Ask the authors: “Plain words, easily understood”
The following is a series of questions prompted by the publication of Lee C. Bollinger and Geoffrey R. Stone’s “The Free Speech Century” (Oxford University Press, 2019). As Justice Oliver Wendell Holmes famously suggested in 1919 in Schenck v. United States, the Supreme Court’s first attempt to interpret the First Amendment’s free speech clause, the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But what does free speech protect? And what constitutes a free press? In this volume, Bollinger and Stone bring together 16 First Amendment experts to address these questions, looking back at history and ahead into the future.
Bollinger is the president of Columbia University. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago.
Welcome, Lee and Geoffrey, and thank you for participating in this question-and-answer exchange.
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Congress shall make no law … abridging the freedom of speech, or of the press.
— First Amendment to the Constitution
“The phrase ‘Congress shall make no law’ is composed of plain words, easily understood.”
— Justice Hugo Black, “The Bill of Rights,” N.Y.U. Law Review (1960)
QUESTION: This year marks the 100th anniversary of the first Supreme Court decisions interpreting the freedoms of speech and the press. From the perspective of 2019, it is hard to understand how the entire 19th century passed without any free speech cases at the court. How is it that these clauses from the First Amendment went unaddressed for so long? And what changed in 1919 to bring them to the court?
BOLLINGER & STONE: As originally enacted, the First Amendment, like the other guarantees of the Bill of Rights, applied only to the federal government. Unlike the state and local governments, the federal government has limited authority to regulate speech and press.
The two situations in which disputes over federal restrictions on these rights might most likely have reached the Supreme Court before 1919 involved the Sedition Act of 1798 and some of the actions of the Lincoln administration during the Civil War. In neither instance, though, did those cases make it to the Supreme Court. In part, this was no doubt due to the recognition that the makeup of the court at those times was such that the justices would almost surely have ruled in favor of the government.
What changed later was the federal government’s enactment of the Espionage Act of 1917 and the Sedition Act of 1918 during World War I. Some 2,000 individuals were prosecuted under these laws, so it was no surprise that the Supreme Court wound up deciding several cases dealing with the First Amendment at this time.
In 1925, in its decision in Gitlow v. New York, the court for the first time suggested that the First Amendment applied to the states through the due process clause of the 14th Amendment. That opened the door for a much greater range of First Amendment issues to reach the court involving laws enacted by state and local governments.
QUESTION: Justice Oliver Wendell Holmes suggested that we approach free speech as an “experiment.” What does this mean for doctrine? Does the court treat other parts of the Constitution as experiments?
BOLLINGER & STONE: In his dissenting opinion in Abrams v. United States, which was decided in 1919, Holmes wrote as follows:
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
This was one of the most powerful statements ever written by a justice of the Supreme Court about the meaning of the First Amendment. When Holmes said that this was an “experiment,” he meant that we have (in his view) committed ourselves to this position, but we do not know how it will play out over time. No nation had ever before embraced such a bold approach to free speech, and Holmes understood that it could turn out badly. In the end, we might come to embrace bad ideas that were destructive of our highest aspirations as a nation. A “safer” approach might have been to give the government the authority to rule out of bounds those ideas that seemed to government officials to be unwise. The key to the “experiment,” in Holmes’ view, was that we did not give government officials that power. Instead, we entrusted the American people with the freedom to espouse any ideas they wished, and we counted on them to make sound judgments about which ideas to embrace and which to reject. This was, indeed, a bold and risky “experiment.” The fundamental notion was that it was better to trust the American people to sort things out through the “marketplace of ideas” than to permit elected officials to decide what ideas can and cannot be advanced.
In some sense, of course, the creation of the American government and the crafting of our Constitution was an “experiment.” The Framers hoped it would all work out well over time, but there were no guarantees. The specific structure of the national government, the powers assigned to the executive, the Congress and the judiciary, and the relationship between the states and the federal government were all “experiments.” We did, after all, have a Civil War. But the Constitution’s robust protection of free speech, as understood and advocated for by Holmes, was certainly one of the riskier components of that experiment.
