What about the role of the President?

I've been thinking of that lately. We've certainly let that role evolve into something I'm not sure the original framers ever hoped to see.

It's very possibly the Congress' own fault by failing to do much of anything, but I'm not sure the President is supposed to be able to wield this kind of unilateral power in the absence of real necessity. (In which case Congress is probably responsible to give them said powers)

Yeah, I was thinking that a targeted dive into each of Articles I, II, and III would be appropriate at some point. You could have multiple topics within each of those articles, though.

Agreed. Definitely intend to do just that. I'm most looking forward to discussing the commerce clause. But in another attempt to garner some mainstream appeal, I'm going to throw something together right now about freedom of speech.

Topic 3: What, if any, are acceptable limits on freedom of speech?

Let's begin with the text of the First Amendment:


That's it. Within this amendment contain some of our most cherished and jealously guarded rights, but it's literally just a single sentence. In this topic, we will explore the free speech clause, bold above.

First, take note of the first five words: "Congress shall make no law." We could likely have an entire topic just on that idea and what it reveals about the framers' intentions and their understanding of the proper role of government. Notice that this means that the government (specifically Congress because they were thought to be the only branch that could even conceivably attempt to restrict speech through their law-making powers; the president and judiciary would lack any means of carrying out such a policy) is not granting rights to the people, rather the First Amendment is actually a restriction on governmental power. It is written from the belief that these freedoms are natural rights and as such the government is not the source of these rights and therefore may not restrict them. In this way the amendment is said to be written in the negative. It is not a declaration of rights that people have, but rather limits on government.

So what does it mean that "Congress shall make no law...abridging the freedom of speech"? Should we take that literally? Based on that, are there any acceptable limits on freedom of speech that Congress can place, or would any limit be automatically in violation of the First Amendment?

This topic is admittedly very broad, so ideally we could explore different types of speech (political, symbolic, hate, commercial, compelled, etc.) within this topic as the conversation hopefully progresses.

In hopes of keeping this somewhat concise, I'll try to narrow the initial discussion by mentioning two different answers to this question, according to Schenck v. U.S. (1919) and Brandenburg v. Ohio (1969).

In Schenck a man was arrested for encouraging citizens to oppose the military draft, claiming that the draft violated their 13th Amendment rights. He (among several thousand others) was arrested for violated for violating the Espionage Act, which made it a crime "to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States" among other things. The Court's ruling in this case was 9-0 upholding the constitutionality of the law and Schenck's conviction. The Court ruled that Congress and the president essentially gained some leeway in this issue during wartime. (This might be a speech-adjacent topic, but the question of whether the federal government can act contrary to the Constitution in war times is a good one.) They also ruled that Congress could restrict speech if it created a "clear and present danger", a phrase many are probably familiar with.

This is also the case that contained the famous quote from Justice Holmes, "The most stringent protection of free speech would not protect a man 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." This was interpreted to mean that speech that is both dangerous and false could be legally restricted. Speech issues were decided very differently in cases very shortly after this one and as such it is not still legally binding today. However, it provides a good starting point for a discussion on the limits of free speech.

Brandenburg provides us with an updated interpretation of the limits of free speech, and this case still provides the current interpretation. In this case the Court held that speech could only be limited if it is "directed at inciting or producing imminent lawless action" AND is "likely to incite or produce such action." This is much higher bar for a government to clear to be able to restrict speech, so this case is an expansion of speech rights from earlier more narrow interpretations, but it does still allow governments the ability to limit it under these specific circumstances.

Obviously, I believe that the Free Speech Clause should be interpreted broadly, even more so than the Court's broad interpretation in recent decades. I don't think that "Congress shall make no law" should be read literally, but it should be read very broadly and whatever limits there may be on the clause should have to pass a very high bar.

And speaking of the question of literalness, you're cutting off an important part of the Free Speech Clause within those semicolons: the "or of the press" part. This should not refer to the "press" as in the profession of journalism, but to the technology of the "press"ing ink into paper. In other words, the Free Speech Clause should not refer literally to just spoken words, but also to any medium used to further express speech. Back at the founding, that was largely limited to the printing press, but of course that's later expanded to audio, video, digital transmissions, and many other forms of expression.

