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Home > Publications > Quill > When Bad is Good: 10 Improbable Champions of the First Amendment



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Friday, December 2, 2011
When Bad is Good: 10 Improbable Champions of the First Amendment

By George Padgett

What do an American Nazi, a pornographer and a homophobic Baptist minister have in common? A racist, anti-Semitic publisher? A flag-burning anarchist? A Communist Labor Party organizer?

They are among society’s misfits and hated targets of both the right and left. They are champions of the First Amendment. Disdained heroes. Their stories demonstrate the extreme challenge of living in and maintaining a democratic society. As Molly Ivins once said, “The thing about democracy, beloveds, is that it is not neat, orderly or quiet.”

They testify to the wisdom of the Founding Fathers in creating a judiciary separate from the election process, as it is likely that had these decisions been put to the will of the voting majority, the results would have been very different.

Journalists and all citizens would be well-served to understand how these cases came to be, and how their outcomes have shaped the nature of all freedoms guaranteed by the First Amendment, particularly of speech and of the press.

1. Frank Collin: Village of Skokie v. National Socialist Party, 1977

Frank Collin and the National Socialist Party (split from George Lincoln Rockwell’s National-Socialist White People’s Party) were relatively unknown until 1977 when Collin notified the town of Skokie, Ill. ― a largely Jewish community with a significant number of Holocaust survivors ― of his intent to stage a peaceful march. In response, town officials passed parade ordinances: (1) requiring a $350,000 bond; (2) preventing the distribution of printed material; and (3) prohibiting military-style uniforms.

Represented by the ACLU, Collin survived a lengthy series of court decisions, eventually winning the right to march in Skokie, thus upholding the freedom to speak even for those held in disdain. Federal Judge Bernard Decker wrote: “It is better to allow those who preach racial hatred to expend their venom in rhetoric rather than be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.”

In the end, Collin won the right to march in Skokie, but never did. Instead, his band of misfits paraded in Marquette Park surrounded by several hundred Chicago police officers, protecting them from thousands of anti-Nazi protestors.

2. Gregory Lee (Joey) Johnson: Texas v. Johnson , 1989

There are few American icons held in more reverence than the U.S. flag. It is not surprising, then, that when Gregory Lee Johnson doused Old Glory with kerosene and set it ablaze during the 1984 Republican Convention, he ignited a legal battle that stretched through two Supreme Court decisions, a federal Flag Protection Act and numerous failed attempts at a constitutional amendment.

A member of the Revolutionary Communist Youth Brigade, Johnson and his co-demonstrators were protesting policies of the Reagan administration when they burned the flag, in violation of Texas law, while chanting “America, the red, white, and blue, we spit on you.”

Johnson was sentenced to a year in prison and a $2,000 fine. He lost an appeal in a Texas court but won a 5-4 Supreme Court decision upholding his right to burn the American flag as protected expressive conduct.

In the majority opinion William Brennan wrote, “If there is a bedrock principle of 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.” The decision was followed quickly by passage of the federal Flag Protection Act, making it a crime to “mutilate, deface, physically defile, [or] burn” a flag.

Shawn Eichman immediately burned a flag on the Capitol steps in Washington, D.C., as did Mark Haggerty in Seattle. Johnson participated in the Capitol flag burning but was not arrested. In companion cases U.S. v. Haggerty and U.S. v. Eichman, the Supreme Court ruled the Flag Protect Act an unconstitutional infringement on freedom of expression.

3. Paul Cohen: Cohen v. California, 1971

Comedian/social commentator Lenny Bruce was famously quoted as saying, “Take away the right to say ‘fuck’ and you take away the right to say ‘fuck the government.’” Despite the sentiment, even the least prudish among us shift nervously when we hear it spoken in a public venue. Little wonder eyebrows raised collectively when 19-year-old Paul Cohen strolled through the Los Angeles County Courthouse wearing a jacket bearing the words “Fuck the Draft,” publicly serving notice of his opposition to the Vietnam War.

