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The First Amendment protects acts designed to express disgusting opinions.

On Behalf of | Jun 10, 2020 | Firm News

Letting disgruntled citizen vent is important to national security, experts say, but some messages emanating from angry Americans in recent weeks have pressed the boundaries of free speech.  Dr. Jerrold Post, a George Washington University political psychology professor who spent 21 years with the CIA, said that in nations where free speech is snuffed, such as Yemen and Pakistan, domestic terrorism is more prevalent.  Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, as Congress has repeatedly sought to do, but to express disapproval.

This is especially important when the expression is disgusting and goes against a majority viewpoint.  That is when First Amendment protections are most needed.  We don’t need the First Amendment to protect popular or majority viewpoints, we need First Amendment protections to protect the disgusting or even offensive speech.  In 2013, Secretary of State John Kerry offered a defense of freedom of speech, religion and thought in the United States by stating to German students that in America “you have a right to be stupid if you want to be.”  He continued, “And we tolerate it. We somehow make it through that. Now, I think that’s a virtue. I think that’s something worth fighting for,” he added. “The important thing is to have the tolerance to say, you know, you can have a different point of view.”  This is because an important function of symbolic speech is to invite dispute. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).  Moreover, symbolic speech best serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Symbolic speech should be provocative and challenging.  Terminiello, 337 U.S. at 4.  Such freedom will not cause the disintegration of society but will strengthen it. Johnson, 109 S. Ct. at 2547; Barnette, 319 U.S. at 641-42.  To censor symbolic speech, the State must show more than a desire to avoid the discomfort and unpleasantness that accompanies unpopular viewpoints.  The State must bear the heavy burden of showing the forbidden speech would materially and substantially interfere with the rights of others.  Tinker, 393 U.S. at 511.

Speech communicates an idea.  The Supreme Court has repeatedly observed that there are derivative and corollary rights that are essential to effectuate the expression of ideas which are inherent in the rights expressly enumerated in the Amendment.  See, Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965).

As has often been said, “actions speal louder than words.”  When actions communicate an idea it is called symbolic speech.  Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, stripping, wearing arm bands, and burning the flag. It is generally protected by the First Amendment.  Texas v. Johnson, 109 S.Ct. 2533, 2546 (1989); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).  The United States Supreme Court has generally afforded such “speech” the same constitutional protections afforded normal or usual speech.  See, e.g., Brown v. Louisiana, 383 U.S. 131, 142 (1966) (Fortas,J); West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Stromberg v. California, 283 U.S.359, 369 (1931).  ). A number of commentators have argued that symbolic speech is more fundamental to a free society then ordinary speech.  See, e.g., F. Haiman, Speech and Law in a Free Society 6 (U.Chi. Press 1981); Rotunda, The “liberal” Label: Roosevelt’s Capture of a Symbol, 17 Public Policies 377 (Harv. U. Press 1968).

This includes the right to protest has been recognized by the United States Supreme Court in perhaps the most famous right-to-protest case of them all, Texas v. Johnson, 491 U.S. 397 (1989).  See also, Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (pledge of allegiance), Spence v. Washington, 418 U.S. 405 (1974) (attaching a peace sign to the flag), Stromberg v. California, 283 U.S. 359 (1931) (displaying a red flag), and Smith v. Goguen, 415 U.S. 566 (1974)
Here are some particularly disgusting conduct which is nevertheless protected speech.  In Snyder v. Phelps 131 S. Ct. 1207 (2011).   The Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military.  Mr.  Phelps therefore picketed at military funerals of veterans like Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq in 2006. Westboro picketed Matthew Snyder’s funeral displaying signs that stated, for instance, “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” and “Don’t Pray for the USA.”   Phelps was arrested and  argued that his speech (the picketing and the signs) was protected under the Free Speech Clause of the First Amendment to the Constitution.  The Supreme Court  held that the Phelps and his followers were “speaking” on matters of public concern on public property and thus, were entitled to protection under the First Amendment.  Likewise, with Rapkin she was clearly responding to an issue of public concern on public property so that her action to communicate her disagreement with the protestors entitled to protection under the First Amendment.

But what about racist expressions?  Racist speech, like hate speech, can be protected speech.  In Matal v. Tam, 137 S. Ct. 1744 (2017) Justice Samuel Alito (for four justices) explained
 [The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That is why even racists, like the Nazis, must be allowed free speech.  National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). is a United States Supreme Court case dealing with freedom of speech and freedom of assembly of the Nazi Party parading through predominantly Jewish Skoie. ILL. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). and Smith v. Collin. 439 U.S. 916 (1978) (denying certiorari).

These cases clearly demonstrate the answer to racist speech is not censorship but voices of reason raised against racism.