Protection of Free Speech As Seen in the First Amendment

The First Amendment, proposed in 1789 by declared ‘Father of the Constitution’ James Madison as part of the U.S. Bill of Rights has perpetuated itself as a fundamental component in the governing and ruling of America to this day, acting as a principal reference point whenever judging a matter of personal or group expression 22. With the collective name ‘freedom of expression’, the First Amendment guarantees the freedom of speech, press, religion, assembly and petition 14. However, when defining the limits of classification in relation to whether or not something is so-called ‘protected speech’, there is a level of leniency and debate that can take place in identification. According to the ‘Judicial Learning Center’, ‘true threats and obscenity are not protected speech’, meanwhile ‘provocative or offensive political opinions’ are found to be on the other side of this boundary, however it is only through a collation of historical opinions and law cases that an educated and fair judgement on the extent to which expression should be restricted can be drawn. It is easy when considering free speech to jump to the conclusion that absolutely all speech should be protected. The phrase first coined by Elizabeth Beatrice Hall and since repeated countless times proclaims; ‘I disapprove of what you say, but I will defend to the death your right to say it’ (ref).

While this is an honourable statement in principal, the possibility to implement this in practice breaks down immediately when you consider a number of extreme ideas, for example the freedom to publish sexual material about children(ref) or uncovering and distributing state secrets that consequently leave a nation susceptible to attack. On fictionary example of such an offense was outlined by philosopher Thomas Scanlon, involving a nihilistic scientist distributing a highly potent nerve gas recipe with widely available ingredients. This is an obvious infringement of what any humane person would view as an acceptable act of speech, however a complete right to expression would leave this dangerous information readily available. Even if the scientist himself had no intent to incite violence through its publication and it was purely publicising it as a means of education, it would still be right to prevent the document form wide circulation. In this research project, I have chosen to focus the discussion and ruling of limits of expression specifically on the country of America. This is due to the ease of procuring archived cases and their multitude of speakers on the topic that can make the assortment of opinions more thorough. Furthermore the fairly liberal society means there aren’t a massive amount of conflicting cultural or religious beliefs which would further complicate the general state of affairs with their own incompatible preaching.

Historic Legal Cases

Brandenburg v. Ohio. One of the most pivotal cases in America’s history to deal with hate speech is 1969’s Brandenburg v. Ohio Supreme Court ruling in which Klu Klux Klan leader Clarence Brandenburg was convicted under Ohio’s criminal syndicalism law after a rally held in Hamilton County. He was charged for advocating violence as he called for ‘revengeance’ to ‘Jews’ and ‘Niggers’, documented by Cincinnati television crew filming the event (ref). The criminal syndicalism law made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” (9). The appeal to this verdict issued by Brandenburg brought into question whether prohibiting public speech that advocates illegal activities violated Brandenburg’s right to free speech. The distinction had to be made between inciting imminent hate crime or just pushing his political agenda with possible mentions of violence in the future. With a unanimous decision, it was judged by the Supreme Court that his conviction was unconstitutional as the KKK rally was protected by free speech. They arrived at this resolution by distinguishing between different sorts of violent speech. Because Brandenburg was not considered an imminent threat and instead was stating that “if the Government continued to support the civil right movement, the KKK might have to seek revenge in the future”, he was therefore free of any charge (10). The fact that the KKK rally was unlikely to succeed in any insurrection and was not posing a direct threat was essential in the judging, and was a precedent carried forward in many cases since. What can also be contended in Brandenburg’s case is the value of his advocacy as a form of discussion about the success or failure of the government’s response to the civil right moments. While it is expected that the Supreme Court doesn’t agree with the actual content of Brandenburg’s opinions, their acknowledgement of his rallying as an acceptable exploration of the current political model allows minority opinions the platform to express possibly more controversial views. However unlikely it may be, the opinions of minor radical groups may help improve the political landscape, and even if they don’t they should still have the outlet from which they can express themselves. This assessment on the value of minority voices and their dwindling opportunity to be heard is one held by the more modern author David. K. Shipler. In the video discussion of his book Freedom of Speech: Mightier Than The Sword, Shipler claims that ideas do not have to be censored to die, explaining that in a cultural landscape where norms are established and invisible lines are drawn any diversion from these criterion leads to social ostracism(16). This helps me in understanding the massive uprising and upheaval that take place when something however miniscule is curtailed, as each act of censorship is further erosion to the acceptable viewpoints to hold. On the other hand, it could be argued that even a minor threat to incite violence or spread hate about a certain body of people should be suppressed. Hate speech is an abusive or threatening delivery that expresses prejudice against a particular group and aims to vilify its target audience (ref). Where the complication lies in terms of its severity is the point at which it threatens an individual’s dignity or blights their daily life. Some believe this to be a suitable reason for punishment to the perpetrator as an interference with another’s life especially if they happen to be vulnerable can be detrimental to their well-being, in a similar way to an offence like assault, something universally considered a criminal action. If all acts of hate speech were held to this same standard then the outcome of Brandenburg’s case may not have been so favourable for him.

