A History of the First Amendment

FREE SPEECH,
HATE SPEECH

and a history of the

FIRST AMENDMENT

Amy Renner Hendricks  Marketing & Communications

On July 3, 2019, a trending Buzzfeed post titled “The Whole World is Wondering Why Americans Say This on the Fourth of July” poked fun at the fact that most Americans refer to Independence Day as the Fourth of July, the British format for dates, day/month, instead of July Fourth, the American format, month/day. And, “Didn’t North American colonists spend seven years fighting for independence from Great Britain?” the author quipped. The majority of commenters asked, “Who really cares?” Certainly not the whole world like the clickbait title inferred, but the story was sort of funny, in an ironic way, and it made some sense. The colonists had a different speech pattern at the time, and the colonies had been tied to Great Britain for so long that it seems natural they’d adopt the British way of saying Fourth of July. 

It’s easy to see both sides when the subject is trivial, like the formatting of calendar dates, but not so easy when the subject triggers deep-seated emotion, when the subject is, say, Colin Kaepernick — the former NFL quarterback who, in 2016, opted to kneel during the pregame singing of The Star-Spangled Banner, and this year, spoke out against Nike’s Fourth of July-inspired shoes featuring a Betsy Ross-designed American flag with 13 stars for the 13 original colonies. Both times, Kaepernick said he was protesting wrongdoings against minorities. Both times, he ignited a firestorm of conversations about patriotism, which, consequently, sparked heated arguments on, among other things, freedom of speech. Both times, the comments were especially harsh online, from people on both sides of the debate — those who thought Kaepernick had the right to protest and those who didn’t. Both times, their conversations often went beyond civil discussions, crossing the line from hateful to hate speech, with offensive name-calling and vicious attacks on each other’s race, religion, national origin and even physical characteristics. 

Also, on the Fourth of July or July Fourth, whichever you prefer, news sites across the world were reporting that French lawmakers had approved a measure intended to force search engines and social networks to block hate speech online. Some questioned whether America, where freedom of speech is a revered national value and protected by the First Amendment should also try to ban hate speech. Adrienne Andrews, Weber State University’s assistant vice president for diversity, had an emphatic response to that question: “No,” she said. “Censoring hate speech does more harm than good. History shows that punishing hate speech rallies even more people to hate.”

Richard Price, assistant professor of political science at WSU, said other countries, Germany for instance, aggressively crack down on hate speech from extremist groups, but, as a result, the censorship pushes those groups underground — a dangerous place for them to be. “Those countries might have made it harder for vicious hate groups to organize, but it also made them less visible,” said Price, who teaches a class on free speech and who also is part of a group that received a National Science Foundation grant to maintain a comparative free speech database. “We can better monitor hate groups if we allow them to express themselves, as vile as their expression might be. One of my students made a great point about this in class, saying, ‘I don’t like those people, but I like the fact that I can see them publicly and decide how to respond.’”

Hate Speech Defined

Technically, hate speech doesn’t have a legal definition, but Supreme Court justices throughout the years have offered their opinions on the subject during specific cases. 

In the 2011 case, Snyder v. Phelps, for example, the U.S. Supreme Court ruled 8-1 that the First Amendment prohibited the imposition of civil liability upon Fred Phelps, leader of Westboro Baptist Church, whose members picketed the funeral of a Marine, whose father, Albert Snyder, sued Phelps for intentional infliction of emotional distress. The court reasoned that, while highly offensive, the picketers protested peacefully on a public street and that their “speech” was a matter of public concern, mostly dealing with the moral conduct of the U.S. 

In his conclusion, Justice John Roberts said the following: 

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Price explains further: “Yes, what Westboro Baptist Church did was vile, but it was political in nature. That’s key. The church’s signs were about public policy. The church complied with all of the rules — time, place and manner restrictions. They stayed peaceful. The court says you can’t punish that.” 

Price says it’s helpful to think of free speech as a marketplace of ideas. “It’s the same as a marketplace of goods. We allow goods to compete, and we hope that, through competition, the best goods win. And so it is with free speech. We have to look at the marketplace of ideas and allow ideas to compete … unless the idea presents imminent public danger.”

Imminence Explained

It’s 1919. The U.S. Supreme Court has just ruled against Charles Schenck, the general secretary of the Socialist Party of Philadelphia, in a case that would give rise to the saying, “You can’t shout fire in a crowded theater,” a paraphrase of a sentence in Justice Wendell Holmes Jr.’s opinion, in which he originally said, “falsely shouting fire in a theater and causing a panic.” 

According to a textbook titled Constitutional Law in a Changing America: Rights, Liberties, and Justice, which associate criminal justice professor Mark Denniston uses in his classes, Schenck “printed fifteen thousand pamphlets urging resistance to the draft. He mailed these leaflets, described by the government’s case as ‘frank, bitter, passionate appeal[s] for resistance to the Selective Service Law,’ to men listed in a local newspaper as having been called and accepted for military service. Federal authorities charged him with violating the Espionage Act; specifically, the United States alleged that Schenck conspired to obstruct military recruitment and illegally used the mail to do so.” 

Schenck was convicted on three counts and sentenced to 10 years in prison for each count. 

