From the Radio Free Michigan archives ftp://141.209.3.26/pub/patriot If you have any other files you'd like to contribute, e-mail them to bj496@Cleveland.Freenet.Edu. ------------------------------------------------ ========================================================================= These articles, "Can We Take Our Freedoms For Granted" by Richard Crilley of the Bill of Rights Foundation and "Freedom of Expression," briefing paper #10 of the American Civil Liberties Union, offer lucid and well- documented insights into the nature, history and practical aspects of the freedoms we enjoy (and some which we don't) as American citizens. ========================================================================= Downloaded from: THE CIVIL LIBERTIES ELECTRONIC FORUM Networking the National Lawyers Guild Civil Liberties Committee 617-221-5815 CAN WE TAKE OUR FREEDOMS FOR GRANTED? by Richard Criley Bill of Rights Foundation "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances." First Amendment to the U. S. Constitution (1) We assume that the United States is dedicated to individual freedoms; it's part of our national identity. But as individuals, we seldom appreciate our constitutional freedoms until we are unjustly treated. An abusive police officer, an unfair judge, an unresponsive tax auditor, or some other person in a position of authority can vividly show us how easily our rights can be trampled. Then we are outraged and want to do something to defend our fragile freedoms. FREEDOMS FOR ALL--OR FREEDOMS FOR NONE What can we do? Our system of individual rights depends upon their availability to *everyone* -- including some people whose beliefs we may not like. But if the constitutional rights of any unpopular group or minority are weakened by a decision of the Supreme Court or an Act of Congress, we will all lose some of our freedom in the process. The First Amendment declares that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances." This protects us from an abusive government policy against disagreement or dissent. The colonists wrote it after their treatment under repressive policies of the British, to guarantee freedom in America. The First Amendment guarantees freedoms that are both individual and collective. If the *individual* is not free to express his or her opinion, not only is that individual deprived of a basic freedom, but the rest of society is deprived of the right to hear all sides of a controversial question. Without meaningful debate, democracy is reduced to a hollow shell. The wisdom of any decision that is translated into governmental action depends on the public's access to all the pertinent facts and opinions. When government propaganda replaces free debate, the consent of the governed has been engineered, and democracy does not properly function. Under the Constitution, the *people* are the ultimate authority. The preamble to the Constitution declares, "We, the People of the United States . . . do ordain and establish this Constitution. . . ." This empowerment of the people depends upon our right to know what the government is doing in our name. If the public cannot discover the truth because the government suppresses opinion or conceals relevant facts (calling it security), we citizens lose control of our democracy and take a step toward dictatorship. The rights of all are diminished. Freedom of expression and openness of government are closely related. Both are critical ingredients of democracy. Let us take a look at what's happened to our freedoms since the end of World War II. THE NUCLEAR ERA--A THREAT TO LIFE AND FREEDOM Millions of Americans are aware of the threat of nuclear war; but few of us recognize how the nuclear era placed our democratic institutions in jeopardy. The world entered a new era when our atomic bombs were dropped on Hiroshima and Nagasaki. For the first time in history the weapons of war carried the potential of destroying all human life. As Albert Einstein said, "The unleashed power of the atom has changed everything except our modes of thinking, and thus we drift toward unparalleled catastrophes." U.S. Government reliance upon nuclear weaponry as a dominant element of foreign and domestic policy, while propounded as a defense of democracy, is in fact its greatest threat. Four decades of adherence to this policy has fundamentally altered the nature of our constitutional democratic process and poses a paramount threat to civil liberties. . . . (2) American Civil Liberties Union 1983 Biennial Conference Report Instead of the peace that we hoped would follow the Allied victory over Hitler and the Nazi ideology, the U.S. entered a cold war with our wartime ally, the Soviet Union. At first only the U.S. possessed nuclear weapons, and our national security system was focussed on guarding our "atomic secret." But given the universality of scientific knowledge, the "atomic secret" was inevitably unraveled by Soviet scientists and military planners who created and exploded their nuclear bomb a few years later. The U.S. government, however, encouraged the belief that the Soviets had figured out the power of the atom only because somebody stole our "atomic secret." (3) In the political and anti-Soviet hysteria of the 1950's, political dissent in America was widely equated with disloyalty and treason. Popularly known as the "McCarthy era," the period actually began at the end of World War II, before