. V. v. City of St. Paul…. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As noted in Part II, supra, the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. …

The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.

Concurrence (Stevens):

Cross burning with “an intent to intimidate” … unquestionably qualifies as the kind of threat that is unprotected by the First Amendment. For the reasons stated in the separate opinions that Justice White and I wrote in R.A.V. v. St. Paul … that simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct. With this observation, I join Justice O’Connor’s opinion.

Dissent (Thomas):

In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred … and the profane. I believe that cross burning is the paradigmatic example of the latter. …

Although I agree with the majority’s conclusion that it is constitutionally permissible to “ban … cross burning carried out with intent to intimidate” … I believe that the majority errs in imputing an expressive component to the activity in question…. In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means. …

… It is simply beyond belief that, in passing the statute now under review, the Virginia legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious.

Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests. …

Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems. Therein lies my primary disagreement with the plurality. …

Because I would uphold the validity of this statute, I respectfully dissent.

Dissent (Scalia, Thomas):

Justice Scalia, with whom Justice Thomas joins as to Parts I and II, concurring in part, concurring in the judgment in part, and dissenting in part. …

I agree with the Court that, under our decision in R.A.V. v. St. Paul a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. Accordingly, I join Parts I–III of the Court’s opinion. I also agree that we should vacate and remand the judgment of the Virginia Supreme Court so that that Court can have an opportunity authoritatively to construe the prima-facie-evidence provision of Va. Code Ann. §18.2-423 (1996). I write separately, however, to describe what I believe to be the correct interpretation of §18.2-423, and to explain why I believe there is no justification for the plurality’s apparent decision to invalidate that provision on its face.

Dissent (Souter, Kennedy, Ginsburg):

I agree with the majority that the Virginia statute makes a content-based distinction within the category of punishable intimidating or threatening expression, the very type of distinction we considered in R.A.V. v. St. Paul…. I disagree that any exception should save Virginia’s law from unconstitutionality under the holding in R.A.V. or any acceptable variation of it. …

I conclude that the statute under which all three of the respondents were prosecuted violates the First Amendment, since the statute’s content-based distinction was invalid at the time of the charged activities, regardless of whether the prima facie evidence provision was given any effect in any respondent’s individual case. In my view, severance of the prima facie evidence provision now could not eliminate the unconstitutionality of the whole statute at the time of the respondents’ conduct. I would therefore affirm the judgment of the Supreme Court of Virginia vacating the respondents’ convictions and dismissing the indictments. Accordingly, I concur in the Court’s judgment as to respondent Black and dissent as to respondents Elliott and O’Mara.

[95] Ruling: New York Times v. Sullivan. U.S. Supreme Court, March 9, 1964. Decided 9–0. Majority: Brennan, Harlan, Clark, Stewart, White, Warren. Concurring: Black, Goldberg, Douglas. <www.law.cornell.edu>

Majority:

We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct. …

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. …

He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. …

Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960.1 Entitled “Heed Their Rising Voices,” the advertisement began by stating that:

As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights. …

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent’s claim of libel. They read as follows:

Third paragraph:

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed [encircled] the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission.

Sixth paragraph:

Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for “speeding,” “loitering” and similar “offenses.” And now they have charged him with “perjury”—a felony under which they could imprison him for ten years….

Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of “ringing” the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission.2 As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement “They have arrested [Dr. King] seven times” would be read as referring to him; he further contended that the “They” who did the arresting would be equated with the “They” who committed the other described acts and with the “Southern violators.” Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with “intimidation and violence,” bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. … Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time “ring” the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four, and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.

On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King’s home had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated respondent’s tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King’s four arrests took place before respondent became Commissioner. Although Dr. King had, in fact, been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment. …

Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. … Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement, and therefore had not published the statements that respondent alleged had libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that “we … are somewhat puzzled as to how you think the statements in any way reflect on you,” and “you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.” Respondent filed this suit a few days later without answering the letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama….

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments. …

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” ….

… The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker. … The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” … As Madison said, “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.” … In Cantwell v. Connecticut … the Court declared:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need … to survive” … was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson….

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. …

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. …

… A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. … Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” … The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. …

… As Madison said … “the censorial power is in the people over the Government, and not in the Government over the people.” It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves. …

We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action,23 the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive damages,24 where general damages are concerned malice is “presumed.” …

As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times’ Secretary that, apart from the padlocking allegation, he thought the advertisement was “substantially correct,” affords no constitutional warrant for the Alabama Supreme Court’s conclusion that it was a:

cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been impressed with the bad faith of the Times, and its maliciousness inferable therefrom.

The statement does not indicate malice at the time of the publication; even if the advertisement was not “substantially correct”—although respondent’s own proofs tend to show that it was—that opinion was at least a reasonable one, and there was no evidence to impeach the witness’ good faith in holding it. The Times’ failure to retract upon respondent’s demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point—a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can retroactively become such by virtue of a retraction subsequently made to another party. But, in any event, that did not happen here, since the explanation given by the Times’ Secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached.