QUESTION: As you write, “Freedom of speech has become so much more than just a legal principle. It has become a part of the national identity, and in so many ways we have learned to define ourselves as a people through the process of creating the principle itself.” Can you elaborate? In the age of social media, it can sometimes seem that the freedom of speech produces more fragmentation than unity.
BOLLINGER & STONE: As much as the First Amendment is about “rights” — the right of dissent, of sovereignty residing in the citizenry and not in the government, and so on — it is also about the character of society. If you were to ask the average citizen what values define the United States, the answer would likely include the right to speak freely without fear of government censorship and a general commitment to a free press. And when people discuss freedom of speech and press, you frequently hear about the capacity to reason and respond, the recognition of the importance of compromise, and, sometimes, even about bravery, magnanimity and self-doubt. This basic principle is for most people a source of pride and, certainly, of differentiation from authoritarian regimes. There has also been a notable coalescence across the political spectrum in favor of free speech and press, even though on some issues (e.g., campaign finance) there can be sharp divides between conservatives and liberals concerning how best to apply these principles. Finally, it is worth noting that there is an interesting, if underexplored, phenomenon of the constitutional jurisprudence affecting public attitudes about free speech beyond the realm of state action, in the private sphere.
To the point that free speech in the context of the newest technologies of communication — and social media, in particular — may be working to “fragment” rather than to “unify” American public thought and discussion, one must be very careful. It is possible that the doctrines and jurisprudence governing freedom of expression that we have built up over the past century will now have to be modified in light of the adverse effects on the public mind as a result of the influence of the internet. Self-isolation from contrary viewpoints, excess attention to the trivial, rising anger and polarization, manipulation of public opinion through the spread of propaganda and misinformation, these and other oft-cited problems of the internet must be taken seriously. But, in this moment of despair about the internet and free speech, it is useful to remember that only a decade ago the internet and social media were being credited with democratizing opportunities for speech and with offering meaningful advances in the spread of knowledge. It may take some time to reach an accurate and balanced assessment regarding the issues of free speech and the internet, while the many players involved also adjust their behavior in light of the realities of this new medium. We should allow for that opportunity before we take stock of the jurisprudence of free speech and start to overhaul it.
QUESTION: You write that “in many of our major First Amendment cases the Justices who were most sensitive to the need to devise a strong principle of free speech were appalled by the state of mind prevalent in the society that produced the frenzy of censorship.” Could one say that the freedoms of speech and press are in fact more counter-democratic values than truly democratic ones?
BOLLINGER & STONE: It is common to hear people say, when talking about the purpose of the First Amendment, that it is to protect the rights of citizens against “government” censorship, implying that the government is acting somehow independently of the citizenry. That may on occasion be true, but much more common, particularly during cycles of the most severe intolerance, is that the government has abridged the First Amendment rights of dissenters with the full support of the majority of citizens. In those instances, the court is called on to counter a democratically arrived-at law and uphold First Amendment rights. The independence of the judiciary is, in this way, central to the form of self-governing democracy we have chosen through our Constitution. But this construct raises several questions: First, is this the best system? Other democracies, such as the United Kingdom, do not rely on the judiciary to secure freedom of speech over time. Second, has our particular system worked, in fact? It is a striking reality that in the periods of greatest national stress — namely that of World War I and the era following the end of World War II — the Supreme Court failed to muster the courage to resist extreme intolerance towards dissent, at least measured by current standards of freedom of speech and press. Have the lessons of those failures registered in our minds since then, such that we can now count on the judiciary to protect our rights in times of national panic and insecurity? That remains to be seen.
QUESTION: Former Justice Albie Sachs of the South African Constitutional Court suggests in his chapter that the U.S. Constitution is centered on free speech, whereas the South African Constitution is centered on equality. Do you agree? And what might the Supreme Court learn from South African approaches?