Senator Joe McCarthy rose to national prominence in 1950, and it continued long after his death in 1957. (4) This political era was the product of many factors. U.S. corporations sought to take advantage of the post-war pre-eminence to shape the emerging structures of the third world to their liking. (5) The political center shifted to the right following the death of Franklin Roosevelt. The news media adjusted to the new climate and in retrospect appears to have been easily manipulated by government agencies. Congress, dominated by the 1950's hysteria of "anti- Communism," supported the development of an unprecedented peacetime military establishment, a network of repressive government institutions, the growth of right-wing blacklisting and witch-hunting of alleged traitors. The Supreme Court retreated from the Bill of Rights. Many labor unions, liberal organizations and other independent groups which had traditionally defended civil liberties retreated in the 1950's to avoid being branded "subversive." Some groups even purged their membership ranks of dissenting voices. Among the many forces which contributed to McCarthyism, two government institutions played a leading role in repressing the First Amendment right to dissent. One, the House Un-American Activities Committee, operated in the spotlight of media attention. The second, the Federal Bureau of Investigation, performed its most damaging work under cover of secrecy. "The principle at stake was the First Amendment, the right of people not to be punished for dissenting beliefs. And so I would say that one of the first lessons of the '50's is the need for serious national First Amendment education: what it is, how to use it, how to know when it is under attack, and how to defend it. Victor Navasky, Editor, The Nation, at the "No More Witch-Hunts" rally, Chicago, 1981 (6) HUAC--HIGH COURT OF THE POLITICAL INQUISITION The headline-hunting House Un-American Activities Committee (HUAC) was officially a legislative committee of Congress. But contrary to constitutional principles, HUAC actually functioned as the chief public prosecutor and judge of political behavior and heresy. HUAC subpoenaed, denounced, and punished the individuals and groups it claimed were guilty of being "un-American". It was the role model for similar investigative committees which sprang up in the U.S. Senate and state legislatures across the country. HUAC's voluminous published hearings, reports and catalogues of "subversives" became an official index of those condemned to be ostracized and blacklisted. Blacklisted individuals found themselves unable to get work and sometimes housing, because of accusations someone had made about their political beliefs or activities. Many thousands of American were called before HUAC or another of the investigative committees as "unfriendly witnesses" to be publicly judged and pilloried. Persons named by informers suffered disruption of their lives and careers. Even more important, fear of being branded drove millions of citizens away from political activity and open expression of their opinions. These "witch-hunt" victims were not charged with legal offenses; they were condemned and punished without regard to Constitutionally mandated rules of evidence or rights to due process. (7) AMERICA'S SECRET POLICE The Federal Bureau of Investigation (FBI) abused its mandate for law enforcement in the 1940's, 50's 60's and 70's. Secretly it engaged in destroying those political views and opinions which FBI Director J. Edgar Hoover did not personal approve. With its awesome staff of disciplined agents, the FBI organized a vast network of political spies who infiltrated thousands of political, religious and civic organizations. It trained and coordinated similar operations by other law enforcement agencies at every level of government. In the City of Chicago alone, from 1966 to 1976, the FBI employed (at a cost of $2.5 million) over 5,000 secret undercover informers to operate within civic and political organizations which were violating no laws. For 16 years (1960 to 1977), the FBI employed 1,600 informers to infiltrate *one* small political group, the Socialist Workers Party (at an estimated cost of $26 million). (8) Such was the national pattern. The information gathered by the FBI's informant network was supplemented by illegal wiretaps, letter openings, burglaries of office files, secret examination of bank records, clippings from newspapers, and physical surveillance. At the FBI and other government offices, vast files of organizations' political policies and individuals' opinions were catalogued according to their degrees of presumed "dangerousness" in the FBI's secret "Security Index." Thousands of individuals in the FBI Index were targetted for round-up and detention in case of a "national emergency," although it is still unclear what constituted a "national emergency." The FBI created this detention list in the 1940's, even before legislation was passed providing any statutory authority (the Emergency Detention Act of 1950). (9) "COINTELPRO is the FBI acronymn for a series of covert action programs directed against domestic groups....Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that...the Bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association, on the theory that preventing the growth of dangerous groups and the propogation of dangerous ideas would protect the national security and deter violence. Final Report of the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities - Book Three, Staff Report, April 23, 1976. (10) THE FBI NEUTRALIZATION PROGRAM Collecting information was only the starting point of the FBI's "neutralization program." One segment of this program, with the code name of COINTELPRO, became a major scandal when its existence was first revealed to Congress in 1976 following the Watergate investigations. Established to injure and discredit certain targetted advocates of social change, it paid special attention to those who voiced criticisms of the FBI. According to the Congressional Committees investigating COINTELPRO, the program was an illegal and unconstitutional abuse of power by the FBI. When the Freedom of Information Act was amended in 1974 to remove a special exemption that had kept the FBI's records secret, it opened the door to an unending stream of details of FBI misconduct. Hundreds of thousands of pages of documents now reveal the nature of the FBI's "neutralization" programs directed against individuals in such organizations as The Southern Christian Leadership Conference, the National Committee Against Repressive Legislation, the National Lawyers Guild, and Students for a Democratic Society, as well as numerous other civil liberties, civil rights, peace, labor and social action groups. With intimate knowledge of the organizations' internal structures, personalities, plans and projected publications, the FBI could effectively disrupt and damage target groups. Counter- demonstrations were initiated, encouraged and coordinated by the FBI. Speaking tours and meetings were disrupted, anonymous "poison pen" letters were selectively mailed to discredit leaders and stimulate factional disputes. Forged leaflets were distributed in an effort to disrupt activities and create confusion. Sources of organizational income dried up as contributors were harassed. Divisive policies and factional strife were nurtured by infiltrators acting as agents provocateurs. (11) Working secretly with HUAC and its counterparts, the FBI provided names of individuals to be attacked in committee hearings, supplied informer witnesses to "name names," and laundered secret information from its files for public dissemination. With this supposedly "public source" information, the FBI conducted a massive campaign to manipulate public opinion through secret contacts with a nationwide network of columnists, commentators, editors, reporters, and radio/TV producers. Much of the FBI record is still unavailable to the public, but from what has been released, it is clear that the total effect of the FBI's political interventions on our national life was considerable. Many political and civic organizations did not survive the FBI "neutralization" treatment; most were seriously weakened. The FBI undoubtedly did succeed in leaving its imprint on public opinion, chilling the free expression of ideas, distorting public perceptions, changing the nature of public debate and influencing the course of national policies. During the long reign of FBI Director J. Edgar Hoover, the FBI functioned as a law unto itself. So great was Hoover's prestige and power that no President dared to replace him; no Attorney General (theoretically Hoover's superior) could exercise control or supervision. Hoover's special files on the personal lives of government leaders, which he kept in his private vault, were an effective "insurance policy" against political opposition to the FBI. (12) Few Senators or Representatives dared express criticisms or question FBI appropriations. With Hoover's death in 1972, the FBI was no longer an impregnable bastion of power, and Congress did begin to exercise some Control over the agency. A REBIRTH OF FREEDOM The post-Watergate years witnessed a rebirth of constitutional freedom. After strengthening the Freedom of Information Act in 1974, Congress re-instituted its oversight (previously non-existent) over intelligence agencies. HUAC and its counterpart, the Senate internal Security Subcommittee, were abolished. Repressive laws were repealed or made inoperative. New guidelines governing the FBI were issued by Attorney General Edward Levi (the "Levi guidelines") seeking to limit the FBI's investigative power to legitimate law enforcement matters. (13) Rules for secrecy classificatiton of government documents were liberalized, recognizing the public's right to be informed. We seemed to be awakening from the long political nightmare of the McCarthy/HUAC/Hoover era. RETURN TO REPRESSION IN THE 80s In the 1980s, however, the trend toward greater freedom is being reversed once again. In December 1981, President Reagan authorized the Central Intelligence Agency (CIA) to engage in domestic spying again, (Executive Order 12333) despite Congress's original intent to limit the CIA to intelligence collection abroad. In April 1981, the President established new rules for classification of documents, severely limiting the right of public access, emphasizing "security" interests in more secrecy, making declassification more difficult, and permitting re- classification of documents that had previously been released to the public. Since classified documents are exempt from the Freedom of Information Act, President Reagan's order has greatly reduced the amount of information previously available to citizens. "...it is axiomatic that individual liberties