Speech Stories

How Free Can Speech Be?

Randall P. Bezanson

• Publisher: NYU Press
• Year: 1998
• ISBN:
  9780814786154
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

When we talk about what "freedom of speech" means in America, the discussion almost always centers on freedom rather than speech. Taking for granted that speech is an unambiguous and stable category, we move to considering how much freedom speech should enjoy. But, as Randall Bezanson demonstrates in Speech Stories, speech is a much more complicated and dynamic notion than we often assume. In an age of rapidly accelerated changes in discourse combined with new technologies of communication, the boundaries and substance of what we traditionally deem speech are being reconfigured in novel and confusing ways.

In order to spark thought, discussion, and debate about these complexities and ambiguities, Bezanson probes the "stories" behind seven controversial free speech cases decided by the Supreme Court. These stories touch upon the most controversial and significant of contemporary first amendment issues: government restrictions on hate speech and obscene and indecent speech; pornography and the subordination of women; the constitutionality of campaign finance reform; and the treatment to be accorded new technologies of communication under the Constitution. The result is a provocative engagement of the reader in thinking about the puzzles and paradoxes of our commitment to free expression.

PART 1

Speakers

The First Amendment reads: “Congress shall make no law . . . abridging the freedom of speech.” The guarantee is brief and to the point. But its brevity bristles with ambiguity.

What is the significance of its application to Congress alone? As it turns out, the word Congress is to be read broadly to include all parts of the national government, legislative, executive, and even judicial, and state governments as well.

What does the term “law” mean, and for that matter, the term “no” law? The Supreme Court has never suggested, for example, that fraud accomplished through words cannot be prohibited. As we will see, “no law” does not mean “No law.”

And what about the terms “abridge” and “freedom”? On their face these are terms with uncertain meaning that imply relativity. The First Amendment does not prohibit laws that “in any way interfere with” the “immunity” of speech from regulation. Whether the “freedom” to be accorded speech is “abridged,” then, must depend in part on how great the restriction on speech is, and how pressing the competing interest supporting the restriction might be. Making extortion by speech a crime surely restricts speech, but the restriction is not an abridgment and freedom does not extend that far.

We will confront these ambiguities throughout this book. But the most important ambiguity that will occupy most of our attention in part 1 is the term “speech.” “Speech” is the most important term in the First Amendment, for the term “speech,” alone, contains the substance of the guarantee, with all of the other terms outlining the degree and kind of protection accorded “speech.”

What is this thing called “speech” that the First Amendment protects? Is the First Amendment to be read to guarantee freedom for speech itself—the words, pictures, images, and actions through which messages are conveyed to us? Or does “freedom” belong to the person doing the communicating—the speaker—with protection of the speech an inevitable, though perhaps not necessary, by-product of the speaker’s freedom?

The role of the speaker in the First Amendment’s freedom of speech is the question that will occupy us in part 1. The question is an age-old one, though surprisingly the Supreme Court has only recently begun to give it much attention. Through the three stories that will be told, we will come to discover that the speaker plays a deceptively subtle and complex role in the First Amendment drama.

The first story, “The Jacket,” will force us, initially, to confront the many possible meanings of the term “speech” as they might be applied to the “brutish” lettering placed on a jacket. The story will transport us into the murky depths of First Amendment speech, and then lead us out, happily, by shifting our focus away from the jacket and its painted lettering and toward the young man who wore it, thus defining speech by reference to a speaker, not words alone.

Fittingly, the second story, “The Author,” starts where the first ends. It will make us think anew, perhaps, about one specific kind of First Amendment speaker: an author. Is the person who creates a text the author, or are the readers also authors? When the author’s identity is missing, as with anonymous texts, does the author likewise disappear, leaving the text behind as a mere artifact—speech—that possesses no freedom of its own?

The third story, “The Corporation and the Candidate,” will lead us to the next and final question: What about speech that has no author at all? Here we will explore, in the settings of speech by General Motors, Donald Trump, the NAACP, the ACLU, and the Michigan State Chamber of Commerce, the relationship of mind to speaking. If, for purposes of the First Amendment, speech must have a speaker, must speakers have a mind, a will of their own that, like the civil rights marcher, is being purposefully communicated to others? Do corporations and other forms of collective organizations have minds of their own, and if not, is their expression speech under the First Amendment?

These are the paths down which the three stories will carry us. Each story, in its own way, will invite us to think about issues that are foundational to the very idea of freedom of speech.

Story One

The Jacket
(Cohen v. California, 403 U.S. 15 (1971))

Was it because of the chill in the air that Paul Robert Cohen wore the jacket or was it because of the words “Fuck the Draft” painted on the back? As he put his jacket on and left his home on that fateful spring morning in 1968, Cohen did not realize that his destination, the Los Angeles County Courthouse, would be only the first stop on a much larger journey. He would enter the courthouse of his own volition. He would leave it under arrest. Thus began a journey that would shake the legal world, reshape the meaning of speech protected by the First Amendment to the United States Constitution, and end with a remarkable opinion by the Supreme Court of the United States.