I'd be more than happy to delve into the categories of speech you'd cited if you wish. To briefly address the one category you wrote considerably on, I'm comfortable with the Brandenburg test being used a limit on speech that imminently leads to violence.

I'm going to narrow down this topic to hate speech I think, at least for the time being. See if we can get any other participants. But I definitely want to consider other kinds of speech.

Can you elaborate on your free press statement? Are you arguing to include press within speech, or are you making a broader point about the correct way to interpret freedom of press? Or something else?

Edit: You linked to an article...let me read that and then maybe I'll understand what you're saying.

So the above post can serve as an intro to the broader topic of free speech, but let's narrow the focus a little bit.
Topic 3 slightly amended: Should hate speech be protected?

From above about Brandenburg v. Ohio


To add to this, the Court here distinguishes between abstract advocacy of hateful, racist, etc. ideas and such statements that are actually likely to incite violence or lawless action. Under such an interpretation, KKK rallies, Nazi marches through Jewish neighborhoods, and the Westboro Baptist Church protesting military funerals all become protected speech.

Guess what I think?

I never miss a chance to post this




FIRE FIRE FIRE

My opinion on the amended topic of hate speech can be summed up well by this excellent video that Eugene Volokh released just yesterday.

Mainly the latter. Journalists obviously engage in speech, and are a very important part of it, but the idea that they somehow enjoy added protection via the First Amendment strikes as all kinds of illogical wrong.

What about the other "exemptions" to free speech?

What about indecency laws?

What about slander/libel? Part of me thinks we shouldn't even have these, for the same reason we shouldn't bother with adultery laws. That and having no laws against it would theoretically make people more wary of what they hear or read. But that's probably too idealistic on my part.

Interesting. I haven't really thought of it like that before. I've always taught the First Amendment as a progression from the freedom to think what you want (religion) to the freedom to share what you think with others (speech) to the freedom to share what you think with a lot of other people that you don't know (press) to the freedom to join together with like minded people and demand that your speech be heard (assembly). But the article you linked to raises some interesting points regarding whether there is some extra speech protection granted to journalists as such a distinction between speech and press could imply.

I think there is a compelling interest in limiting slander/libel because so much of our lives (and ability to make a living) is tied up in our reputations. Being the victim of vicious slanderous/libelous speech can easily inflict long-lasting harm and I think it is reasonable that such a victim could seek a remedy through a civil lawsuit. Since New York Times v. Sullivan (1964) we've had such a high standard to convict of libel ("actual malice", reckless disregard for the truth) that it happens rarely compared with other western nations. So I think it's clear that the Court wants to protect speech as much as possible, but I'm okay with there being recourse for a person who has been slandered or libeled.

I actually think the way you describe it is very good, as I'll explain. But before you do, I should expound a bit further on what I've said, as I had to post that quickly before taking off for something else.

I see the "or of the press" phrase as a truism within the Free Speech Clause itself that, again, I think draws justification from what's included between those semicolons. (And spoiler alert: when we get to the Establishment Clause and so called "Free Exercise Clause", I feel the same way, which should be even more intriguing.) Freedom of speech, more accurately, freedom of expression, has very limited use if all that it grants is the ability to physically speak in public spaces. So in order for it to practically work, you also have to guarantee it via all vehicles of transmission, of which have expanded dramatically since the Founding.

The key reason why I think trying to make the "or of the press" phrase anything more than that runs into logical problems would be trying to determine who qualifies as a "journalist". I'll start with myself as a mundane example that's actually highly relevant on this day. Today is when I expect the NFL's compensatory draft picks to be released. I've devised a formula that tries to project what they are, and have written several articles on why I think this is what it's going to be. I don't consider myself a professional journalist by any means, but I have been cited by people who are. Yet I don't believe I have any less of a right under the Constitution to report on comp picks than the people who cite me.

For a more serious example, take expenditures used on campaign messaging (a controversial form of speech that I'm surprised you didn't mention in your list of types of speech you wanted to question), and more specifically the highly controversial Citizens United v. FEC case. This is the case that really opened my eyes to this. Citizens United is a nonprofit corporation whose goal is to express advocacy for their favored forms of government and society. The New York Times is a for-profit company that has an entire section devoted to expressing the same. Yet the idea that the NYT somehow has more legitimacy under the First Amendment to spend on distributing their point of their view than Citizens United makes no sense to me. (You can make the same argument about, say, the ACLU vs. the Wall Street Journal, or whatever combination you want.)

