at the National Endowment for the Arts

An interdisciplinary education project partially funded by the American Bar Association, Commission on College and University Legal Studies through the ABA Fund for Justice and Education
 

This section addresses four sets of issues concerning free speech under the first amendment:

A. Our freedom of speech, protected by the First Amendment in the Bill of Rights, is one of our most basic constitutional rights. Yet the precise nature of what is protected by the First Amendment is often misunderstood.

B. The word speech in the First Amendment has been extended to a generous sense of "expression" -- verbal, non-verbal, visual, symbolic. The artistic work supported by the NEA includes a variety of types of expression enjoying this broad protection.

C. Various exceptions to free speech have been recognized in American law, including obscenity, defamation, breach of the peace, incitement to crime, "fighting words," and sedition.

D. The work of major philosophers who have considered freedom of expression (e.g., J.S. Mill and Joel Feinberg) is helpful in explaining the rationale for these exceptions.

For suggested issues for further discussion, look for this symbol in the text:

This image is the joint resolution of Congress in 1789 proposing amendments to the Constitution, now known as the Bill of Rights. It is on permanent display in the Rotunda of the National Archives. You can display a high-resolution image of the Bill of Rights (87 K JPEG).

The First Amendment to the United States Constitution says that Congress shall make no law . . . abridging the freedom of "speech." Close attention to these few important words reveals several issues demanding interpretation and clarification.

Note that the document uses the word "speech," although a long succession of court decisions has expanded this concept far beyond ordinary verbal communication. Protected expression now includes such non-verbal expression as wearing a symbol on one's clothing, dance movements, and a silent candlelight vigil.

Consider how the concept of "speech" has been broadened by the courts. What is "speech" for these constitutional purposes? Must it constitute communication? expression? expression of what? Must it use a language of some verbal or non-verbal sort to receive this protection? What do we mean by a language? Are there forms of expression which we would not want protected?

Also note that the language is a prohibition on Congressional action. The First Amendment applies only when Congress passes a law abridging speech. Suppressions of speech are not violations of the First Amendment unless the State does the suppressing. The State could be either the Federal government or (now) a State government. Many mistakenly thank that any suppression of speech, including suppression by private citizens, violates the First Amendment. Such a private action might be objectionable for ethical or social reasons, but it does not present a constitutional issue.

If a record company decides to drop a certain rap group from its roster of recording artists, has the First Amendment been violated? If a U.S. Senator makes a speech in which he says he personally wishes that Hollywood would stop making X-rated moves, has the First Amendment been violated? If the wife of a Vice-President of the United States urges that recording companies adopt a voluntary rating system to warn parents about offensive content, has the First Amendment been violated?

Why it is that one might still object to these private suppressions of speech, even when the government is not involved. Are these ethical concerns? If so, what ethical principles are at stake? Should all citizens be urged on moral grounds to allow freedom of expression by all of their fellow citizens and not attempt to suppress that speech as private citizens?

Would the First Amendment be improved if it prohibited abridgement of speech by anyone, not just Congress? Should every citizen have a right to say anything at all with no suppression by fellow citizens? Are there times when private citizens not only could but should suppress the speech of their fellow citizens?

Controversies about speech protected by the First Amendment seem to arise because the speech at issue is unpopular or controversial or highly offensive for various reasons. Yet a hallmark of the Bill of Rights is protection of minority views. If the First Amendment only protected popular speech, supported by the majority of citizens, then the constitutional protection would not be needed. Instead we could simply have a referendum with the majority deciding which speech should be allowed. In a sense, of course, Congressional representation constitutes a majority referendum. If the majority of citizens is presumed to speak through Congress, and if a majority of Congress votes to ban certain speech, then the First Amendment intervenes to prohibit that suppression by the majority.

Should we protect minority views? Are there minority views we should protect, while others should be suppressed? How should such a distinction be made? If a statement is offensive to someone, should it be suppressed? If it harms someone, should it be suppressed? what do we mean by harm?