BOLLINGER & STONE: Sachs is trying to explain why under our First Amendment jurisprudence racist speech is protected, as the Supreme Court held in 1968 in Brandenburg v. Ohio, a case involving hateful and inflammatory speeches by participants in a Ku Klux Klan rally. Noting that the South African Constitution mandates a different outcome, he postulates that South Africa is more concerned than the United States about eliminating the vestiges of racism and apartheid than in securing a robust right of freedom of speech. We acknowledge the essence of Sachs’ insight, with the contrast partly attributable to our respective countries’ different, if similarly inexcusable, histories in this regard.
But there is also this to consider when assessing the modern First Amendment and its relationship to racism in America. Several of the most remarkable First Amendment cases were interlinked with the civil rights movement of the 1950s and 60s. This is especially notable in the most famous First Amendment decision of the court in New York Times Co. v. Sullivan (1964). While that case, in a narrow sense, was about state defamation laws and the rights of citizens to criticize government officials, the facts of the case involved claims made (some false) by civil rights groups about Alabama officials’ improper treatment of blacks and their persecution of Martin Luther King Jr. It was patently clear that the libel judgment against The New York Times in the state trial court was concerned with punishing the expression of pro-civil rights views, not with protecting the reputation of the plaintiff (a member of the Montgomery City Council). And the Supreme Court was no doubt moved to reach its decision, at least in part, by a felt need to protect that expression and to support an emerging national consensus that the question of race in America must be addressed. In other words, you can look at the modern jurisprudence of the First Amendment and see its development inextricably linked to the struggle for equality in the United States.
QUESTION: Last June, Justice Elena Kagan in dissent in Janus v. AFSCME accused Justice Samuel Alito’s majority opinion of “weaponizing the First Amendment.” What do you think she meant by that?
BOLLINGER & STONE: Traditionally, the Supreme Court has most often protected speakers advocating “liberal” views in its application of the First Amendment. This is so because historically government has most often sought to silence “liberal” speakers, whether they be political dissenters, civil rights marchers, proponents of sexual expression or critics of public officials. Even the conservative Burger Court, for example, protected speakers who advanced “liberal” views in more than twice as many cases as it protected speakers who advanced more “conservative” views. This was due less to the makeup of the court or the biases of the justices than to the ways in which government tends to restrict free speech and in the traditional understanding of the scope and purpose of the First Amendment. Under the Roberts Court, though, this has changed dramatically. The Roberts Court has protected “conservative” speakers in six times as many decisions as it has protected “liberal” speakers. (For the source of these data, see Adam Liptak’s report in The New York Times.)
This dramatic shift is due largely to the ways in which the Roberts Court has redefined the scope and focus of the First Amendment. In particular, it has given much greater protection than ever before to corporate and commercial speech and to the unlimited expenditure of money in the political process. This shift in the focus of the court’s protection and understanding of free speech was evident in two decisions at the end of last term. In National Institute of Family and Life Advocates v. Becerra, the Supreme Court, in a 5-4 decision, with all of the conservative justices in the majority, held that a pregnancy-counseling service that strongly opposes abortion could not constitutionally be required to notify patients of the availability of state-financed abortions. The next day, in Janus, the same five-justice majority overruled a 40-year-old precedent and held that members of public sector unions cannot constitutionally be compelled to pay union dues even to cover the costs of collective bargaining, a decision that did serious damage to the effectiveness of public-sector unions. It was this shift in the court’s understanding of the First Amendment that led to Kagan’s charge in Janus that the justices in the majority in these cases were “weaponizing” the First Amendment to further their own political and ideological ends.
QUESTION: In February, Chief Justice John Roberts suggested in remarks at Belmont University that he’s “probably the most aggressive defender of the First Amendment.” Would you agree?