So getting back to what you teach your students, I think that teaching them that "freedom to share what you think with a lot of other people that you don't know" is a very important part of the Free Speech Clause and the First Amendment as a whole, and it should be taught. But I think that explanation helps strengthen the idea that that freedom should be granted to all, and not just those who have professional expertise in it.

Since Burt's asked about other forms of speech, and you've responded, I want to discuss the other forms that the two of you brought up:

Political: Obviously one of the most important forms of speech out there, and there should be a sky high bar to clear to suppress it. This is true even if it bleeds into other controversial parts of speech, like hate speech or campaign finance.

Symbolic: Not entirely sure what you're getting at here, and how this is different from speech in general.

Commercial: I think the first prong of Central Hudson is fine enough: governments should have the power to lightly regulate it if it's false or misleading. However, it should be held to the same strict scrutiny standards as most other forms of speech, and that's where the other prongs veer off course.

Compelled: The freedom to speak doesn't make sense if the freedom not to speak does not also exist. Compelled speech should be held to the same high standards.

Indecent/obscene: Complete and utter bullshit invented by the Supreme Court because a majority of the Justices couldn't get over puritanical and patriarchal mores that influenced them. Miller v. California is one of the worst cases ever that's still good precedent today. I'm worried that we're due for another ridiculous freakout over pornography and the like that's going to bring this back up in the wrong way.

Libel/Slander: As I said in the SCOTUS thread earlier in this week when Thomas revealed he wanted to overturn Sullivan, I really dislike holding so called "public figures" to a higher standard than others. The case Thomas cites was a good one for him to stealthily make his argument: the idea that one of Bill Cosby's victims somehow becomes a "limited purpose public figure" just for speaking out about what he did to her really demonstrates how illogical the "public figure" definition is. I'd prefer holding the actual malice standard to everyone. Thomas likely disagrees but at least he's being consistent. If you have to make a distinction, I'd go with building a test on whether the defamee holds more or less power than the defamer, not on how famous one of the sides are.

Campaign finance (which I mentioned already): I think Buckley v. Valeo back in the 1970s had it right all along: little to no protection on campaign contributions, but little to no restrictions on campaign expenditures. As such, I'm the odd cat that thinks that Citizens United was rightly decided (at least on the constitutional question), but McCutcheon was wrongly decided.

One more form of speech I'll throw out there: student speech, and the free speech rights of children and juveniles in general. They should hold the same First Amendment rights as anyone else. As a result, Tinker v. Des Moines School District is very good precedent, while two decisions that shot holes into Tinker, Bethel School District v. Fraser and Morse v. Frederick are among the worst cases that are still good precedent, because again a majority of Justices lost their shit over kids talking about sex and drugs.

Oh man, there's A LOT to unpack in those two posts. I read and enjoyed both, but a couple of quick things:
1. Happy Compensatory Pick Day.
2. I planned for free speech/Citizens United to be the next topic.
3. For symbolic speech, I mean non-verbal form of expression like posters, signs, t-shirts, etc. The black armbands in Tinker or flag burning in Texas v. Johnson are both examples. I agree with you that there really isn't a distinction, but the exam I prepare my students for does include it as its own category. So it goes. Anyway, the majority in Tinker declared that the black armband was "pure speech," supporting your position.
4. I'm by far the least knowledgeable regarding commercial speech. Beyond the fact that I think truth in advertising laws have been upheld I don't know much. And even that I'm not totally confident about.

And since you mentioned Bethel and Morse v. Fredrick...those are two of my favorite cases to have my students discuss. For people who aren't familiar, in Bethel a student was suspended for giving the following speech in the auditorium to nominate his friend for class office.


And in Morse, a student was suspended for unfurling the following banner as the olympic torch was carried past their school:


In both cases the Supreme Court upheld the suspensions and ruled against the students, limiting the Tinker ruling.

I'd love to hear what you think when you do find time to unpack all that--I realize I threw a lot out there.

And yes, I don't see symbolic speech as you've defined it as any different than typical speech.