But Paul Cohen, then a young man, was not aware of the journey that lay ahead as he left his home with his jacket on the morning of April 26, 1968. He was scheduled to testify as a witness in a misdemeanor trial at the Los Angeles County Courthouse, a majestic, imposing, and authoritative building whose sheer mass dominated part of the downtown Los Angeles landscape.

The Vietnam War loomed heavily on the consciousness of the American people in April of 1968. Lyndon Johnson had recently eliminated most college draft deferments. He would not be running for reelection in the fall. Richard Nixon would soon be elected president on a platform of a prompt, but honorable, end to the war. It was a volatile era during which peace symbols and antiwar slogans littered the landscape.

Paul Cohen’s jacket expressed his depth of feeling about the war. Painted in white on the dark material were several peace symbols, the message “Stop the War,” and, emblazoned on the back, the words “Fuck the Draft.” Today we might treat such words on a jacket or T-shirt with indifference, even if with a certain disdain, for we have become acclimated to them ... in movies, in humor, indeed in relatively polite conversation. But Cohen did not use the word “Fuck” in 1995;he used it, in public, in 1968; in the waning years of a more innocent time, before our senses went numb in the face of pervasive sex, violence, and rock and roll.

Paul Cohen did not go out that morning to participate in a protest against the Vietnam War but, instead, to testify as a witness for the defense in a case that had no bearing on the draft or the war. In fact, no judges heard draft cases at the Los Angeles County Courthouse since it was a state, not a federal, courthouse. But it was by any standards a large—indeed by most standards monstrous—courthouse, nine stories high, with around one hundred courtrooms.

After entering the courthouse building Cohen walked down a long corridor, perhaps a half block in length, to a bank of elevators. He rode an elevator to the seventh floor, where Division 20 was located. The courthouse was busy that morning and the potential audience for the jacket’s message numbered in the hundreds, including women and children. This was particularly the case on the seventh floor, for Division 20 was the main master calendar for all misdemeanors. Virtually all misdemeanors in the city, from traffic violations to loitering to petty theft and trespass and disturbing the peace, were tried there. According to Michael Sauer, the deputy city attorney for the City of Los Angeles who would handle Cohen’s case, “On a normal day, at any hour, there were probably 200 people there.”

Three police officers, Sergeant Shore, Sergeant Swan, and officer Alexander, spotted Cohen as he emerged from the elevator and walked down the wide corridor flanked by courtrooms. All of them noticed the jacket and its painted slogan “Fuck the Draft.” But before they could approach him, Cohen turned toward one of the courtrooms, removed his jacket, folded it over his arm so that the lettering was hidden from view, and then entered the courtroom in which he was to testify. One of the officers followed him into the courtroom. The officer approached the bench and, in hushed tones, told the judge about Cohen’s jacket, pointed him out, and asked the judge to hold Cohen in contempt of court. The judge refused.

When his business was completed, Cohen rose to leave. As he emerged through the doors of the courtroom into the busy corridor, the officers were awaiting him. They approached him immediately, confirmed that he had the jacket, and then arrested him for disturbing the peace by engaging in tumultuous and offensive behavior. We do not know whether he had put the jacket back on.

What Paul Cohen did on that April morning in 1968 had a profound but unanticipated influence on freedom of speech in the United States, an influence that would transcend his actions and even the antiwar protests of the Vietnam era, reaching forward nearly three decades to shape the way we think about free speech in today’s climate of hate speech, campus speech codes, and pornography—indeed, to alter the very meaning of “speech” protected by the First Amendment. But to fully understand these implications and their importance, we must turn to Cohen’s legal battle and the opinions of the courts in which it was waged.

Paul Cohen is someone about whom we learn virtually nothing in the course of the legal proceedings that followed his arrest. The further his case progressed, it seems, the less important he became to it. We know him only as “a young man.” We can assume, also, that he was deeply opposed to the Vietnam War and the draft. . . deeply enough, at least, to paint “Fuck the Draft” in bold letters on the back of his jacket and thus to display his passion to all who would see it. This, at least, was his claim from the very beginning: that in displaying the message in all its brutal frankness he was exercising his freedom of speech protected by the First Amendment. He wore the jacket, his lawyer asserted, to express the depth of his feelings about the war. But he wore it also because “he was somewhat chilly. ... he wasn’t there [in the Los Angeles Courthouse] to demonstrate or parade.”

Cohen’s trial was held in the Los Angeles County Courthouse, in a courtroom entered from the same corridor down which he had walked, displaying his jacket’s message. He was charged with disturbing the peace by offensive and tumultuous conduct, a misdemeanor punishable by a fine of up to $200 or imprisonment in the county jail for no more than ninety days. At the trial, the three police officers who arrested Cohen testified that they had seen him walking in the corridor of the courthouse wearing the jacket with the words “Fuck the Draft” prominently displayed on his back. No one else who had seen Cohen walking in the corridor that morning was called to the witness stand, and therefore no one else testified that he or she had seen the jacket or was offended by it. But the law Cohen violated, originally enacted in 1872, did not require such firsthand evidence of actual offense. His crime was violating the generally accepted standards of decency maintained by reasonable persons, whether any such persons were in fact present or, for that matter, offended.