B. What speech is protected?

Speech includes much more than verbal oration and need not include any words. The expression of artists, including the use of symbolism, is protected under the First Amendment. The wearing of armbands with a peace symbol was protected during the Vietnam War as symbolic speech protected under the First Amendment. (Tinker v. Des Moines School District, 393 U.S. 503 [1969]) Yet the burning of a draft card was not considered protected speech but an illegal behavior violating the Selective Service rules (United States v. O'Brien, 391 U.S. 367 [1968]).

A continuing issue is the precise nature of artistic and symbolic speech that is protected versus behavior that is not. Justice David Souter recently listed some of the forms of artistic expression protected under the First Amendment which have been recognized by the U.S. Supreme Court: painting, music, poetry, motion pictures, dramatic works, radio and television entertainment, drawings, and engravings. (NEA v. Finley, No. 97-371, 1998)

How should we make distinctions between artistic and symbolic speech that is protected and illegal behavior that is not? Should performance art that includes many overt, physical behaviors be protected as symbolic speech? What might we mean by a symbol in the context of the First Amendment? Is that the same sense we might use when interpreting, for example, the symbolism in a work of art?

What does Tinker v. Des Moines School District mean today, almost 30 years later? A new Web site, produced by the American Bar Association, Division of Public Education, includes discussions with the students who were the original plaintiffs in this case, along with extensive information about the case: http://www.abanet.org/publiced/lawday/tinker/home.html

C. Exceptions to Freedom of Expression

Many exceptions to the First Amendment protections have been recognized by the courts, although not without controversy. Courts sometimes justify these exceptions as speech which causes substantial harm to the public, or speech which the Founding Fathers could not have intended to protect, or traditions that have long been part of the common law tradition from England that was the basis of our American legal system.

Rather than merely reciting the list of established exceptions, it is important to understand the rationale for making exceptions to free speech protection under the Constitution. The value of free speech sometimes clashes with other important values in our culture.

How should we weigh the relative importance of these competing social values? How do we balance free speech against racism, sexism, or anti-Semitism which promotes values we despise as a country? against speech which some consider a symptom of the decay of society's traditional values? against speech which directly results in physical injury to another person?

Exceptions established by the courts to the First Amendment protections include the following:

(1) Defamation: Defamation consists of a publication of a statement of alleged fact which is false and which harms the reputation of another person.(1) Our right to freedom of expression is restricted when our expressions (whether a spoken slander or written libel) cause harm to the reputation of another person. The courts recognize that words can hurt us, for example, by harming our ability to earn a living (economic harm).

This exception to freedom of expression can be difficult to apply in practice. Defamation requires an allegation of a fact which is in fact false. In contrast, the expression of an opinion is not considered defamation.

Imagine an artistic exhibit claiming that certain named persons, ordinary citizens were child molesters or had a secret Nazi past or earned extra income as prostitutes. If these are viewed strictly as factual claims which are false, they would seem to constitute defamation. But what if the artist said she was expressing a symbolic commentary or creating a metaphor about the secret lives of ordinary people, not making an allegation of fact? How should we draw the line in an artistic work between a factual statement and a symbolic or metaphorical opinion?

Some years ago, on an eastern college campus, flyers were distributed with the names of male students randomly drawn from the student directory, with the label that they were potential rapists. Assume, for the sake of argument, that this is guerrilla theater art. Were these flyers statements? Were they false statements? Were the reputations of the male students harmed? Should these expressions be protected by the First Amendment if the expressions were made by artists? Should we allow such statements, even if they are defamatory, if they are made by artists? How then should we decide who counts as an artist for this exception to the prohibition on defamation?

