Wednesday, April 20, 2011

UNPROTECTED "SPEECH"--Supreme Court: Right on the Funeral Protests, Part 3

[Been swamped with other matters since the last post. Among those of possible interest to the readers of New York Court Watcher is the Center for Judicial Process. The now reorganized and reactivated Center, accessible through the link on this blog or directly at, is a forum for research and the publication of studies on courts, judges, judicial decision-making, judicial politics and selection, and all other aspects of the judicial process. Check it out!]

In the last post, we listed several examples of free speech that the Supreme Court has decided are constitutionally protected. Let's reconsider those cases by altering them a bit. The alteration will change the speech from protected to unprotected.

In fact, none of those cases dealt with actual "speech." Instead, they involved activities. But they were expressive activities. Those activities were deemed sufficiently close to actual speech to be included within the 1st Amendment's protection. In short, these activities were considered to be functional equivalents of speech. They were engaged in for the purpose of expressing opinions. The very purpose of the speech that the 1st Amendment was intended to protect.

So, as we've discussed in previous posts, the critical distinction is not between pure speech and activity. The former protected and the latter not. No. It's not about the mere form that the expression takes. Lots of different forms of expression have been deemed by the Supreme Court to be constitutionally immune from government prohibition. Speech itself, marches, parades, memberships, signs, arm bands, billboards, commercials, campaign spending, etc., etc., etc.

But there certainly are distinctions between those expressive activities that the Supreme Court has held to be constitutionally protected and those that are not. Yes, there are differences between protected "speech" and unprotected "speech."

So yes, let's reconsider those free speech decisions from the last post. The expressive activities in those cases were all held to be constitutionally protected as the functional equivalents of speech. We'll alter the activity in each case a bit. It will still be expressive activity. But with the alteration, it will be clear that the activity would NOT be protected under the 1st Amendment.

The critical distinction or distinctions between the expressive activities that are protected and those that are not will also be clear. Certainly, there are some very close free speech cases. But the differences between protected and unprotected expressive activities are clear when we consider the clearly unprotected ones. So let's reconsider those free speech cases and see what's so clear.

First, the landmark free speech decisions we listed in the last post:
  • Peaceful labor picketing, protected as free discussion. Thornhill v. Alabama. 1940.
    • But roughing up "scabs" to make the same point would not be protected.
  • Refusal to salute the flag on religious grounds, protected as free speech. West Va. v. Barnette, 1943.
    • But removing flags to prevent others from violating God's law would not be protected.
  • Membership in a civil rights organization, protected as expressive association. NAACP v. Alabama, 1958.
    • Membership in an organization devoted to assassinating civil rights leaders, not protected.
  • Litigation by a civil rights organization, protected as political expression. NAACP v. Burton, 1963.
    • Frivolous litigation to harass a civil rights organization, not protected.
  • Wearing a black armband as an anti-war protest, protected as "akin" to speech. Tinker v. Des Moines Sch. Dist., 1968.
    • Raising a big black curtain that prevents attendees from watching the same graduation ceremonies in that case, not protected.
  • 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. 
    • Refusing to have a license plate to protest the disliked colors, not protected.
  • Picketing and leafleting on the sidewalks around the Supreme Court, protected as free speech. U.S. v. Grace, 1983. 
    • Blocking the entrance to the Court to make the same point, not protected.
  • Displaying political signs on home property, protected as free speech. City of Ladue v. Gilleo, 1994.
    • Removing others' political signs from their property, not protected.
Now let's reconsider the other previously listed, more controversial decisions:
  • Wearing a jacket bearing the words "F_ the Draft" in protest of military conscription, protected as free speech. Cohen v. California. 1971. 
    • Loudly chanting "F_ the Draft" in the same courthouse in that case, not protected.
  • Nazi's marching in a predominantly Jewish neighborhood, protected as free speech. National Socialist Party of America v. Village of Skokie. 1977. 
    • Nazi's spray painting swastika's on private or public property in the same neighborhood, not protected.
  • Burning the American flag, protected as free speech. Texas v. Johnson, 1989. 
    • Setting one's own building ablaze after painting a huge American flag on on it, not protected.
  • 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. 
    • Pro-life "citizen's arrest" of the physicians who "murder the unborn," not protected.
  • 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. 
    • Organizing an 'Anti-Homosexual" parade for the purpose of placing gays and lesbians in fear for their safety, not protected.
  • 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.
    • Denying emergency health care in a private hospital based on sexual orientation, not protected.
  • Corporate spending on political communications, protected as free speech. Citizens United v. F.E.C.. 2010. 
    • Corporate payments to a politician to vote a certain way, not protected.
Well, there they are. The protected free speech decisions, and the alterations that transform the expressive activities to unprotected. A few points emerge that are pretty clear.

Again, at the risk of repeating this ad nauseam, a literal, "strict interpretation," "judicially restrained" view of  the 1st Amendment's protection of "freedom of speech" has nothing to do with it. None of the foregoing, protected or unprotected is speech. It's all activity. It's activity that expresses.

What also has nothing to do with the difference between protected and unprotected speech or expressive activity is whether the opinion being expressed--i.e., the content--is popular or unpopular. Whether a majority agree with it or not, like it or not, hate it or not, find it unpatriotic or not, unpleasant or not, blasphemous or heretical or not, etc., etc. Indeed, the unpopular, disliked, hated, unpatriotic, unpleasant, heretical, etc., are precisely the type of speech and expressive activity that needs protection.

So what does make a difference? What are the common threads separating protected "speech" from the unprotected?

Well, is the speech or expressive activity merely unpopular, disliked, unpleasant, heretical, etc? That is, is the message being conveyed merely unpopular, disliked, unpleasant, heretical, etc? Then it's protected.

Or does the speech or expressive activity actually injure others or their property? Actually prevent or significantly interfere with others exercising their rights? Actually threaten others' health or safety or welfare--i.e., not mere conjecture or speculation? Actually threaten societal order, government operation, national security, and the like--i.e., again, not mere conjecture or speculation? If any of that, or any actual harm or serious risk of harm of that sort, then the "speech" can almost certainly be restricted or even prohibited outright.

Serious, significant, real injury or danger to health, safety, welfare or security, actually caused by the speech or expressive activity, will almost surely render it unprotected. Absent such serious, significant, real etc., etc., the speech or expressive activity will almost surely be constitutionally protected.

So to end this series where we began, how does the funeral protest of the Westboro Baptist Church fit in? The protesters kept their distance from the funeral. They did not interfere, either physically or aurally. In fact, not even visually--the protest couldn't be seen from the funeral. The plaintiff in the case only saw the protest on TV subsequently. Moreover, there was obviously no threat to health or safety or welfare or security.

Despicable? Yes. Hateful? Yes. Moronic? Yes. Unpleasant? Yes. Add your own favorite adjective for something worthy of contempt and scorn and condemnation. Yes.

But falling into any clear category of unprotected speech? No. Even, perhaps, falling into some new category of unprotected speech that wouldn't dangerously undermine the 1st Amendment protection of speech that should be protected? No. I at least, don't see it.

And 8 of the 9 Justices didn't see it either in the funeral protest case. That does not, of course, mean that the Justices and I are right. Most certainly not. My God, they--and I--are wrong far too frequently. But one thing is for sure. Or for pretty sure. The differences separating protected from unprotected speech do favor the conclusion that the funeral protest is entitled to 1st Amendment protection.