NEUTRALITY AND SPEECH

A recurring theme of this blog has been the history of American political thought and how it has shifted from one prominent view to another – from what I have called the traditional federalist perspective to the natural rights construct. Nothing illustrates this more than the shifts in thinking by our jurists as expressed through their court decisions. Of course, leading this change are the constitutional decisions the US Supreme Court has rendered concerning our basic rights. A number of postings ago, I reported on how court decisions concerning religious freedom reflected this shift. This posting will look at the jurisprudence concerning speech.

Michael J. Sandel¹ provides us with a short account of that history. He points out that, just as with religion, the overall view of the courts has been toward prohibiting the government from restricting speech and inhibiting government's ability to promote its version of the good. Government might find constitutional reasons to regulate the expression of speech – in regard to time, place, and/or manner – but such regulation, generally, must not be based on the content; that is, the state is to be neutral in any obstacles that it might inflict upon the exercise of speech.

As with all of the rights contained in the Bill of Rights, before the ratification of the Fourteenth Amendment, the federal government did not have any authority to protect citizens from any affronts to those rights by the state governments. As far as federal courts were concerned, states, such as New York or South Carolina, could restrict speech, for example, as much as they wanted. The US constitutional guarantee in the First Amendment was to protect citizens against efforts by the central government. And even with the one prominent situation in which the central government tried to control speech – the enactment of the Sedition Act of 1798² – the law was never challenged before the Supreme Court. The main challenge to that law came from two state sponsored resolutions – the Virginia and Kentucky Resolutions – authored by James Madison and Thomas Jefferson. These founding fathers' main complaint was not that the law offended the individual rights of free speech or freedom of the press, but that the law interfered with the states' right to restrict speech and the press in the ways the law provided. So much for any concern for individual rights among these founders. I will add that the courts' concern for these rights didn't even cause a ripple in the nation's federal jurisprudence until after World War I.

The first serious judicial concern over legislative efforts to check free speech came about as a result of the World War I laws, the Espionage and Sedition Acts of 1917. An initial standard the court formulated in the cases that emanated from the adjudication of individuals who were found guilty of breaking these laws was the “clear and present danger” standard. That is, a person's right to free expression could only be held unlawful if the speech presented a situation in which the speech would incite people to engage in disruptive and dangerous activities in an immediate time frame. The speech, in addition, had to have subversive content. And to demonstrate the lack of judicial concern for these rights, it took until the late 1920s before the court overturned any of the convictions in these “subversive” cases.

The reluctance of the courts during the era of traditional federalist thought to find favor with those who argued for free speech can be demonstrated with a later developed standard: the “two-level theory of free speech” standard. In a unanimous decision in the Chaplinsky v. New Hampshire case, the court identified a level of speech that did not have the protection of the First Amendment. The Supreme Court decided in 1942 that speech found to be lewd and obscene, profane, libelous, and/or insulting (“fighting” words) – that is, speech that was in and of itself injurious or incited immediate disruption – could be constitutionally restrained by law. What seemed to be valued over individual freedom in this decision was order and morality, not the principle of free speech. The courts continued in this direction of limiting constitutionally protected speech through the 1950s by adding commercial speech, racial defamation speech, and obscenity as not being constitutionally protected.

One of the main criticisms of such rulings was that this two-level approach placed the courts in a position to make very subjective decisions. Trying to determine what speech was profane, for example, called on judges to apply their personal sensitivities. These criticisms increased in number and stridency until the court abandoned the two-level approach in New York Times Co. v. Sullivan. In this case, the court held against a libel decision by ruling that any misrepresentation of the facts that was defamatory had to be shown to be motivated by malice in order to be judged libelous and not constitutionally protected. On another front concerning free speech, Stanley v. Georgia held in 1969 that an individual had the right to receive obscene materials. This general trend in which the courts extended protections for speech – in printed or verbal forms – continued through the 1980s. The court established, with each decision, the principle that government needed to be neutral in its perspective of what the good is in determining what speech was acceptable or not.

Sandel goes on to describe how the court has striven to establish ever more neutrality standards by which to judge the constitutionality of federal and local laws. No area probably has been given more interest than political expression such as the burning of the American flag as a form political protest, or what is considered “hate speech.” But as we keep the overall trend in mind, what I am emphasizing in this posting is that the trend has promoted a view of governance which is neutral and, in turn, enables, if not encourages, the individual to determine what values he or she will strive to adopt – the essential position of the natural rights construct.

With the adoption of neutrality standards, the natural rights perspective has been given a strong legal foundation. We are left free from any collective sense of what the good should be. To what extent? The courts have ruled against laws that prohibit the exhibition of obscene movies at drive-in theaters where the images were visible from nearby public streets. Maybe I am expressing old-fashioned sensitivities, but to say such images do not express our cultural sense of what is immoral, I believe, is a definite change in our collective sense of what government should be allowed to control. In a future posting, I will revisit this topic; the courts have wavered some on this level of neutrality principle. But overall, I will claim that the natural rights construct is well established by and within our jurisprudence.

1Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.

2A law that made libelous speech against the federal government illegal.