In 1990, Donald E. Wildmon, Executive Director of the American Family Association, published a pamphlet which include excerpts from the work of artist David Wojnarowicz in an exhibit, "Tongues of Flame." The artist sued Wildmon and the AFA for (among other things) defamation. Although the court agreed that "By presenting what are, standing alone, essentially pornographic images as plaintiff's works of art, without noting that the images are merely details from larger composite works, the pamphlet is libelous per se." However, as Wojnarowicz was considered a "public figure," he also had to show that Wildmon acted with reckless disregard for the truth. The court held that this higher standard had not been met. (For the text of this court decision, see Wojnarowicz v. American Family Association, 745 F.Supp. 130 [S.D.N.Y. 1990]).

Do you agree with Wojnarowicz that presentation of his work out of context was defamatory? What considerations support the artist's claims? What arguments can be raised against the artist's claims?

(2) Causing panic: The classic example of speech which is not protected by the First Amendment, because it causes panic, is falsely shouting "fire" in a crowded theater. (2) This is narrowly limited to situations in which a reasonable person would know that it was very likely that his or her speech would really cause harm to others. We can imagine works of art which might cause real panic among the audience, perhaps a contemporary version of Orson Welles' War of the Worlds, which caused considerable panic when it first aired on the radio, and in turn was based on H.G. Wells The War of the Worlds.

Imagine that a guerilla theater group staged a fake emergency which a reasonable person would expect would almost certainly cause real panic among the audience. This might be a theater production during which the director plans to yell "fire" and cause a stampede by the audience to the exit doors. Should this exercise of freedom of expression by artists be protected by the First Amendment? Or could we argue that the panic resulted simply because naive audience members were unsophisticated about how to approach art and that freedom of expression should prevail? Perhaps (one might argue) they do not know how to assume an "aesthetic attitude" or appropriately "distance" themselves from a work of art.

(3) Fighting words: In the famous case of Chaplinsky v. New Hampshire, the U.S. Supreme Court held that the First Amendment does not protect "fighting words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568, 572 [1942]) This famous exception is much discussed in recent decades, but rarely the basis for a decision upholding an abridgement of free speech.

This exception warrants scrutiny. Note that the harm involved is physical harm caused by someone else who was provoked by the speaker whose speech is being suppressed. The fact that someone else flies into a rage and causes physical harm results in justifying suppression of speech by another person!

It is worth considering why this exception has declined in acceptance. Are we now more skeptical of claims that people cannot control their actions? Do we demand the exercise of more responsibility by persons regardless of what inflammatory words they might hear? Are we more suspicious of claims of causal necessity in such situations? Note the irony that we are also witnessing an increase in the so-called "abuse excuse" in which we seem more likely to excuse someone's behavior because of something someone else did to them. Is this inconsistent with the decline in the fighting words exception?

(4) Incitement to crime: It is a crime to incite someone else to commit a crime, and such speech is not protected by the First Amendment.

If a budding rap group proposes to perform a work which includes the exhortation to "kill whitie" or "kill the cops" or "rape the babe," could that be incitement to a crime? Such records have been sold by commercial organizations, of course, yet there are no reported arrests of those artists or record companies for incitement to a crime. Should such rap lyrics be considered incitement to crime or is the causal relationship to any actual murders or rapes too tenuous?

A novel criminal defense has arisen, claiming that such music somehow compelled the defendant to commit the crime. In Austin, Texas, Ronald Ray Howard, charged with the capital murder of a state trooper, claimed in his defense that ". . . he learned to hate police officers from years of listening to rap music with violent anti-police themes. . . . "(3) Is this an acceptable defense? Why or why not? (The jury convicted him, reaching a verdict in 35 minutes.)

The recent attention to violence on television is largely a debate over whether such televised violence is a cause of actual violence, such that persons who exhibit violent shows should be held responsible. If society wants to discourage violence on television, is it because such depicted violence is clearly a cause of actual violence? Are there other reasons why society might still feel justified in restricting this depiction?