Denniston points out that you have to view Schenck from a historical perspective. When Schenck distributed his fliers in 1917, the world was at war. The U.S. had just drafted over 2 million men to the World War I effort. This infuriated people, like Schenck, who were anti-war. Ultimately, the Supreme Court decided that wartime circumstances change the rules related to free speech, and it upheld Schenck’s convictions. In upholding the convictions, the Supreme Court created the “clear and present danger” rule. For 50 years, the rule helped the courts determine whether words used in certain circumstances created a clear and present danger that would bring about “substantive evils,” as Holmes called them.

“So yes, Schenck was a landmark case because it gave us clear and present danger,” Denniston explains, “but I want to be very clear that Schenck is no longer good law. Clear and present danger is defunct. Actually, by today’s standards, Charles Schenck probably would not have been indicted.”  

Clear and present danger was replaced by imminent lawless action in Brandenburg v. Ohio in 1969. Clarence Brandenburg, a leader in the Ku Klux Klan, made a speech at a KKK rally. During the speech, he made anti-Semitic and anti-black statements and alluded to the possibility of “revengeance” (sic) in the event that the federal government and Court continued to “supress the white, Caucasian race.” He was convicted of violating Ohio’s criminal syndicalism law, which made it a crime to “advocate … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” 

Brandenburg was fined and sentenced to serve one to 10 years in prison. 

Ironically, the American Civil Liberties Union appealed Brandenburg’s case to the Ohio intermediate appeal court, which upheld his conviction without opinion. The Ohio Supreme Court declined to hear the issue. 

The U.S. Supreme Court took up the case and, ultimately, overturned Brandenburg’s conviction and issued a new test for all future restrictions on speech, the imminent lawless action test, which says the government may prohibit speech advocating the use of force or crime if the speech is directed to AND likely to incite imminent lawless action.

“What Brandenburg did was almost a threat,” Denniston explained. “It wasn’t analyzed as a true threat because he didn’t have a definitive victim, and he didn’t give a specific timeline for violence. He only advocated for violence in the abstract sense — ‘revengeance,’ whatever that meant. It wasn’t imminent. He wasn’t exhorting his followers to go burn down the courthouse at 9 p.m. that night. He wasn’t arming a revolution for tomorrow at 6 p.m. He was talking in the abstract — that there may need to be violence in the future. With the Brandenburg ruling, the threat of violence in the abstract became protected speech.”

Infuriating, Not Imminent

Could hate speech enrage people to the point they retaliate against the speaker or riot? Yes, of course. Would the speaker’s words then be considered to have produced imminent lawless action? “Generally, no,” Price explains. “There was a time at which the court could punish speakers for essentially getting people riled up. The criticism of that is it encourages a mob to silence others, which had very negative consequences.”

Price brings up an incident of campus violence at the University of California Berkeley two years ago. “The university had a controversial speaker presenting on campus. They took every measure to protect him, but a riot broke out. People were throwing bottles, Molotov cocktails even. At that point, the university had to choose between actual violence or allowing the speaker to continue. The university decided that, since it could no longer protect the speaker, to move the speaker off campus. Whether or not that’s constitutional is a difficult question. I think it was fair, but the point is, you can’t arrest the speaker for the violence. He wasn’t encouraging anyone to break the law.

“You also have to realize there are loopholes in all of this. It all still comes down to this very powerful idea of a marketplace of ideas. The marketplace is how we take information in, how we come to get ideas, and it makes politics better.”

Combating Hate Speech

Andrews agrees, but adds that we need to communicate better with each other about those ideas. “So often, we don’t have healthy debates,” she said. “During the Richard Nixon-John F. Kennedy presidential debates, the candidates agreed that, although they saw the world very differently, they had the same goal. I’m sad we’ve moved away from that, that we can’t talk about big, important ideas as engaged communicators who are able to disagree and still maintain a relationship. Now, if we don’t exactly agree, either I’m the devil or you are. That is not a civil society. That is not who we are as a nation.”

Andrews relayed a story about a community vigil after the 2019 attack on a Muslim mosque in New Zealand. “Members of the Ogden community held a vigil with Muslim members of the community to show support and to share in the grief of losing people, people we will never have the pleasure of knowing because they were murdered because of their faith. In the midst of having that vigil, individuals in vehicles with very loud mufflers drove up and down the street in front of city hall and shouted at the people. There has to be a more continuous showing that we are inclusive. We need to believe we can have different traditions and different cultures and still have the same value as part of a common humanity.”

Andrews encourages everyone to counter hate speech with positive speech: 

“Hate has the capacity to invade and infect any segment of society. That’s why I love Dr. Martin Luther King Jr. so much. He said, ‘Hate is too big a burden to bear.’ He chose love. I aspire toward love, because as a human being, there is nothing in me that makes me better than what is in you. 

“If we allow it to, hate will take over our lives. Hate closes doors. Hate shuts windows. Hate closes the flue on every fireplace, stifling us. 

“Love, on the other hand, love opens conversations. Love demonstrates willingness. Love opens every door, every window, every fireplace flue.

“Like Dr. King said, ‘Hate is too big a burden to carry.’”

Selected Sources:

• American Library Association
• FindLaw
• The First Amendment Encyclopedia
• National Constitution Center
• Oyez
• United States Courts