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The First Amendment’s right to talk stupidly: the government cannot criminalize insulting, foolish, offensive and outrageous expression.

On Behalf of | Jan 4, 2016 | Firm News

“Ideas are far more powerful than guns. We don’t allow our enemies to have guns, why should we allow them to have ideas?” Joseph Stalin, Soviet dictator 1925-1953

The history of the First Amendment demonstrates that “[t]hose who won our independence by revolution were not cowards; . . . .” they realized that “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.” Whitney v. California, 274 U.S. 354, 377 (1927) (Brandeis, J., concurring). Today, courts and theorists recognize that free speech is protected for more than its role in democracy: the underlying rationale now includes discovering truth, advancing personal identity and autonomy, and promoting tolerance in society. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 925 (3d ed. 2006).

The First Amendment does not accept the words of Stalin barring distribution of words or ideas; even stupid, offensive expression of ideas. Instead, the First Amendment precludes the government, including the courts, from restricting expression “because of its message, its ideas, its subject matter or its content.” New York Times v. Sullivan, 376 U.S. 254, 270 (1964). This requires that “…citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U.S. 312, 322 (1988).

A citizen has a right to express themselves by using offensive, outrageous words and phrases to convey messages. Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (Westboro Baptist Church’s picketing of the soldier’s funeral with signs such as “Thank God for Dead Soldiers” and “You’re Going to Hell” protected expression because “[we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”); Cohen v. California, 403 U.S. 15 (1971). It is “often true that one man’s vulgarity is another’s lyric” and that free speech involves not only responsible criticism of public officials but the right to speak foolishly and without moderation. Cohen v. California, 403 U.S. at 25-26; Baumgartner v. United States, 322 US 665, 673-74(1944). Emphasis added. Critically, an expression can be offensive, while not being obscene. Luke Records, Inc. v. Navarro, 960 F.2d 134, 139 (11th Cir. 1992). The Supreme Court has recognized that the First Amendment protects expression even if it is:

‘‘disagreeable’’ speech, Texas v. Johnson, 491 U.S. 397, 414 (1989) (burning of the flag)

‘‘distasteful’’ speech, Cohen v. California, 403 U.S. 15, 21 (1971) (wearing of a jacket bearing the words ‘‘Fuck the Draft’’ in a courthouse)

speech that has ‘‘profound unsettling effects,’’ Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (provocative speech)

‘‘misguided’’ speech, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995) (exclusion of a group from a private parade); Cantwell v. Connecticut, 310 U.S. 296, 310 (1940) (religious speech)

‘‘scurrilous’’ speech, Cohen, 403 U.S. at 22

racial epithets, Brandenburg v. Ohio, 395 U.S. 444, 446–47 (1969) (per curiam) (speech at a meeting of the Ku Klux Klan)

speech that ‘‘stirs people to anger,’’ Terminiello, 337 U.S. at 4.

‘‘unseemly expletive[s],’’ Cohen, 403 U.S. at 23.

‘‘four-letter word[s],’’ Id. at 25.

‘‘execrations (cursing or denouncing),’’ Id. at 23.

‘‘contemptuous’’ speech, Street v. New York, 394 U.S. 576, 593 (1969) (burning of the flag accompanied by derogatory words relating thereto).

‘‘offensive’’ speech, Hill v. Colorado, 530 U.S. 703, 715 (2000) (statute prohibiting certain expressive activity
within 100 feet of the entrance to a medical facility); Texas v. Johnson, 491 U.S. at 414; Cohen, 403 U.S. at 23, 25; Street, 394 U.S. at 592

‘‘embarrass[ing]’’ speech, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (boycott of commercial establishments)

‘‘insulting’’ speech, Boos v. Barry, 485 U.S. 312, 322 (1988) (signs near an embassy that might bring the foreign government into ‘‘public odium’’ or ‘‘public disrepute’’

‘‘outrageous’’ speech, Id.,

even ‘‘hurtful’’ speech. Hurley, 515 U.S. at 574.