[96] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>

Page 1283:

Defamation.—One of the most seminal shifts in constitutional jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan.1196 The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King, and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court’s judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be foreclosed by the “label” attached to something. “Like … the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.”

[97] Ruling: New York Times v. Sullivan. U.S. Supreme Court, March 9, 1964. Decided 9–0. Majority: Brennan, Harlan, Clark, Stewart, White, Warren. Concurring: Black, Goldberg, Douglas. <www.law.cornell.edu>

Majority:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Concurrence (Black):

I concur in reversing this half-million-dollar judgment against the New York Times Company and the four individual defendants. …

… I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely “delimit” a State’s power to award damages to “public officials against critics of their official conduct,” but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if “actual malice” can be proved against them. “Malice,” even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides, at best, an evanescent protection for the right critically to discuss public affairs, and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials.

Concurrence (Goldberg, Douglas):

The Court thus rules that the Constitution gives citizens and newspapers a “conditional privilege” immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer. The impressive array of history1 and precedent marshaled by the Court, however, confirms my belief that the Constitution affords greater protection than that provided by the Court’s standard to citizen and press in exercising the right of public criticism. …

In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses.

[98] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>

Pages 1286–1288:

Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.1212

For a time, the Court’s decisional process threatened to expand the Times [v. Sullivan] privilege so as to obliterate the distinction between private and public figures. First, the Court created a subcategory of “public figure,” which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Warren’s words, those persons 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.”1213 Later, the Court curtailed the definition of “public figure” by playing down the matter of public interest and emphasizing the voluntariness of the assumption of a role in public affairs that will make of one a “public figure.”1214

Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing.1215 But, in Gertz v. Robert Welch, Inc.1216 the Court set off on a new path of limiting recovery for defamation by private persons. Henceforth, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of “actual malice.”

The Court’s opinion by Justice Powell established competing constitutional considerations. On the one hand, imposition upon the press of liability for every misstatement would deter not only false speech but much truth as well; the possibility that the press might have to prove everything it prints would lead to self-censorship and the consequent deprivation of the public of access to information. On the other hand, there is a legitimate state interest in compensating individuals for the harm inflicted on them by defamatory falsehoods. An individual’s right to the protection of his own good name is, at bottom, but a reflection of our society’s concept of the worth of the individual. Therefore, an accommodation must be reached. The Times rule had been a proper accommodation when public officials or public figures were concerned, inasmuch as by their own efforts they had brought themselves into the public eye, had created a need in the public for information about them, and had at the same time attained an ability to counter defamatory falsehoods published about them. Private individuals are not in the same position and need greater protection. “We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”1217 Thus, some degree of fault must be shown.

[99] Article: “The Puzzle of the Actual Injury Requirement for Damages.” By James M. Fischer. Loyola of Los Angeles Law Review, September 1, 2008. Pages 197–235. <digitalcommons.lmu.edu><www.google.com>

Pages 198–199:

To say that the person needs to be restored or returned to the rightful position suggests a positional gap or difference between where the person presently is and where the person ought to be. Courts often capture this idea with the term “actual injury,” i.e., the difference between the two positions (“is” versus “ought to be”) represents the person’s actual injury. An award of damages equal to the injury will, thus, place the person in the equivalent position the person would have been had the wrong not occurred. With the award, the person’s position, from a “balance sheet” perspective, is the same as if the person had not been injured in the first place.

This approach suggests, however, a converse proposition that has generated significant dispute. If the person has not sustained actual injury, is the person’s present position the person’s rightful position, at least insofar as an award of damages is concerned?3 In that situation, judicial intervention is unnecessary because, absent injury, there is nothing for the law to redress. Consequently, the person cannot obtain damages. This converse proposition is usually described in American law as the “actual” injury requirement, and it has been used in a wide variety of contexts, albeit with much disagreement, to preclude or limit damages awards. In this Article, I examine a number of divergent situations when courts consider the actual injury requirement as a condition to awarding damages. The situations are diverse, and no common theme or structure appears that acts as a reconciling principle suggests that the actual injury requirement operates more as an instrumental rule that courts use to achieve results they believe are fair, just, and appropriate under the circumstances.

[100] Ruling: Gertz v. Robert Welch, Inc. U.S. Supreme Court, June 25, 1974. Decided 5–4. Majority: Powell, White, Marshall, Blackmun, Rehnquist. Concurring: Blackmun. Dissenting: Burger, Douglas, Brennan, White. <www.law.cornell.edu>

Majority:

This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen. …

The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. …

… One approach has been to extend the New York Times [v. Sullivan] test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. …

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. …

Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of “public figures.” This extension was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker…. The first case involved the Saturday Evening Post’s charge that Coach Wally Butts of the University of Georgia had conspired with Coach “Bear” Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Pres account of former Major General Edwin Waler’s participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a “public official” under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren’s conclusion that the New York Times test should apply to criticism of “public figures” as well as “public officials.”7 The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons who

are nevertheless 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.