It is easy to imagine highly unpalatable projects which arguably could be considered an incitement to crime. What if a fundamentalist religious extremist group publishes a guidebook in this country on how to commit terrorism in the United States, with detailed instructions on making bombs, maps showing the homes and offices of government officials, and so forth. Instructions alone would not seem to constitute incitement, so assume that the book will also include a statement from the religion's most revered leader urging that the guaranteed path to eternal bliss is following the instructions in the book. Given the presumed audience, might this be incitement to crime?

(5) Sedition: Although not without controversy, the U.S. Supreme Court has upheld statutes which prohibit the advocacy of unlawful conduct against the government or the violent overthrow of the government. As with prohibitions discussed earlier, the expressions in question are assessed according to the circumstances. Academic discussion of the theories of, say, Karl Marx presumably would not be prohibited under such a test, especially in this post-Soviet era. The theoretical consideration and even endorsement of these views could not remotely be considered to be reasonable expectations of the actual overthrow of the government. But it is possible that an artist might develop a project, perhaps guerrilla theater or an exhibit, that urged the destruction of the United States (the "Great Satan") by extremist religious groups. The likelihood of success by the latter group would seem as improbable as the likelihood of success by contemporary Marxists.

If the discussion of Marx should not be prohibited as sedition, should we be consistent and allow discussion by the religious extremist? Are there any grounds upon which we could distinguish these situations?

(6) Obscenity: In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

One controversy over this exception to free speech is whether obscenity causes real harm sufficient to justify suppression of free speech. Does viewing obscenity make it more likely that a man will later commit rape, or other acts of violence against women, obviously real harm to another person? Does reading about war make it more likely that someone will start a war? Even if there is some evidence of such causal relationships, however tenuous or strong, is it sufficient to justify this exception to free speech? Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?

Another problem area is determining what counts as "obscenity". In Miller, the court tried to fashion a standard which could be adapted to different communities, so that what counts as obscenity in rural Mississippi might not count as obscenity in Atlanta or New York City. Is this fair? Do the people in those areas themselves agree on community standards? What is the "community" for art that is displayed on-line on the Internet?

Another controversy in the Miller standard is the exception for "serious literary, artistic, political or scientific value." Who decides what counts as "serious"? If some people consider Penthouse or the National Enquirer to be serious literature, is it elitist to deny them this exception from censorship as "obscenity"? Given the controversies in contemporary art (found objects, performance art, and so forth), what counts as artistic value? Has the Court solved the problem of defining "obscenity" or only made it more complicated?

In reviewing these classic exceptions to free speech, it does seem that real harm can be caused by at least some of these instances of speech. Following J.S. Mill, we could limit our restrictions to real harm -- physical or economic harm, not psychic or hypothetical harm. If real harm is present, then we should next address the causal relationship necessary to hold someone responsible for the harm caused by the expression. This is not easy, of course, but we do have models for determining when a causal relationship is sufficiently close ("proximate") to hold someone responsible. We also have experience in determining whether to hold people responsible based on whether a reasonable person knew or should have known the consequences of their actions.

In addition to these established exceptions to freedom of expression, there are examples of speech which would not cause real harm, in Mill's sense, but which some believe justify suppression of speech: Offense | Establishment of Religion

(7) Offense: Although rejected by American courts, some theorists argue that speech which is merely offensive to others should be another exception to the First Amendment.(5) In a court challenge to an NEA-funded exhibit, David Wojnarowicz: Tongues of Flame, David Fordyce and Yvonne Knickerbocker claimed that the exhibit caused them to "[suffer] a spiritual injury and that the exhibition caused offense to their religious sensibilities." (Fordyce v. Frohnmayer, 763 F.Supp. 654, 656 [D.D.C. 1991]) The court rejected the claim, especially as "plaintiffs do not even allege that they have either seen the exhibition or studied the catalogue . . . [and thus] have failed to show that they have endured any special burdens that justify their standing to sue as citizens." Id. But the court left open the possibility that the plaintiffs might have a claim if "they had to confront the exhibition daily, . . . the exhibition was visible in the course of their normal routine, or . . . their usual driving or walking routes took them through or past the exhibition." Id.