are secondary to the requirements of national security and internal civil order." "Mandate for Leadership," Heritage Foundation report presented to President Reagan's transition team. (14) For the first time ever, in June 1981, Congress imposed criminal penalties for publishing information already made public, with the Intelligence Identities Protection Act. In January 1983, investigative reporters, historians and other researchers were priced out of the information market, with new administrative guidelines for Freedom of Information Act requests that greatly increased fees for obtaining documents. In March 1983, the President issued a directive (National Security Decision Directive 84) to stop unauthorized leaks of information from government officials. In domestic security and terrorism investigations it required that government officials sign an agreement that never in their lifetimes would they write or speak publicly about their government experience, without obtaining prior clearance. Willingness to take lie detector tests when requested was made a condition of government employment. This Presidential act extended controls over freedom of speech (previously applied only to CIA personnel) to all executive agencies. Vehement protests from both the House and the Senate have presently forced a temporary suspension of the order. (15) In March 1983, new guidelines for the FBI became effective, rescinding the earlier Levi guidelines. They permit the use of informers and other intrusive means even without a reasonable cause to believe that any criminal violation is taking place. Mere speech, without evidence of criminal conduct, will be enough to trigger investigations in areas legally protected by the First Amendment. In April 1984, President Reagan proposed an "anti-terrorism" bill (S. 2626/H.R. 5613) which could imprison Americans for ten years for supporting or "acting in concert with" groups or nations designated as "terrorists" by the Secretary of State. Representative Don Edwards (Democrat, California), chair of the House Judiciary Subcommittee on Constitutional Rights, observed that under the proposed law "the Secretary by an edict can almost create the crime himself." (16) Courts would be forbidden from questioning the validity of the Secretary's designation. On the other hand, the bill would exclude from prosecution activities "conducted by officials of the United States government or their agents"--such as the 1984 mining of Nicaraguan harbors or other "authorized" terrorist acts against people in other countries. According to the American Civil Liberties Union, the Reagan "Anti-Terrorism Bill" is "wholly unnecessary, since current law [already] prohibits bombing, sabotage, kidnapping, and other crimes which may be committed by terrorist organizations or factions." (17) But the proposed legislation would create a new political crime: opposing government policy in such areas as Central America or the Middle East. Such nonviolent acts as sending school books to Nicaragua, or voicing support for a negotiated settlement in El Salvador, would be made criminal. Because of strong opposition in Congress, this legislation has not yet been passed. WHAT WILL THE FUTURE BRING--DEMOCRACY OR A POLICE STATE? With these disturbing developments in the 1980s, all of the components are in place for a return to a new era of coordinated repression of our freedoms. Our democracy has survived some difficult tests before, not solely because of the vigilance of a vast number of our citizens, but because of some fortunate turns of history. President Eisenhower appointed a Supreme Court Chief Justice who was not previously noted for his support of civil liberties, but Earl Warren became an outstanding champion of the Bill of Rights and blunted the impact of McCarthyism in the mid-50s. HUAC leaders made many mistakes in the 1940's and 1950's, becoming entangled in criminal violations which contributed to discrediting the Committee. President Nixon (perhaps foolishly) kept secret tapes and they provided the evidence of "high crimes and misdemeanors" that ensured his impeachment, forced his resignation, and exposed the misuse of government agencies. Freedom loving Americans may not be so lucky again. Our alertness to events, our opposition to every step taken that would undercut our constitutional rights, our thoughtfulness in the voting booth and our courage to resist oppression will determine whether or not we remain a democratic society or adopt an American version of a police state. "Our First Amendment was a bold effort...to establish a country with no legal restrictions of any kind upon the subjects people could investigate, discuss, and deny. The Framers knew, better perhaps than we do today, the risks they were taking. They knew that free speech might be the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny." U. S. Supreme Court Justice Hugo Black (18) For a printed copy of this material with footnotes in pamphlet form, send $2 to Bill of Rights Foundation 220 S. State St. Chicago, IL 60604 ========================================================================= Published by the Department of Public Education American Civil Liberties Union 132 West 43rd Street. New York, NY 10036 (212) 944-9800 To visit the ACLU gopher, try "gopher aclu.org 6601". ACLU Briefing Paper Number 10 Freedom of Expression "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." -- The