Yes, thank God, when it comes to free speech (as well as other constitutional rights and liberties), that the Court has NOT strictly interpreted the Constitution (but instead has done so rather "loosely"). That the Court has NOT applied the letter of the law (but instead has applied its spirit). That the Court has NOT limited itself to some specific original meaning (but instead has given life to underlying principles).
That the Court has NOT been restrained (but instead has been activist in protecting free speech). That the Court has NOT deferred to the other branches (but instead has been more than willing to invalidate legislative encroachments). That the Court has NOT mechanically applied the law (but instead has revised and, yes, made law to insure that it both makes sense and is faithful to our national commitment to free expression).
In sum, thank God that the Supreme Court has NOT heeded the incessant blather from many politicians and from some of the Justices themselves about strict interpretation, literal interpretation, original meaning, judicial restraint, simply applying the law, etc., etc., etc. (Or is it blah, blah, blah?) That instead, the Court has generally exercised judgment. Yes, judgment. That's what judges ought to do.
And that is what the Court has generally done. Especially in seeking to balance the need for order and security with the essential elements of a free society--including, of course, free speech. Instead of abiding by some rigid interpretive method, the Court has by and large sought to uphold what is, in Benjamin Cardozo's venerable words, "implicit in the concept of ordered liberty."
More specifically, with regard to the 1st Amendment, the Court has NOT strictly interpreted the command that there be "no law" abridging free speech. The Court has, instead, understood that some laws abridging some speech are obviously necessary for the order and security that makes a free society possible. (For example, as we've previously discussed, laws punishing falsely shouting fire in a crowded theater, or a soldier saying "F_ you" in response to a General's order, etc. See Supreme Court: Right on the Funeral Protests, March 7, 2011.)
So, for the "order" side of "ordered liberty," it certainly seems that "no law" abridging free speech must be interpreted as "no law except when really necessary." Likewise, to insure the "liberty" side of "ordered liberty," it certainly seems that free "speech" must be interpreted as free "speech and equivalent forms of expression." A narrower, more cramped, literalistic application of "speech" would be far too confining for a free society and much less faithful to the principles and ideals underlying the 1st Amendment.
Indeed, the broader interpretation of "speech" is what the Court has traditionally employed. It is the interpretation that the Court has employed in deciding many of its most cherished landmarks. To be sure, it is also the interpretation that the Court has employed in reaching some very controversial (i.e., unpopular) decisions--such as the recent one in Snyder v. Phelps, the funeral protest case.
Consider some of the following landmark free "speech" decisions:
- Peaceful labor picketing, protected as free discussion. Thornhill v. Alabama. 1940.
- Refusal to salute the flag on religious grounds, protected as free speech. West Va. v. Barnette, 1943.
- Membership in a civil rights organization, protected as expressive association. NAACP v. Alabama, 1958.
- Litigation by a civil rights organization, protected as political expression. NAACP v. Burton, 1963.
- Wearing a black armband as an anti-war protest, protected as "akin" to speech. Tinker v. Des Moines Sch. Dist., 1968.
- Covering the state motto, "Live Free or Die," on a vehicle license plate on moral and religious grounds, protected as free speech. Wooley v. Maynard, 1977.
- Picketing and leafleting on the sidewalks around the Supreme Court, protected as free speech. U.S. v. Grace, 1983.
- Displaying political signs on home property, protected as free speech. City of Ladue v. Gilleo, 1994.
- Wearing a jacket bearing the words "F_ the Draft" in protest of military conscription, protected as free speech. Cohen v. California. 1971.
- Nazi's marching in a predominantly Jewish neighborhood, protected as free speech. National Socialist Party of America v. Village of Skokie. 1977.
- Burning the American flag, protected as free speech. Texas v. Johnson, 1989.
- Pro-life picketing of an abortion clinic that does not interfere with the patients or with the clinic's work, protected as free speech. Madsen v. Women's Health Center, 1994..
- Organizing a parade that excludes participation by a gay and lesbian group, protected as an inherently expressive activity. Hurley v. Irish-American GLB Group of Boston. 1995.
- Denying membership in a private organization on the basis of sexual orientation considered contrary to the organization's values, protected as expressive association. Boy Scouts of America v. Dale. 2000.
- Corporate spending on political communications, protected as free speech. Citizens United v. F.E.C.. 2010.