Based essentially on these facts alone, and in the face of his claim that the jacket’s message was speech protected by the First Amendment, Cohen was convicted. The presiding judge, James Harvey Brown of the Municipal Court of Los Angeles, sentenced him to thirty days in the Los Angeles County Jail. Judge Brown, it seems, had little time for Cohen’s free speech claim, perhaps viewing Cohen’s act of wearing the jacket as mostly conduct and little speech. We cannot know Judge Brown’s views for certain because he wrote no opinion in the case, but the characterization of Cohen’s action as conduct and not speech was to haunt the case all the way to the Supreme Court.

Judge Brown, however, was not to have the last word, for Cohen was not prepared to accept his conviction, serve his sentence, and resume his life. Instead, he appealed his case to the California Court of Appeal, challenging the constitutionality of the California law under which he had been convicted. In visiting its restriction on speech that is “offensive and tumultuous,” he argued, the law punished speech simply because it was offensive and violated common standards of decency. Speech cannot be free under such a suffocating regime of government-imposed standards of taste and decency.

The appeals court, however, saw the case very differently. Cohen’s conduct, the court said, “consisted of more than a quiet and peaceful dissertation of his convictions about the draft.” In choosing “a courthouse corridor containing women and children” as a forum for his views, his purpose was not “to espouse a philosophy or a personal conviction” but to “shock,” to “attract[] the attention of others to his views by the sheer vulgarity of his expression,” and to “vex and annoy a substantial portion of his unwilling ‘audience.’” If there were limits to government’s authority to enforce standards of decency on speech, Cohen’s conduct did not exceed them. With Cohen’s free speech claim thus unceremoniously rejected, the appeals court affirmed his conviction. When Cohen thereafter appealed the Court of Appeal decision to the California Supreme Court, a court known for its active protection of First Amendment rights, that court declined even to review the case (though on a divided vote).

Cohen’s only remaining option was an appeal to the United States Supreme Court. His chances were slim; of the nearly 5,000 cases filed with the Supreme Court each year, the Court accepts only 150 to 200 for review. But even though the odds were heavily against him, and notwithstanding the sweeping rejection of his free speech claim in the California courts, he took his case to the United States Supreme Court. And there fortune turned in his favor. In an order that must have surprised even Cohen, the Court accepted the case for review and set it down for oral argument on February 22, 1971.

At first blush Cohen’s case seemed straightforward: a simple, if controversial, claim that his highly charged and offensive rhetoric could not be prohibited because the Constitution guaranteed his freedom to use it. But when his case came up for oral argument before the full Court, it became clear that Cohen’s apparently inconsequential and straightforward case was, in fact, very complicated. The complexities emerged in the drama of the oral argument that took place in the Supreme Court Building in Washington, D.C.

Oral argument before the Supreme Court is a bracing experience for a lawyer. Walking up the dozens of steps leading to the grand entrance of the building—a building dubbed, by some, the marble palace—entering through the huge doors, proceeding down the wide and long marble corridor flanked by marble statues and columns rising nearly fifty feet to the ornate ceiling, the lawyer feels the seriousness and high politics that the majestic building signifies. Inside voices and footsteps reverberate in and around the damp chill of the white marble corridor as the lawyer walks toward the dark wood doors of the courtroom.

The courtroom imposes its authority even before the oral argument begins, encouraging the lawyer to reevaluate his or her sense of worth. The room is nearly three stories high, ringed with marble columns, and the ceiling is painted with frescos and bordered with friezes. The raised banc, behind which the justices sit, looms high and dominates the front of the courtroom. The lawyer’s podium beneath it seems to be a miniature representation by comparison. It is from this podium, looking up at the justices, that the lawyer pleads the client’s case, knowing that each argument may be interrupted with lightning-quick questions posed by the justices. In midsentence of a lawyer’s well-prepared argument the relentless questions will come, sometimes in no particular order, often with apparent serendipity, but always, the lawyer knows, with a purpose that pierces to the heart of the case. The physical effect is chilling; the psychological effect is unnerving.

On the day that Cohen’s case was argued, the nine black-robed justices who occupied the high-backed leather chairs behind the banc still matched the description “Nine Old Men.” None of the justices was under fifty years of age, and most were in their sixties and seventies. In terms of years of service on the Court this was a particularly experienced and wise group. Only Justice Harry Blackmun and Chief Justice Warren Burger were new to the Court.

Chief Justice Earl Warren, who had led the Supreme Court through a remarkable period of judicial activism in the 1950s and 1960s, had resigned two years earlier. But in most respects the Court remained the “Warren Court,” its membership still dominated by those justices who had served under Warren. These Warren Court justices included William O. Douglas and Hugo Black, both widely recognized as First Amendment absolutists. When the First Amendment says, “Congress shall make no law . . . abridging the freedom of speech,” Hugo Black had said, it means “No Law!”

William Brennan a...