First Amendment The inhabitants of the North American colonies did not have a legal right to express opposition to the British government that ruled them. Nonetheless, throughout the late 1700s, these early Americans did voice their discontent with the Crown. For example, they strongly denounced the British parliament's enactment of a series of taxes to pay off a large national debt that England had incurred in its Seven Years War with France. In newspaper articles, pamphlets and through boycotts, the colonists raised what would become their battle cry: "No taxation without representation!" And in 1773, the people of the Massachusetts Bay Colony demonstrated their outrage at the tax on tea in a dramatic act of civil disobedience: the Boston Tea Party. The early Americans also frequently criticized the much-despised local representatives of the Crown. But they protested at their peril, for the English common law doctrine of "seditious libel" had been incorporated into the law of the American colonies. That doctrine permitted prosecution for "false, scandalous and malicious writing" that had "the intent to defame or to bring into contempt or disrepute" a private party or the government. Moreover, the law did not even accomodate the truth as a defense: in 15th century England, where absolute obedience to the Crown was considered essential to public safety, to call the king a fool or predict his demise was a crime punishable by death. The colonies' most celebrated seditious libel prosecution was that of John Peter Zenger in 1735. Zenger, publisher of the _New York Weekly Journal_, had printed a series of scathing criticisms of New York's colonial governor. Although the law was against Zenger, a jury found him not guilty -- in effect, nullifying the law and expressing both the jurors' contempt for British rule and their support for a free and unfettered press. After Zenger's acquittal, the British authorities abandoned seditious libel prosecutions in the colonies, having concluded that such prosecutions were no longer an effective tool of repression. The stage was set for the birth of the First Amendment, which formally recognized the natural and inalienable right of Americans to think and speak freely: "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Following are the ACLU's answers to questions we have been asked by members of the public about the history of the First Amendment and the freedoms it guarantees. --- What were the philosophical underpinnings of the First Amendment's guarantees? --- James Madison, Thomas Jefferson and the other framers of the Bill of Rights were products of the Age of Enlightenment. They eschewed the superstitions and intolerance of earlier times, believing instead in the power of reason, the search for truth, and the perfectability of human society. Freedom of inquiry and liberty of expression were clearly essential to the process of debate and discovery that they viewed as indispensable to the achievement of human progress. Questioning of authority was also a central theme of the Enlightenment era. The philosophers of the day well understood the tendency of government to perpetuate itself by enacting repressive measures to silence those opposed to its conduct. According to one libertarian thinker of the period, a citizen had the right to "say everything which his passions suggest; he may employ all his time, and all his talents...to do so, in speaking against the government matters that are false, scandalous and malicious," and yet he should be "safe within the sanctuary of the press." Speech was regarded as beyond the reach of criminal sanctions; only "overt acts" could be punished. Given the primacy that the framers assigned to the values the First Amendment embodies, it is fitting that freedom of expression should be the first freedom cited in the Bill of Rights. --- Why does freedom of expression play such a critical role in our constitutional system? --- There are four primary reasons why freedom of expression, which encompasses speech, the press, assembly and petition, is essential to a free society: First, freedom of expression is the foundation of self-fulfillment. Self-expression enables an individual to realize his or her full potential as a human being. The right of individuals to express their thoughts, desires, and aspirations, and to communicate freely with others, affirms the dignity and worth of each and every member of society. Thus, freedom of expression is an end in itself and should not be subordinated to any other goals of society. Second, freedom of expression is vital to the attainment and advancement of knowledge. The eminent 19th century civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. But the right to express oneself is not conditioned on the content of one's views, which may be true or false, "good" or "bad," socially useful or harmful. All points of view should be represented in the "marketplace of ideas" so that society can benefit from debate about their worth. Third, freedom of expression is necessary to our system of self-government. If the American people are to be truly sovereign, the masters of their fate and of their elected government, they must be well-informed. They must have access to all information, ideas and points of view. The precondition for a free society is an informed and enlightened citizenry. Tyrannies thrive on mass ignorance. Fourth, freedom of