By Mark Trainer
Freedom of speech means a lot to Americans. A study found an overwhelming majority of people in the U.S. think people should be able to speak their minds — without government interference — in public, in the press or on the internet.
These Americans believe their right to speak their minds should be defended under the First Amendment of the Constitution. But as the late Supreme Court Justice Oliver Wendell Holmes pointed out, defending free speech means defending not just “free thought for those who agree with us but freedom for the thought that we hate.”
We asked Eugene Volokh, a freedom of speech expert and professor at the University of California, Los Angeles, to chose three Supreme Court cases that show how freedom of speech is protected in the U.S., as well as what kind of speech is not protected.
Even offensive speech is protected: Brandenburg v. Ohio (1969)
In 1964, the leader of a branch of the Ku Klux Klan, a racist organization, was arrested for advocating violence in a speech he gave during a filmed rally. In his remarks he spoke of taking “revengeance” (an invented combination of “revenge” and “vengeance”) against African Americans and Jews. The Supreme Court ruled that the inflammatory speech was protected by the Constitution.
In its opinion, the Court drew the distinction between speech that advocates for criminal action in a general way and speech that incites an immediate crime. “So if somebody is giving a speech to a crowd outside a building and saying ‘let’s go and burn this building down,’” explains Volokh, “that might be punishable.”
“A great deal of criticism of existing rules, existing laws and existing social institutions involves speech that might be seen as encouraging illegal conduct,” says Volokh. “People need to be free to express those views.”
The importance of a fearless press: New York Times Co. v. Sullivan (1964)
In 1960, The New York Times published an advertisement in support of the Civil Rights movement that decried actions of the police in Montgomery, Alabama. The public safety commissioner in Montgomery sued the newspaper for libel (publishing false statements) because some of the allegations in the ad were demonstrably false.
The Supreme Court ruled that the newspaper was constitutionally protected in this instance, despite the false allegations, since the newspaper did not knowingly and recklessly publish the inaccuracies.
The important precedent of the case, says Volokh, is that “honest mistakes about government officials have to be constitutionally protected even if they are false and damaging to the official because otherwise people will be discouraged from criticizing government officials.”
The freedom to choose your words: Cohen v. California (1971)
Nineteen-year-old Paul Cohen was arrested for wearing a jacket in a California courthouse that protested the draft with an obscenity. A lower court said that Cohen had the right to speak out against the draft, but not the right to do it with obscene language in a public place.
When the case was appealed to the Supreme Court, the Court disagreed. “The Court said that it’s important that people be free to choose their words,” says Volokh. “Even if those words are angry words, even words that are seen as offensive words. That itself can be an important part of the message.”
Does that mean you can say anything all the time?
Volokh points out that each of these cases also shows specific and very narrow limits to free speech.
In the case of the Ku Klux Klan leader advocating acts that would be crimes if they were carried out, the Supreme Court decision made clear that if his speech were encouraging an audience to immediately commit a crime — to immediately loot, riot or burn down buildings, for instance — that speech would not be protected by the First Amendment.
In the case of the newspaper that published the inaccurate information, that form of speech would not be protected by the First Amendment if the newspaper published falsehoods knowingly and purposefully.
And using obscenity in a public place would not necessarily be protected, says Volokh, if it were directed at a specific person and intended as “fighting words.”