Every one of these free speech cases involved something other than actual speech. They all involved conduct. Activity. Some form of expression that went beyond mere speaking. Picketing, marching, parading, displaying signs, refusing to salute the flag or to display the state motto, wearing an armband or a jacket with a message, joining an organization and denying membership to others, burning the flag, spending money on political ads, etc., etc., etc.
No doubt, some of us agree with some of these decisions and disagree with others. Certainly, we disagree amongst ourselves about which decisions were correct and which not. About which decisions we applaud and which we deplore. Probably very few of us agree with all these decisions. [I certainly do not.]
Ideologically speaking, liberals generally favor some of these decisions, but not others. Conservatives too. So-called centrists or moderates no doubt likewise agree with some and not others--if perhaps somewhat less predictably. But the ideological content of most of these decisions can hardly be denied.
Let's consider these decisions in that light. With regard to most of them, it's pretty easy to identify those with which liberals mostly agree, and those with which conservatives do.
E.g., labor picketing, anti-war armbands, burning the flag, membership in a civil rights organization--liberals would generally agree that these should be protected as free speech. Pro-life picketing at an abortion clinic, excluding gay and lesbian groups from a parade, excluding a gays from the Boy Scouts, corporate spending on political ads--conservatives generally favor protecting these as free speech.
Now let's just stop and think about that for one last minute. The ideological agreement and disagreement in these cases has not a whit to do with strict or loose interpretation. Not a whit to do with literalism or originalism. Not a whit to do with a restrained deference to the other branches or to state or local lawmakers. Not a whit to do with whether actual "speech" was involved, or whether it was some non-verbal activity or conduct engaged in for an expressive purpose. In fact, again, none of those decisions involved "speech"--i.e., verbal expression. Rather, they all involved activity or conduct with expressive content.
So, in the funeral protest case--Snyder v. Phelps--it made no difference to the Supreme Court's decision that the Westboro Church was engaged in expressive activity (picketing and demonstrating) as opposed to actual "speech." No. Neither the conservative Justices nor the liberal ones were concerned that activity or conduct rather than pure speech was involved.
No strict interpreters of the 1st Amendment there. No literalists. No one (other than dissenter Justice Alito) concerned about being restrained and deferring to the state law which allowed the lawsuit and liability against the Westboro Church for its funeral protest. No, none of that is what the case was about at all.
In fact, the same is true for the other free speech cases. The conservatives don't pay much attention to speech versus activity, to strict interpretation or literalism or originalism or restraint when the case involves conservative-favored expressive activity. Campaign spending by corporations. Excluding gays from a parade or the Boy Scouts. Picketing an abortion clinic. No. Conservatives want those protected as free "speech." And out the window with all the protestations against loose interpretation, judicial activism, etc., etc., etc., ad nauseam. Justices and politicians--little difference on that.
And to be fair, the same for the liberals. In decisions favored by the conservatives, the liberals often decry the conservatives' stretching the limits of "speech." Corporate spending on political ads and excluding gays from the Boy Scouts, for example. But in other cases, they don't hesitate to stretch "speech" to encompass the widest variety of expressive activity. Labor picketing. Refusal to salute the flag. Burning the flag. Membership in a civil rights organization. No. Can't restrict free "speech" to speech in those cases.
So back to the funeral protest case. The picketing and the demonstration by the Westboro Church fall well within the concept of free "speech" that the Court--i.e., both liberal and conservative Justices--has traditionally protected under the 1st Amendment. No, the picketing and the demonstration do not constitute pure "speech." But they do constitute the sort of expressive activity that the Court has consistently protected under the 1st Amendment.
This is so despite the frequent disagreement among the Justices in particular cases. That disagreement is typically based on ideological opposition to the expressive activity involved. It is rarely based on any strict, literalistic, restrained notion that constitutionally protected free "speech" is limited to actual speech.
One more point. None of this means that "speech"--whether actual speech or expressive activity--is absolutely protected. None of this means that the 1st Amendment disallows the prohibition, punishment, or liability for any "speech" regardless of the harm it might cause.
No. Recall that "no law abridging" free speech has never been interpreted strictly or literally. "No law" has been viewed by the Court as meaning "no law except when really necessary." And when really necessary to maintain the order and security essential to a free society, the Court has permitted laws restricting free speech--again, whether actual speech or expressive activity. In the funeral protest case, however, the Court found no such justification for abridging the "speech" involved.
More on this, and on the permissibility of restrictions on free speech generally, will be discussed in the next and final post in this series.