Cohen was convicted of violating California law prohibiting “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.” He was sentenced to 30 days in jail, and the conviction was upheld by a California Court of Appeals, declined by the California Supreme Court and accepted by the U.S. Supreme Court.

Writing for the majority, Chief Justice John Harlan provided an inventory of regulatory rationales that did NOT apply in this case. He first determined that Cohen did not “commit or threaten to commit any act of violence,” did not “make any loud or unusual noise” and had not shown “an intent to incite disobedience or disruption of the draft.” Additionally, Harlan dismissed “obscenity,” “fighting words” and “invasion of privacy.” The 5-4 majority ruled that absent compelling reason, the state may not make the public display of this single four-letter expletive a criminal offense.

The take-away quote from Harlan: “While the four-letter word litigated here is perhaps more distasteful than most others ... it is nevertheless often true that one man’s vulgarity is another’s lyric.”

4. Clarence Brandenburg: Brandenburg v. Ohio, 1969

KKK leader Clarence Brandenburg was convicted under Ohio Criminal Syndicalism law for threatening statements made at a Klan rally in Hamilton County, Ohio.

Brandenburg’s offense consisted of language in a film recorded at the rally: “If our president, our Congress, our Supreme Court, continue to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The law under which he was convicted forbade advocating “sabotage, violence or unlawful methods of terrorism.” He was fined $1,000 and sentenced to one to 10 years imprisonment.

Subsequently, he challenged the constitutionality of the statute under the First and Fourteenth Amendments, eventually advancing to the Supreme Court. In a per curiam decision, the court ruled, “the constitutional guarantees of free speech and free press do not permit a State to forbid ... advocacy of the use of force except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Justice William O. Douglas’ concurrence best enunciated the principle that stands today: “... matters of belief are beyond the reach of subpoenas or the probings of investigators. The line between what is permissible and not subject to control and what may be impermissible and subject to regulation is the line between ideas and overt acts.”

5. Larry Flynt: Hustler Magazine v. Falwell, 1988

Larry Flynt has survived a series of obscenity trials, imprisonment and even an attempt on his life that left him paralyzed, but he maintains it was all a part of his struggle to protect the First Amendment.

Flynt’s most contentious legal battle culminated in 1988 with the Supreme Court decision in Hustler v. Falwell. The case originated in 1983 when Hustler published a parody based on a series of Campari Liqueur ads featuring celebrities talking about their “first time.” The ad parody in question featured nationally known conservative minister Jerry Falwell.

In the parody, an interviewer asks Falwell about his first time. “My first time was in an outhouse outside Lynchburg, Virginia,” he answers. “I never really expected to make it with Mom, but after she showed all the other guys in town a good time, I figured, ‘What the hell!’” Falwell sued Hustler for invasion of privacy, libel and intentional infliction of emotional distress.

Although the libel and privacy claims were dismissed, he was awarded $200,000 in damages for intentional infliction of emotional distress. The U.S. Court of Appeals affirmed, and the Supreme Court granted certiorari.

Writing for a unanimous court, Chief Justice William Rehnquist said, “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty ... but also essential to the common quest for truth.”

The court ruled that “public figures and public officials may not recover for intentional infliction of emotional distress without showing that the publication contains a false statement of fact made with actual malice.”

6. Joseph Frederick: Morse v. Frederick, 2007

Joseph Frederick represents generations of idealistic youth who have stepped out of their comfort zones to pursue the cause of free expression. In him can be sensed the shadows of John and Mary Beth Tinker, Matthew Fraser, David Paul O’Brien, Cathy Kuhlmeier, Bretton Barber and many others.

Frederick was 18 in 2002 when the Olympic torch passed through Juneau, Alaska. He and a group of high school classmates held up a 14-foot banner with the slogan “Bong Hits 4 Jesus.” Principal Deborah Morse demanded the students take down the sign. Frederick alone refused and was suspended for 10 days, with an additional five days for paraphrasing Jefferson that “speech limited is speech lost.” The superintendent and local school board upheld the suspension, citing policy banning drug advocacy.