expression provides a "check" against possible government corruption and excess, which seem to be permanent features of the human condition. Restrictions on freedom of speech always authorize the government to decide how, and against whom, the restrictions should apply. The more authority the government has, the more it will use that authority to suppress unpopular minorities, criticism and dissent. Because freedom of expression is so basic to a free society, the ACLU believes that it should _never_ be abridged by the government. --- What was the early history of the First Amendment and freedom of expression? --- The First Amendment's early years were not entirely auspicious. Although the early Americans enjoyed great freedom compared to citizens of other nations, even the Constitution's framers, once in power, could not resist the strong temptation to circumvent the First Amendment's clear mandate. In 1798, seen years after the First Amendment's adoption, Congress, over the objections of James Madison and Thomas Jefferson, passed the Alien and Sedition Act. Ironically, this Act incorporated much of the English law of seditious libel (indeed, seditious libel remained a part of our law for the next 171 years), and was used by the dominant Federalist Party to prosecute a number of prominent Republican newspaper editors. But none of those cases reached the Supreme Court. Throughout the 19th century and much of the 20th, federal and state sedition, criminal anarchy and criminal conspiracy laws were used repeatedly to suppress expression by slavery abolitionists, religious minorities, early feminists, labor organizers, pacifists and left-wing political radicals. For example, prior to the Civil War every Southern state passed laws limiting speech in an attempt to stifle criticism of slavery. In Virginia, anyone who "by speaking or writing maintains that owners have no right of property in slaves" was subject to a one-year prison sentence. In 1929, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted employers' requests for injunctions that prohibited strikes and other labor protest. Protest against U.S. entry into World War I was widely suppressed, and dissenters were jailed for their pronouncements and writings. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as radical by the government. It was in response to the excesses of this period that the ACLU was born in 1920. --- How did the courts respond to First Amendment violations? --- The lower courts were almost universally hostile to the First Amendment rights of political minorities. However, free speech issues did not reach the Supreme Court until 1919. That year, the Court dealt with free speech for the first time in the case of _Schenck v. U.S._ Charles T. Schenck, a member of the Socialist Party, had been convicted of violating the Espionage Act for mailing anti-war leaflets to draft-age men during World War I. The Supreme Court unanimously upheld his conviction. The prevailing legal view at the time was that any speech that had a "tendency" to cause a violation of law could be punished. The _Schenck_ case was quickly followed by others that ended in decisions equally contemptuous of First Amendment freedoms. Among them was the case of Jacob Adams, convicted under the Sedition Act of 1918 for distributing leaflets that criticized the American military. However, even though the Supreme Court upheld Abrams' conviction, the decision in his case was a watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, stating that speech could not be punished unless it presented "a clear and present danger" of imminent harm. The Holmes-Brandeis dissent marked the beginning of modern First Amendment theory. The Supreme Court declared the inviolability of First Amendment rights for the first time in 1925 in _Gitlow v. New York_, a case that challenged the conviction of a communist revolutionary under New York's Criminal Anarchy law. Although the Court affirmed the conviction, it announced that freedom of speech and press were protected by the First Amendment from federal encroachment, _and_ "are among the fundamental personal rights and 'liberties' protected by the states." This holding paved the way for Yetta Stromberg to prevail, six years later, in an appeal of her conviction under a California law that made it a crime to publicly salute a red flag -- the symbol of revolution. Thereafter, the right to freedom of expression became more secure -- that is, up until the advent of McCarthyism in the 1950s. During this second "red scare," the Supreme Court weakened the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government, no matter how remote the danger of such an occurrence might be. Under this new test, many political activists were prosecuted and jailed for advocating communist revolution. Laws that required people to sign loyalty oaths, swearing that they were not members of any subversive organizations, were also upheld and not reversed until 1967. Finally, in the 1969 case of _Brandenberg v. Ohio_, the Supreme Court struck down the conviction of a Ku Klux Klan member under a criminal syndicalism law and established a new standard: Speech may not be suppressed or punished unless it is intended to produce "imminent lawless action" and it is "likely to produce such action." Otherwise, the First Amendment protects even speech that advocates violence. The _Brandenberg_ test is the law today. --- What forms