The precedent of ‘imminence’ set by Brandenburg’s case was one that overturned a long standing First Amendment holding dating back to 1919, the “clear and present danger” standard first uttered in relation to the case of Schenck v. United States. During World War I, Schenck mailed circulars to draftees. The circulars suggested that “the draft was a monstrous wrong motivated by the capitalist system”, urging enlisted soldiers to “not submit to intimidation” and advising only “peaceful action to repeal the Conscription Act” (11). Judge Oliver Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. In a summary of the Supreme Court judgement, Holmes famously commented “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing panic” (12). In other words, the most important distinction to make in a case of this sort is whether the particular circumstances mean that an action of this nature creates a “clear and present danger” that will provoke a response of the kind a Court is obliged to prevent. In the case of an exclamation of ‘fire’ in a theatre under false pretences, this has the possibility of bringing about a rush or stampede resulting in injury for theatregoers. Additionally such a shout may blunt a genuine cry of ‘fire’, further jeopardising the audience’s safety.

For Schenck, his advocacy of pacifism that would normally be tolerable during peacetime was punished during World War I, as it undermined America’s war effort, which the court evidently believed could have had repercussions in the form of less enrolments and therefore a weaker chance of being victorious in the war. It is possible to compare Schenck’s leafleting to more recent demonstrations in opposition to the Iraq War, an invasive measure justified by the Government as an appropriate response to the country’s harboring of terrorists and development of weapons of mass destruction, apparent threats to both America and the world as a whole(ref). Therefore, in similar ways actions by individuals in resistance to war efforts compromise a country’s ability to defend itself. How this parallel of the two conflicts is subverted is by the fact that no citizens weren’t penalised for their movement in the example of the Iraq War; the activity was protected by their freedom of expression. Notably, the scale was massively larger in response to the Iraq invasion possibly being a factor in the lack of condemnation by courts as the majority opinion was aligned with that of the protesters. This links back to Shipler’s view on the ostracisation of minority views, as pacifism was less widely accepted when Schenck was prosecuted. Obviously there were other factors involved in such a ruling as Schenck’s, but it is interesting to consider the majority bias against him that existed at the time as a possible explanation for the ruling.

Holmes’ analogy gave the Court a pragmatic standard to implement in future free speech challenges believing the context of any expression in part determined whether it could be censored. Holmes’ committal to defending free speech, particularly as a trade of ideas was one shared by John Stuart Mill who also considered this freedom as applicable in an appropriate scenario. Mill was a Victorian philosopher whose work On Liberty contains what is considered as the basis of the modern liberal defence of freedom of expression. Mill tells us that “any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else”, continuing that “If all mankind minus one were of an opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind”. This argues that the most complete liberty of expression is vital in order to push any discussion to the outer reaches of its logical limits, and abstaining from such a notion is “a sort of intellectual pacification” (17).Where this ties in to the conclusion of Schenck’s case is when Mill questions the purpose for which power can be “rightfully exercised”, something he believes is only in the prevention of harm to the individual or others. The example Mill puts forward involves a corn dealer, outlining that it is acceptable to suggest the corn dealer is starving poor people in a written and argumentative form of print, meanwhile it is not reasonable to do so in front of a rioting mob gathered outside the corn dealer’s house (ref). In one case it is just a viewpoint slandering the corn dealer, while the other puts the dealer’s life at risk - an aligning view with the ‘clear and present danger’ model introduced by Holmes. This is not to say Mill defends an individual against any form of harm, distinguishing between legitimate and illegitimate harm. The analogy states that the corn dealer may suffer financial hardship caused by the accusations in print, however that falls within free speech in Mill’s mind because while it causes him harm, it doesn’t violate his rights; the claim should be welcomed as a valued perspective that widens the debate surrounding the issue of whether the corn dealer is starving the poor or not.