A district court sided with the school and the 9th Circuit Court of Appeals reversed, noting that the school had not shown substantial disruption as required in Tinker v. Des Moines.

The U.S. Supreme Court granted certiorari, and in an opinion by Chief Justice John Roberts ruled that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

The court emphasized three points: (1) In spite of the fact that Frederick was physically off school grounds, his presence was part of an approved school activity and therefore subject to student-conduct rules; (2) The banner could be interpreted as promoting illegal drug use; and (3) A principal may, consistent with the First Amendment, restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

7. Harry Bridges: Bridges v. California, 1941.

Founder of the International Longshoremen’s Union, Harry Bridges was a union organizer, an alleged communist and a ruthless negotiator. Of the improbable champions of the First Amendment, Bridges may be the most renowned. Not only does he have an institute named after him, he is the subject of a 501(c)(3) non-profit organization, the Harry Bridges Project, “dedicated to introducing the public to his life and ideas.”

In spite of Bridges’ profound effect on the American labor movement over a period of 40 years, he was conspicuously involved in controversy for most of that time. On three occasions, the U.S. government attempted to associate him with the communist party and have him deported.

The 1941 case resulted from a telegram Bridges sent the U.S. secretary of labor regarding a court decision involving a dispute between two labor unions. Bridges called the judge’s decision “outrageous” and threatened to call a strike that would tie up the port of Los Angeles. He was cited for contempt. The Superior Court and the California Supreme Court affirmed, asserting that the threats constituted coercion and intimidation. The U.S. Supreme Court granted certiorari.

Justice Hugo Black, writing for a 5-4 majority, cited Schenck v. U.S. and subsequent cases involving clear and present danger of substantive evil, and noted that the Bridges telegram was absent the seriousness and imminence required. Reversing the California courts, Black wrote: “We find exaggeration in the conclusion that the utterance even ‘tended’ to interfere with justice.”

First Amendment scholar Anthony Lewis cites the Bridges case as a turning point in constitutional history, saying, “The majority opinion in the Bridges case was a declaration of independence from the English legal tradition” characterized by “the power of judges to punish outside comment on matters pending in their courts.”

8. Jay Near: Near v. Minnesota, 1931

Set in an era of 1920s Minnesota lawlessness, the Near case is the stuff of racy crime novels and gangster-laden film noir. Minneapolis was a strategic location for the import of illegal whiskey from Canada during prohibition, giving rise to rampant mobster activity.

Enter Jay Near and his partner Howard Guilford. In the Minnesota Rag, Fred Friendly wrote, “Together they practiced a brand of journalism that teetered on the edge of legality and often toppled over the limits of propriety.” Friendly described Near as “anti-Catholic, anti-Semitic, anti-black and anti-labor.”

Near reported regularly on political corruption in Minneapolis and St. Paul with stories of bootleggers, gamblers, prostitution and the city officials who, he claimed, allowed them to ply their trades.

Near’s penchant for linking elected officials with “Jewish gangsters” eventually brought the Saturday Press into conflict with the Minnesota Public Nuisance law, which prevented the publication of “malicious, scandalous and defamatory” newspapers.

An order issued in 1927 silenced the Saturday Press. When the Minnesota Supreme Court upheld the validity of the law, Near filed papers claiming the articles in question were not “malicious, scandalous or defamatory.” He lost in a state district court and in Minnesota’s Supreme Court. The U.S. Supreme Court granted certiorari.

The ensuing 5-4 decision written by Chief Justice Charles Evans Hughes is one of the most important First Amendment cases ever decided, effectively eliminating the threat of prior restraint except in select and extreme circumstances.

Hughes cited William Blackstone, “Liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication”; and James Madison, “freedom of the press requires that it should be exempt not only from previous restraint by the executive, but from legislative restraint also.”