of expression are protected by the First Amendment? --- In addition to protecting "pure speech," expressed in demonstrations, rallies, picketing, leaflets, etc., the First Amendment also protects "symbolic speech" -- that is, nonverbal expression whose main purpose is to communicate ideas. In the 1969 case of _Tinker v. Des Moines Independent Community School District_, the Supreme Court recognized the right of high school students to protest the Vietnam War by wearing black armbands. In 1989 and again in 1990, the Court upheld the right of an individual to burn the American flag in public as an expression of disagreement with government policies. Other examples of protected expression include images in works of art, slogans or statements on T-shirts, "fashion statements" that incorporate symbols and/or written slogans or declarations, music lyrics and theatrical performances. As well as protecting a free "marketplace of ideas" within our nation, the First Amendment also protects free trade in ideas across U.S. borders (although the law in this area is less well-defined). That protection encompasses both the right of Americans to travel and disseminate their ideas abroad, and their right to receive information from other countries -- in other words, their right to know. As Justice William J. Brennan, Jr. once observed, "The right to receive publications is a fundamental right...It would be a barren marketplace of ideas that had only sellers and no buyers." --- Can speech be curtailed if it is thought to jeopardize national security? --- At several points in our history, particularly during wartime, the government has sought to limit speech in the interest of "national security," a vague term that, if construed too broadly, can be used to justify the suppression of information vital to public discourse. The ongoing controversy that surrounds competing claims of national security and freedom of expression came to a head in 1971 in the _Pentagon Papers_ case. _The New York Times_ obtained a copy of, and published excerpts from, the so-called Pentagon Papers, a voluminous secret history and analysis of the nation's military involvement in Vietnam. When the _Times_ ignored the government's demand that it halt such publication in the interest of national security, the newspaper was enjoined from continuing to publish portions of the document. Two weeks later, on expedited appeal, the Supreme Court ruled that the government could not, through "prior restraint," block publication of any material unless it could prove that the material would "surely" result in "direct, immediate, and irreparable" harm to the nation. Since the government had not met its burden of proof, the _Times_ was free to continue the series. While the Court's decision represented a victory for freedom of speech and the press, it did strike an ominous note by tacitly accepting a national security exception to the First Amendment's ban on prior restraint. And in subsequent years, the Court upheld the government's national security claims in several cases involving former CIA agents who had written their memoirs. The ACLU believes that national security, like all government interests, must be served only in ways that are consistent with our tradition of respect for individual rights. --- Why should racists and other hatemongers, or those espousing anti-democratic political doctrines, have free speech rights? --- The Constitution does not authorize the government to assess the content of speech and the curtail the speech it judges to be irresponsible or wrong. If the government had such power, we would all be in danger. All people within the borders of the United States have the right to express themselves freely, even, in the words of Justice Felix Frankfurter, if they "speak foolishly and without moderation." In a society of laws, the laws must apply to everyone. The ACLU's defense of the free speech rights of groups such as the Ku Klux Klan and the American Nazi Party has often stirred controversy and drawn criticism. But popular and palatable ideas do not need protection from government suppression; only unpopular and offensive doctrines do. As one federal judge has put it, our toleration of hateful speech is "the best protection we have against any Nazi-type regime in this country." The Supreme Court has consistently rejected the notion that speech can be punished because it offends some people's sensibilities, and has generally invalidated statutes and practices that penalize expression based on content. The Court has also taken a dim view of breach-of-the-peace statutes when applied to expressive conduct. In the 1949 case of _Terminiello v. Chicago_, the Court struck down the disorderly conduct conviction of an anti-Semitic priest (suspended by the church for his views), who had provoked a violent confrontation when he denounced Jewish people at a political rally. The Court's decision, written by Justice William O. Douglas, stated: "The function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it invites a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." --- Can free speech be limited in any way? --- The government may place "time, place and manner" restrictions on speech as long as they are "reasonable." For example, requiring people to obtain a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, constitutes a justifiable regulation. But restrictions that are overly