… In his opinion for the plurality in Rosenbloom v. Metromedia, Inc. … (1971), Mr. Justice Brennan took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures, on the one hand, and private individuals, on the other. He focused instead on society’s interest in learning about certain issues:

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not “voluntarily” choose to become involved.

Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test. …

We begin with the common ground. Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.8 But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust and wide-open” debate on public issues. …

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. … And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. …

The First Amendment requires that we protect some falsehood in order to protect speech that matters. …

The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. … For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.

… The first remedy of any victim of defamation is self-help—using available opportunities to contradict the lie or correct the error, and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy…. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. …

More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties. …

Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part, those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. …

For these reasons, we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. …

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.10 This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. …

Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. … For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.

We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. …

Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy, and thereby becomes a public figure for a limited range of issues. In either case, such persons assume special prominence in the resolution of public questions. …

In this context, it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press, and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

We therefore conclude that the New York Times standard is inapplicable to this case, and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.

[101] Ruling: Gertz v. Robert Welch, Inc. U.S. Supreme Court, June 25, 1974. Decided 5–4. Majority: Powell, White, Marshall, Blackmun, Rehnquist. Concurring: Blackmun. Dissenting: Burger, Douglas, Brennan, White. <www.law.cornell.edu>

Dissent (Burger):

The doctrines of the law of defamation have had a gradual evolution primarily in the state courts. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny this Court entered this field.

Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today’s opinion, the Court abandons the traditional thread so far as the ordinary private citizen is concerned, and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what Mr. Justice White states, I do not read the Court’s new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a “negligence” doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of Mr. Justice Douglas and Mr. Justice Brennan suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens, rather than embark on a new doctrinal theory which has no jurisprudential ancestry. …

I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict.

Dissent (White):

For some 200 years—from the very founding of the Nation—the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment, because, until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964.

But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant’s culpability beyond his act of publishing defamatory material, but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will now be required.

I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. …

The impact of today’s decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon “competent” proof of actual injury to his standing in the community. … The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule, the plaintiff can lose not because the statement is true, but because it was not negligently made. …

With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common law malice, that is, “ ‘[a]ctual malice’ in the sense of ill will or fraud or reckless indifference to consequences.” In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication.

[102] Ruling: Gertz v. Robert Welch, Inc. U.S. Supreme Court, June 25, 1974. Decided 5–4. Majority: Powell, White, Marshall, Blackmun, Rehnquist. Concurring: Blackmun. Dissenting: Burger, Douglas, Brennan, White. <www.law.cornell.edu>

Dissent (Brennan):

While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not “hot” news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye … , the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media’s continuing interest in the story. Thus, the unproved, and highly improbable, generalization that an as-yet [not fully defined] class of “public figures” involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction. …

Moreover, the argument that private persons should not be required to prove New York Times “knowing or reckless falsity” because they do not assume the risk of defamation by freely entering the public arena “bears little relationship either to the values protected by the First Amendment or to the nature of our society.” …

To be sure, no one commends publications which defame the good name and reputation of any person: “In an ideal world, the responsibility of the press would match the freedom and public trust given it.” … Rather, as the Court agrees, some abuse of First Amendment freedoms is tolerated only to insure that would-be commentators on events of public or general interest are not:

deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. …

The Court’s holding and a fortiori my Brother White’s views … simply deny free expression its needed “breathing space.” Today’s decision will exacerbate the rule of self-censorship of legitimate utterance as publishers “steer far wider of the unlawful zone”….

… Moreover, the Court’s broad-ranging examples of “actual injury,” including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to “actual injury”—however much it reduces the size or frequency of recoveries—will not provide the necessary elbowroom for First Amendment expression. …

Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth … I would affirm the judgment of the Court of Appeals.

[103] Ruling: Gertz v. Robert Welch, Inc. U.S. Supreme Court, June 25, 1974. Decided 5–4. Majority: Powell, White, Marshall, Blackmun, Rehnquist. Concurring: Blackmun. Dissenting: Burger, Douglas, Brennan, White. <www.law.cornell.edu>

Dissent (Douglas):

Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose proscription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law.1 This was the view held by Thomas Jefferson,2 and it is one Congress has never challenged through enactment of a civil libel statute. …

There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. …

… The standard announced today leaves the States free to “define for themselves the appropriate standard of liability for a publisher or broadcaster” in the circumstances of this case. This, of course, leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as “a reasonable man.” With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.

Since, in my view, the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below.

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