9. Fred Phelps: Snyder v. Phelps, 2011

The most contemporary of the improbable champions, Fred Phelps also is the only one of the rogue characters to be scorned on Facebook. The day following the U.S. Supreme Court’s 8-1 decision upholding the Westboro Baptist Church’s right to publicly display their homophobic psychosis at military funerals, social media attacked with a vengeance.

Consider this comment from a thread on Facebook: “The sad thing is they are protesting at the funeral of a person who died for the very freedom that gives them the right to protest.”

Phelps and his daughter Shirley Roper head the Westboro Baptist Church in Topeka, Kan. He is a disbarred attorney, his daughter a practicing, politically activist attorney. They are best known for their homophobic rants and protests at military funerals. The gist of their message is that America’s increasing acceptance of gay rights condemns it to suffer extreme consequences. The deaths of soldiers in Afghanistan and Iraq, for example, result from God’s vengeance on America for going easy on homosexuality.

They show up at funerals, displaying signs with slogans like “God Hates Fags,” “God Hates America,” “Thank God for Dead Soldiers” and “Thank God for 9/11.” They also protest the funerals of celebrities and well-known political figures. When they announced plans to protest the funeral of former North Carolina Sen. John Edwards’ wife Elizabeth, they displayed a sign that read, “Thank God for Breast Cancer.”

Snyder v. Phelps was precipitated by the church’s demonstration at the funeral of Marine Lance Cpl. Matthew Snyder. The soldier’s family charged Phelps with defamation, invasion of privacy and intentional infliction of emotional distress. [Editor’s Note: The Society of Professional Journalists joined an amicus brief supporting Phelps’ free speech claim on the grounds of the case’s broad implications on press and speech rights.]

The U.S. District Court awarded the family $5 million, but the U.S. Court of Appeals for the Fourth Circuit reversed on First Amendment grounds. The U.S. Supreme Court granted certiorari.

In an 8-1 majority opinion, Chief Justice Roberts noted Westboro had made known its intent to picket and that the picket was staged 1,000 feet from the funeral service. In fact, plaintiff Albert Snyder, the soldier’s father, had seen only the tops of the signs and did not know the nature of their content until later.

In ruling for Westboro, Roberts concluded: “Speech is powerful. It can stir people to action, move them to tears or ... inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen to protect even hurtful speech ... to ensure that we do not stifle public debate.”

10. Anita Whitney: Whitney v. California, 1927

Representative of one of the most significant periods in the development of free speech, Whitney is one in a series of cases that chronicle a philosophical change in the majority view of the U.S. Supreme Court, spurred by the opinions of Justices Louis Brandeis and Oliver Wendell Holmes Jr.

Anita Whitney, a founding member of the Communist Labor Party in California, was convicted under the California Criminal Syndicalism Act, which made it a felony to participate in any organization directed at effecting change “in industrial ownership or control, or effecting any political change.”

While concurring with the court’s affirmation of the Syndicalism Act, Brandeis returned to the “clear and present danger” test he had first enunciated in the Schenck case. “Fear of serious injury cannot alone justify suppression of free speech and assembly,” he wrote. “There must be reasonable ground to fear that serious evil will result if free speech is practiced ... that the danger is imminent ... and that the evil to be prevented is a serious one.”

It was here too that Brandeis made the distinction between advocacy of ideas and incitement to action, stating that mere advocacy did not constitute a clear and present danger.

The American Spirit

Whitney and the nine other individuals profiled here demonstrate the American spirit. Communists, pornographers, anarchists, hate-mongers and overzealous youth they may be, but it is because of their persistence (and that of others like them) in overcoming society’s contempt that the freedoms we enjoy remain intact. While it may be predictable and understandable to chastise the likes of Phelps, Flynt and Johnson for what they do and say, their contributions to the enduring right of free expression stand among the most remarkable accomplishments of the ongoing American experiment with democracy.

George Padgett teaches media law and ethics in the School of Communications at Elon University in North Carolina. Reach him at padgettg@elon.edu.

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