burdensome violate the First Amendment. For example, during the 1960s, officials in Southern cities frequently required civil rights activists to apply for permits in order to hold demonstrations, and then granted or denied the permits arbitrarily. Thus, in the 1969 case of _Shuttlesworth v. Birmingham_, the Supreme Court struck down such licensing schemes as unconstitutional. Similarly, in 1977, the Court ruled that the local government's requirement that members of the American Nazi Party post $350,000 in insurance in order to hold a march and rally in Skokie, Illinois was an unconstitutional infringement on the group's First Amendment rights. Insurance requirements were also regularly used in the South to repress civil rights demonstrations. --- Are any forms of expression not protected by the First Amendment? --- The Supreme Court has established several limited exceptions to the First Amendment's protections: FIGHTING WORDS: In the 1942 case of _Chaplinsky v. New Hampshire_, the Supreme Court held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the First Amendment and can be punished. The Court based its decision on the concept that such utterances are of "slight social value as a step to truth." LIBEL: In the 1964 case of _New York Times Co. v. Sullivan_, the Supreme Court held, in a groundbreaking decision, that defamatory falsehoods published about public officials are not protected by the First Amendment and can be punished if the offended official can prove that his/her accuser published the falsehoods with "actual malice" -- that is, with the "knowledge that the statement was false or with reckless disregard of whether it was false or not." While the Court's decision addressed a particular type of common law libel, other kinds of "libelous statements" are also punishable. COMMERCIAL SPEECH: In the 1976 case of _Virginia Pharmacy Board v. Virginia Citizens Consumer Council_, the Supreme Court struck down a state ban on prescription drug advertising on First Amendment grounds. However, commercial speech -- which includes advertising, financial and credit reports, and the like -- still has far less First Amendment protection than other speech. Generally, it can be banned if it is, on the whole, misleading or takes undue advantage of its audience. OBSCENITY: "Obscene" material has historically been excluded from First Amendment protection, which has led to the official banning of such classics as James Joyce's _Ulysses_ and D.H. Lawrence's _Lady Chatterly's Lover_, as well as the criminal prosecution of countless publishers, book distributors, storekeepers, film distributors and artists. But in the 1973 case of _Miller v. California_, the Court re-examined the issue and established a standard for determining whether material is obscene. The Court ruled that material is legally obscene if: (1) the average person, applying contemporary community standards, would conclude that the work, taken as a whole, appeals to prurient interests; (2) it depicts sexually explicit conduct, specifically defined by law, in a patently offensive manner; and (3) it lacks serious literary, artistic, political or scientific value. The _Miller_ test is still the law today. Unfortunately, the Supreme Court's long-standing unwillingness to strike down all obscenity laws as unconstitutional infringements on freedom of expression has allowed censorship to flourish at various times in our history because of public officials' tendency to apply the Court's narrow limits in overbroad ways. This remains a problem with all of the limited exceptions to the First Amendment. --- Is freedom of expression in danger today? --- The right to freedom of expression is being severely tested today, just as it has been throughout the 200-year history of the Bill of Rights. Governments by nature are always seeking to expand their powers beyond proscribed boundaries, the government of the United States being no exception. And since the right to free expression is not absolute, it must be constantly protected against official depredations. Today, artistic expression is under attack, as some groups of citizens seek to impose their morality on the rest of society. Book censorship in the public schools, mandatory record labeling, as well as obscenity prosecutions of rap singers, record distributors and museum directors, are all manifestations of suppression efforts. Artists, performers and authors now occupy the same vulnerable position that political radicals did in the 1950s. If the past two centuries of struggle to preserve freedom of expression have taught us anything, it is that the first target of government suppression is never the last. Whenever government gains the power to decide who can speak and what they can say, the First Amendment rights of all of us are in danger of being violated. But when all people are allowed to express their views and ideas, the principles of democracy and liberty are enhanced. The American Civil Liberties Union 132 West 43rd Street New York, N.Y. 10036 ========================================================================= This document is part of the BeastNet archives. While some portions of this document may contain material originally posted elsewhere on the Internet, a commercial information service or private or public BBS, it is posted here for the general public good and as a service of BeastNet. 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