The complexities of this issue are highlighted when other examples are considered. What if an exhibit celebrated the practice of some religions of female genitalia mutilation? Should such exhibits be accorded the full protection of the First Amendment despite the horror which most feel about such "religious" practices? Are there some expressions which are so extremely offensive to many in the population that they should be banned by the government, even though they cause no real harm to anyway? By what criteria should this be decided?

(8) Establishment of Religion: Some speech is restricted because it constitutes the establishment of religion, which is itself prohibited by the First Amendment to the U.S. Constitution. ("Congress shall make no law respecting an establishment of religion.") Prayer led by a principal in a public school would violate the establishment clause. Thus, a school policy prohibiting the principal from leading such prayers would not violate the right of free speech. This is controversial to some, who believe that banning prayer in the public schools limits an equally important right, freedom of religion. This tension illustrates the not-uncommon challenge of balancing competing and perhaps even irreconcilable values in the Constitution.

In challenging the Wojnarowicz exhibit, the plaintiffs (above) argued that the exhibit was critical of their Christian beliefs and thus violated the establishment clause. The plaintiffs said that they

view the public display of the exhibition as an affront to their liberty to practice religion free from governmental entanglement and politically divisive governmental intrusion into the affairs of religion. (Id. at 655)

Of interest here is the difference between spiritual injury, physical injury or harm, and economic harm. Why are the latter two sufficient to suppress speech, but not the former? What criteria seem to be involved in making such a distinction?

A future plaintiff might be able to show sufficient and direct suffering, but another consideration would rule out such challenges to NEA grants. To violate the Establishment clause, "Congress . . . [must have decided] how the . . . funds were to be spent, and the executive branch, in administering the statute, was merely carrying out Congress' scheme." (6) At NEA, in contrast, Congress does not "[participate] in the decision to grant or deny applications for federal funding, . . . . [nor does] NEA merely [administer] a congressional directive." (Id.) This means that if NEA denied a grant based on possible violation of the Establishment Clause, it might violate the free speech clause of the First Amendment.(7) Note that this reasoning seems to leave open the possibility of a grant by NEA to promote appreciation for Creationism.

D. Philosophical Consideration of Freedom of Expression

The English philosopher John Stuart Mill (1806-1873) articulated what might be called the "liberal" or (better) the "libertarian" position on freedom of expression in his 1859 book On Liberty. (8) His test for appropriate government interference with human liberties is his well-known "harm" principle, found in Chapter I:

. . . the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (9)

This basic principle provides an excellent rule-of-thumb for approaching issues of freedom of expression. Most of the classic exceptions to freedom of expression, as established by the U.S. Supreme Court, are consistent with this harm principle. The major exception is the legal prohibition on obscenity, to which Mill would object on the grounds that it does not cause real harm.

Mill appeals to several principles in defending his position on freedom of expression. First, how would we know which opinions to suppress as untrue? We are not, after all, infallible. Second, many opinions include at least some truth. Only through vigorous debate of conflicting opinions does the truth eventually come out. Third, even if the opinions selected by the government as true were indeed true, people would not necessarily believe it, but would consider it prejudice. Fourth, the government-approved opinions would not be understood and appreciated by the public, as the views would not have been developed "from reason or personal experience."(10)

Contemporary philosophers following Mill's approach have summarized the exceptions to freedom of expression established by the U.S. Supreme Court. Joel Feinberg, for example, has considered "how the liberal [i.e., Mill's] principles that support free expression of opinion generally also define the limits to what the law can permit to be said." (11) Carl Cohen has also used this approach in analyzing limits on freedom of expression.(12)

Critics of Mill's approach to freedom of expression generally accept the harm principle as a justification for suppressing speech, but claim that additional reasons are sufficient to suppress speech. Patrick Devlin and Edmund Pincoffs, for example, believe that the government should enforce morality and thus should legislate morality, suppressing speech to further that goal. (13) Others criticize Mill's assumption that a successful democracy depends upon freedom of expression for a healthy debate about the issues.(14)

Discussion questions

A popular public art project in recent years has been the placement of poetry posters on public transportation for people to read while commuting. Imagine a project to place these posters in busses and subways with the content of the Andres Serrano's "Piss Christ" that presumably would be offensive to some religious sensibilities. What arguments would support exhibition of the posters on the bus? Should a government agency provide funding for the poster? Why or why not?