In fact, former Secretary of State John Kerry offered a defense of freedom of speech and thought in the United States when he said, “People have sometimes wondered about why our Supreme Court allows one group or another to march in a parade even though it’s the most provocative thing in the world and they carry signs that are an insult to one group or another . . . The reason is, that’s freedom, freedom of speech. In America you have a right to be stupid – if you want to be.” Kerry defends liberties, says Americans have “right to be stupid”, Tue, Feb 26, 2013, Reuters,

This comment by John Kerry is not mere political hyperbole. One need only look to the facts of Snyder v. Phelps, supra., to realize that when John Kerry spoke, he spoke the constitutional truth: a father in grief, a son who gave his life for his country, and a religious group that took advantage of the son’s funeral to express a messages like ‘‘God hates and punishes the United States for its tolerance of homosexuality, particularly in [its] military,’’ ‘‘God Hates the USA/Thank God for 9/11,’’ ‘‘America Is Doomed,’’ ‘‘Don’t Pray for the USA,’’ ‘‘Thank God for IEDs,’’ ‘‘Fag Troops,’’ ‘‘Maryland Taliban,’’ ‘‘Fags Doom Nations,’’ ‘‘Not Blessed Just Cursed,’’ ‘‘Thank God for Dead Soldiers,’’ ‘‘Pope in Hell,’’ ‘‘Priests Rape Boys,’’ ‘‘You’re Going to Hell,’’ and ‘‘God Hates You,’’ Snyder, 131 S. Ct. at 1213, that many consider outrageous if not stupid. The cultural pressure on the Court to uphold the verdict against the church was unquestionably intense. Nevertheless, the Court found the expression protected by the First Amendment, even if it involved a private figure like Mr. Snyder. Snyder, 131 S. Ct. at 1217 Any Court which adheres to the First Amendment under such circumstances deserves credit for not constructing an exception to free expression to sustain an otherwise desirable result. By example, the Supreme Court has let all courts know that the First Amendment would not be worth much if it gave way when truly unpopular speech were at issue.
Snyder demonstrates that“[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).

As the late Justice William J. Brennan wrote in holding that flag burning is a form of offensive expression protected by the Constitution, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989) (emphasis added). This freedom to speak exists if speaker and listener are face to face or conveyed anonymously via the telephone. United States v. Popa, 187 F.3d 672, 678 (D.C. Cir. 1999). To persuade others to his own point of view, a speaker may at times resort to exaggeration, to false statement, to vile or abusive language towards people. But we have determined as a nation, in the light of history, that, in spite of the probability of excesses and abuses, free speech is, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. Cantwell v. Conn., 310 U.S. 296, 310 (1940)

Additionally, as Texas v. Johnson, supra, illustrates the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). The First Amendment shields more than political speech and verbal expression; its protections extends to expressive conduct like entertainment, Winters v. New York, 333 U.S. 507, 510 (1948); film, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952); theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); music, without regard to words, Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); “marching, walking or parading” in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U.S. 43 (1977); the refusal to salute the flag as part of a regularized school activity, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632 (1943); and even parades without banners or written messages, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (protecting hurtful expression). “[T]he Constitution looks beyond written or spoken words as mediums of expression.” Hurley, at 569. If the First Amendment reached only “expressions conveying a `particularized message,’” its “protection would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.” Id. (quoting from Spence v. Washington, 418 U.S. 405, 411 (1974)(per curiam)).

Likewise, it is well established that the Constitution protects not only the right to speak a message but the right to receive a message as well. “This freedom [of speech and press] . . . necessarily protects the right to receive . . . .” Martin v. City of Struthers, 319 U.S. 141, 143 (1943); see Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307 -308 (1965) (Brennan, J., concurring). This right to receive information and ideas holds regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510 (1948), is fundamental to our free society. Finally, the Supreme Court has made clear that when a receiver does not want to receive a message, ‘‘the burden normally falls upon the [receiver] to avoid further bombardment of [his] sensibilities.’’ Snyder, 131 S. Ct. at 1220 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 210–11 (1975)).