BOLLINGER & STONE: It is probably true that Roberts has voted to hold more laws unconstitutional under the First Amendment than any other justice since he arrived at the court. This is so because he not only joins his conservative colleagues when they vote to hold laws unconstitutional when they restrict corporate speech, commercial speech, campaign expenditures and other forms of “conservative” speech, but also because he sometimes joins his more liberal colleagues in cases in which at least some of his conservative colleagues dissent. Examples of the latter would be United States v. Stevens (2010); Snyder v. Phelps (2011); and United States v. Alvarez (2012). In some other cases, Roberts, along with some or all of his conservative colleagues, dissents from decisions in which the more liberal justices reject free speech claims. See, for example, Walker v. Texas Division, Sons of Confederate Veterans (2015) and Christian Legal Society v. Martinez (2010). But there are other cases in which Roberts and his conservative colleagues reject free speech claims over the dissents of his more liberal colleagues. See, for example, Holder v. Humanitarian Law Project (2010) and Morse v. Frederick (2007). The bottom line is that if one defines “the most aggressive defender of the First Amendment,” as the justice who most often votes to hold laws unconstitutional under the First Amendment, then Roberts’ claim might well be accurate. That does not mean, however, that Roberts has the most sensible understanding of the First Amendment.
QUESTION: Also in February, Justice Clarence Thomas, concurring in the denial of review for McKee v. Cosby, suggested that the justices reconsider New York Times Co. v. Sullivan. What was this case, and what might Thomas’ proposal portend for future jurisprudence in this area?
BOLLINGER & STONE: In McKee v. Cosby, Kathrine Mae Mckee was one of the women who accused Bill Cosby of sexual assault. Cosby’s lawyer responded by calling her a “liar.” McKee sued for defamation. The lower courts ruled that McKee was a limited-purpose public figure and that under the First Amendment she therefore could not recover for defamation unless she could prove that the lawyer had made his statement either with knowledge that it was false or with reckless disregard for the truth. The lower courts concluded that McKee could not meet that burden and therefore dismissed the case.
The Supreme Court unanimously denied McKee’s petition for a writ of certiorari. Thomas wrote an opinion, joined by no other justice, in which he called for the court to cast aside the its monumental 1964 decision in Sullivan and revert to the “original meaning” of the First Amendment. In short, Thomas correctly observed that at the time the First Amendment was adopted individuals who made statements that defamed the reputations of public officials and public figures were liable for defamation unless they could prove the truth of their statements. In Sullivan, the court, in a unanimous decision, rejected what was presumably the “original understanding” of the First Amendment and held that public officials could not recover for defamation unless they could prove both that the statement was false and that it was made by the defendant either with knowledge that it was false or with reckless disregard for the truth. A decade later, in Gertz v. Robert Welch (1974), the court extended this to defamation actions brought by public figures.
The Supreme Court reasoned in Sullivan that experience had proved that the traditional common-law rule led to dangerous abuse and “self-censorship” and that it was therefore inconsistent with our nation’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” The court’s opinion in Sullivan has been lauded by the renowned First Amendment scholar Harry Kalven as perhaps “the best and most important” opinion the Supreme Court “has ever produced in the realm of freedom of speech” and by the eminent legal philosopher Alexander Meiklejohn as “an occasion for dancing in the streets.” Indeed, the continuing legacy of Sullivan is evident every day in a world in which we confront presidential charges of “fake news” and accusations that the press is “the enemy of the people.” More than any other decision in American constitutional history, Sullivan is essential to our nation’s dependence on a free, open and courageous press. It is, frankly, bizarre that Thomas should choose this moment in American history for calling for a return to the world of the Framers. We can take comfort, at least for the moment, that none of his colleagues joined his opinion.
QUESTION: “Now with the powerful globalizing forces of open trade and investment, communications, and the movements of peoples,” you write, “we are increasingly facing a set of issues that can only be addressed through collective action of citizens around the world. How we will develop the international norms of free speech and press needed to protect that process of discussion and decision is a profound problem.” What role do you foresee for the U.S. Supreme Court in facing these international issues?
BOLLINGER & STONE: For the past 100 years, we have built a complex jurisprudence of decisions and doctrines explaining the purpose and guiding the application of the principles of freedom of speech and press. The underlying premise of this effort has been that the citizens and residents of the United States have a deep interest in advancing knowledge and in exercising their sovereign responsibilities to govern the society. The focus has been internal to the country. In the realm beyond the borders of the United States, the government’s interests in advancing foreign policies and in protecting national security were recognized as paramount, and these interests received special deference when they came into conflict with free speech and press.