If a consumer reporter said falsely that a restaurant served her food with cockroaches in it, the restaurant could maintain a lawsuit for defamation. If a food critic wrote a review that, in the opinion of the critic, the restaurant's food tasted dreadful, the restaurant could not maintain a lawsuit for defamation. Yet, if the critic is a respected food critic in the city, that opinion could cause as much (if not more) economic harm to the restaurant than the erroneous news report of the consumer reporter. Does the distinction between "falsehood" and "opinion" result in fair results for the restaurant? Is the rationale for allowing defamation lawsuits as a restriction on speech justifiable?

NOTES

1. "A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." American Law Institute Restatement of the Law of Torts, Second, Sec. 550. Return to text

2. This classic exception is credited to Justice Oliver Wendell Holmes: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." (I) Schenck v. United States, 249 U.S. 47 (1919). Return to text

3. The New York Times, June 10, 1993, p. A10. Return to text

4. Title V of the Telecommunications Act of 1996, signed into law on February 8, 1996. The Communications Decency Act (CDA) is codified at 47 U.S.C. 223(a)-(h). The act was struck down by the U.S. Supreme Court in Reno v. ACLU (June 26, 1997). Return to text

5. See, e.g., Louis B. Schwartz, "Morals Offenses and the Model Penal Code," Columbia Law Review LIII (1963), 669. Return to text

6. Id. at 657, quoting Flast v. Cohen, 392 U.S. 83, 101-06, 88 S.Ct. 1942, 1953-56, 20 L.Ed.2d 947. (1968). Return to text

7. A recent decision, Rosenberger v. University of Virginia, held that denying student fees to a student religious publication would constitute viewpoint discrimination and thus would violate the First Amendment protection of free speech. The University had argued, unsuccessfully, that providing the funds would violate the prohibition on Establishment of Religion in the First Amendment. 63 U.S.L.W. 4702 (1995). Return to text

8. J.S. Mill, On Liberty, Currin V. Shields, ed. (New York: Macmillan Publishing Company, 1956) [originally published 1859]. A public domain version is available on-line on the World Wide Web: http://wiretap.spies.com/ftp.items/Library/Classic/liberty.jsm. The latter version was originally published in 1909 by P.F. Collier, Harvard Classics, Volume 25. For edited excerpts from On Liberty, click here. Return to text

9. Ibid., p. 13. (Chapter I, Introductory) Return to text

10. Ibid., p. 64. (Chapter II, Of the Liberty of Thought and Discussion) Return to text

11. Joel Feinberg, "Limits to the Free Expression of Opinion," in Philosophy of Law (5th ed.), edited by Joel Feinberg and Hyman Gross (Belmont, California: Wadsworth Publishing Company, 1995), pp. 262-281, p. 262. (original passage italicized) Return to text

12. Carl Cohen, "Free Speech and Political Extremism: How Nasty Are We Free to Be?" Law and Philosophy VII (1989), 263-79; reprinted, Philosophical Problems in the Law, edited by David M. Adams (Belmont, California: Wadsworth Publishing, 1992), pp. 257-65. Return to text

13. Edmund Pincoffs, "The Enforcement of Morality," from Philosophy of Law: A Brief Introduction (Belmont: Wadsworth Publishing Co., 1991), pp. 131-141; Patrick Devlin, The Enforcement of Morals (Oxford University Press, 1965). Return to text

14. E.g., Wilmoore Kendall, "The Open Society and its Fallacies," American Political Science Review CIV (1960, 972-979. Return to text

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