Mill’s principle provides the basis for Holmes ruling of ‘clear and present danger’ believing Schenck to be putting the safety of American citizens at risk. Furthermore, following both men’s standards Schenck’s behaviour would be protected had there not been an imminent threat of attack. Finally, Mill’s Harm Principle expands on the defence of any doctrine with the idea that even if the prevailing is the complete truth or at least partially so, those who hold the opinion do not fully understand or feel the rational grounds of the opinion unless it is frequently challenged(18). This is to say, had Schenck’s advocacy preceded the war then according to Mill, it should have been welcomed either for its revolutionary ideas of peace rather than conflict, or just as a reinforcement of war as the correct response in these proceedings, with nobody being infallible and therefore a constant vigorous debate meaning the full terms of the doctrine on the issue can be explored.

Rice v. Paladin Enterprises

A more recent case relating to free speech was particularly notable for its ruling that Brandenburg’s requirement of ‘imminence’ need not be satisfied. On the night of March 3, 1993, Mildred Horn, her 8 year old quadriplegic son, Trevor, and his nurse, Janice Saunders, were brutally murdered by James Perry, a contract killer. Perry was hired by Mildred’s ex-husband Lawrence Horn, in order for Lawrence to inherit Trevor’s substantial trust. The free speech issue arises with the fact that Perry’s methods for planning and committing the murders followed absolutely the graphic instructions described within the Paladin Press published book Hit Man: A Technical Manual for Independent Contractors(6). The family of the victims sued the publishing company for their part in the death of their relatives, accusing them of aiding and abetting the murders by supplying Perry with a form of guidance in the crimes. The key matter of contention in the case was the specific motivations of the publisher. Paladin Enterprises claimed the book was primarily printed in order to sell as many copies as possible, arguing it was entirely benign as its aim was to cater to a mass audience. Therefore their point was that in order to increase revenues it must have been targeted for a majority audience who were not planning to kill anyone. The counter argument proposed by the plaintiffs however was that one of the publisher’s incentives must have been marketing the book for would be hitmen such as James Perry. Their stance was that if there was any feasible possibility that the book was marketed to criminals then it was no longer morally reasonable to protect the publication through any sort of First Amendment defense. The official conclusion from the court read that “every court that has addressed the issue, including this court, has held that the First Amendment does not necessarily pose a bar to liability for aiding and abetting takes the for the spoken or written word’ (8). What makes this case particularly controversial was that it didn’t follow guidelines previously set as an authority on free speech by Brandenburg’s case. As outlined earlier in my summary of the case, ‘imminence’ was regarded as a key factor however there is an obvious absence of such a thing when considering Paladin’s involvement in the murders of Horn’s family.

Consequently, the court recognised that the usual standard need not be fulfilled in these circumstances as the content of the book was made up of almost exclusively criminal instructions that if followed correctly would and evidently did lead to the harm of other individuals. In other words, this likens the publisher’s actions to a literal assisted murder, with the comprehensive detail of the book legitimately demonstrating an intent to supply information on how kill in an forceful and efficient manner.

This brings into question the possibility to censor a work of fiction on the grounds of its real world application, an alarming thought due to the broad reign of it gives the Government over ideas it can suppress. The extent to which this could reach if employed is unknown, evoking ideas of something comparable to George Orwell’s 1984-esque society where part of the slogan for the dictatorship reads ‘Ignorance Is Strength’ (ref). Alternatively, there is definitely a cause for concern in something that, as the court labels it, assists in a crime when the intent is ambiguous. In my opinion, in this situation it is important to differentiate between information that solely facilitates a form of crime, and something that does this with some discernible agenda or message, as the second of these is arguably broadening the conversation on a topic, for example the ‘Hitman’ book may allow improvements in military technique. Additionally, it could be claimed that the publisher’s actions are equivalent to those of a gunmaker in terms of arming the perpetrator with either a weapon or information and therefore as is established as the case with guns the facilitator is not penalised. Another issue surfacing from a case like Paladin’s is the increasing difficulty to govern and moderate the possibly harmful information shared in the internet era. The amount of information available online is enormous and still growing exponentially in a digital age that makes it so easy to upload files and distribute them to a seemingly limitless number of people. The lowering or entire eradication of costs for sharing ideas on the internet has allowed new communities to emerge, sharing a common view or theme (22). Therefore, it is rational to interpret from the current situation that had a case like Paladin’s occurred in the present it would have been substantially harder to police, both in terms of the further distribution of this information and additionally in any sourcing of the original perpetrator when many websites now promise anonymity and are securely encrypted.