[SuperFemme]

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.
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?

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. Yet the burning of a draft card was not considered protected speech but an illegal behavior violating the Selective Service rules

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:

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.

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?


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?

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.

Although much debated, this standard remains the law of the land, and elements of this language have been included in both the authorizing legislation for the National Endowment for the Arts and the Communications Decency Act (4) prohibiting "obscenity" and "indecency" on the Internet. The Communications Decency Act was struck down as unconstitutional by the U.S. Supreme Court in June 1997. The NEA legislation was been struck down as unconstitutional by lower courts but was upheld by the U.S. Supreme Court in 1998. 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.

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." 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."

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?