As the world becomes more and more integrated and interdependent, and the issues confronting nations and individuals become increasingly global in scope, and with the corresponding establishment of the first truly world-wide communications technology (i.e., the internet), the perspective from which we think about the application of the First Amendment must also shift. The balance of interests at stake has changed. American citizens now have a much greater need to participate in public discussions around the world, both by speaking and by hearing. And those outside the country have an elevated desire to participate in the American public forum. At the same time, the government’s responsibility to protect the nation domestically and in the foreign realm now requires far more expansive engagement. We already see the elevated tensions arising around matters such as foreign “meddling” in U.S political debates and elections, or foreign nationals releasing classified government information, or U.S. citizens participating in foreign political activities, or foreign governments imposing penalties on speech emanating from the United States and protected by the First Amendment. The list of new issues and new interests is endless, and ultimately the Supreme Court will have to chart a course through this rapidly and irreversibly changing landscape.
QUESTION: In your epilogue, you write that “our most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise.” Are we in such a moment? What cases might stand the test of time?
BOLLINGER & STONE: We do appear to be in a moment of national crisis, one with direct consequences for freedom of speech and press. There is an array of critical issues surrounding digital communications technology and its various speech-related platforms. The effects of these technologies on public thought and discussion and their vulnerability to manipulation by actors (foreign as well as domestic) with evil intent are a source of deep concern. Then there are major reasons to fear the rise of authoritarian behavior in the government. Repeated declarations by the U.S. president that journalists are the “enemies of the people” and the purveyors of “Fake News,” along with mounting reckless statements stoking intolerance towards opponents and minorities, are reminiscent of, even if still not in the same league as, those earlier periods of great insecurity and repression, when we confronted the depths to which the nation could descend in abandoning First Amendment principles.
Now, whether the courts would today bring courage and creativity to interpreting and applying the First Amendment is very much an open question. We remain optimistic, for several reasons. Though recent in terms of the total life span of the nation, we have now had a solid half century of strengthening protections for freedom of speech and press. As noted earlier, that core commitment appears to be sustained across partisan political lines, at least in the judiciary. Cases such as Sullivan are revered and provide a source of stability that simply did not exist in the former periods of crisis. But, most of all, there are now several generations of people who have been educated in the values and the nuanced application of the First Amendment (especially in law) and stand ready to defend it against assault and to bring reason and wisdom to inventing new doctrines as needed. But only time will tell, and the history of the last century gives good cause for concern.
QUESTION: What do you foresee for the next century of free speech and free press at the court?
BOLLINGER & STONE: One fundamental question for the future is whether the Supreme Court has given too much scope to the freedom of speech. One obvious area of controversy concerns the realm of campaign finance. At present, the court, led in this respect by conservative justices, has aggressively limited the authority of the government to regulate money in the political arena. In the eyes of many, this poses a serious threat to the functioning of our democracy. In the eyes of others, though, it is dangerous to permit elected officials to regulate the electoral process in this manner because of the risk that, if given free rein, they will craft regulations that manipulate and distort our democracy in order to perpetuate their own electoral success.
Another fundamental question for the future concerns social media. The advent of social media was once thought to be a boon to democracy. Suddenly, it would be possible for individuals to reach hundreds, perhaps thousands, perhaps millions of fellow citizens with their thoughts, their concerns and their arguments about public policy. But the current state of social media poses a threat to the very functioning of our democracy. With the dissemination of “fake news” by interest groups and even foreign interventionists, American citizens are increasingly polarized and subject to serious manipulation. The obvious “solution” is for government to intervene and to police social media to ensure that intentionally false statements and other efforts to distort and manipulate public opinion do not gain traction. But, of course, this poses a serious threat to the First Amendment. As we have learned over the past century, it is dangerous to give government the authority to regulate what can and cannot be said in public discourse. The risk of abuse and manipulation in itself threatens the very notion of our democracy. But to do nothing is dangerous, as well.
These are two of the most profoundly important challenges for the future.