TheFirstAmendment
Civilrightsinwar.me
TheFirstAmendment:
Congressshallmakenolawrespec8nganestablishmentofreligion,orprohibi8ngthe
freeexercisethereof;orabridgingthefreedomofspeech,orofthepress;ortherightof
thepeoplepeaceablytoassemble,andtope88onthegovernmentforaredressof
grievances.
There were two earlier drafts of the Amendment:
•  The people shall not be deprived or abridged of their right to speak, to
write, or to publish their sentiments; and the freedom of the press, as one
of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and
consulting for their common good, nor from applying to the legislature by
petitions, or remonstrances for redress of their grievances.
•  No state shall violate the equal rights of conscience, or the freedom of the
press, or the trial by jury in criminal cases.
In backing his amendment, Madison warned against the tyranny of the majority:
The prescriptions in favor of liberty, ought to be levelled against that
quarter where the greatest danger lies, namely, that which possesses the
highest prerogative of power: But this [is] not found in either the executive
or legislative departments of government, but in the body of the people,
operating by the majority against the minority. [emphasis added]
[Congressional Register, I, 423-37 and Gazette of the US., 10 and 13 June 1789]
It took a while for the First Amendment to start working for the minority; in fact,
it took a while before the First Amendment was interpreted by the courts at all.
The Connecticut Gazette. September 4, 1789 (Vol. XXVI, no. 1347). NewLondon, Connecticut.
William Blackstone’s legal commentaries greatly influenced the Framers. Here’s
Blackstone on freedom of speech and the press (note the exceptions to
protected speech):
Every freeman has an undoubted right to lay what sentiments he pleases
before the public; to forbid this, is to destroy the freedom of the press: but if
he publishes what is improper, mischievous, or illegal, he must take the
consequences of his own temerity. To subject the press to the restrictive
power of a licenser, as was formerly done . . . is to subject all freedom of
sentiment to the prejudices of one man, and make him the arbitrary and
infallible judge of all controverted points in learning, religion and
government. But to punish as the law does at present any dangerous or
offensive writings, which, when published, shall on a fair and impartial trial
be adjudged of a pernicious tendency, is necessary for the preservation of
peace and good order, of government and religion, the only solid
foundations of civil liberty. Thus, the will of individuals is still left free: the
abuse only of that free will is the object of legal punishment. . . .
Neither is any restraint hereby laid upon freedom of thought or inquiry;
liberty of private sentiment is still left; the disseminating, or making public,
of bad sentiments, destructive to the ends of society, is the crime which
society corrects.
The First Amendment protects speech, but this is not an absolute protection.
Justice Oliver Wendell Holmes wrote,
The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic.
Schenck v. United States (1919)
Some speech is strongly protected: political speech; religious speech
Some speech is not protected: fighting words, obscenity, treason
Some speakers are strongly protected: the press, the politician
Some speakers are only partially protected: students, prisoners,
advertisers
These distinctions and exceptions are not elaborated in the Amendment itself.
Where do they come from?
There were no significant Supreme Court tests of the First Amendment
until the period after World War I, when the First Amendment was raised,
and rejected, as a defense of antiwar speech during wartime.
Since then, though, the Court has strongly defended the First
Amendment, though its understanding of what language the Amendment
protects and what is not protected still shifts from time to time.
Once cases started to appear, in the early 20th century, the justices of the
Supreme Court have taken three kinds of positions toward it:
•  absolutist
•  categorical
•  balancing
1.  Absolutists: The Amendment’s proscription, “shall make no law,”
means what it says, no law.
[Even here there are limits, though, and absolutists distinguish
between speech and action—action is not protected (burning flags
and draft cards, for example)]
2.  Categorical: speech is protected or unprotected depending on the kind,
or category: political speech, obscene speech, fighting words,
commercial speech
3.  Balancing: the individual’s interest in free expression is weighed
against the government’s interest in restricting the speech in question;
the presumption should be in favor of free expression—there is a
thumb on that side of the scale—which can only be overcome with a
showing of an especially strong governmental interest.
Balancing often becomes an issue in times of national emergency.
For the first century, the First Amendment remained either
uncontroversial or unenforced.
Its existence did not prevent the passage of the Alien and Sedition
Acts in 1798, or similar sedition acts in 1917-18.
The Alien and Sedition Acts were promoted by the Adams
administration, and sought to protect the new nation from fallout from
the French Revolution.
In effect, though, they were used against critics of the Adams
government.
The Sedition Act of 1798 specifically restricts speech and writing:
if any person shall write, print, utter or publish . . . any false,
scandalous and malicious writing or writings against the
government of the United States, or either house of the Congress of
the United States, or the President of the United States, with intent to
defame the said government, or either house of the said Congress, or
the said President,
or to bring them . . . into contempt or disrepute; or to excite against
them . . . the hatred of the good people of the United States, or to stir
up sedition within the United States, . . .
or to aid, encourage or abet any hostile designs of any foreign nation
against United States, their people or government, then such person,
being thereof convicted before any court of the United States having
jurisdiction thereof,
[that person] shall be punished by a fine not exceeding two thousand
dollars, and by imprisonment not exceeding two years.
The Kentucky Resolution, drafted by Thomas Jefferson, and the
Virginia Resolution, written by James Madison, opposed the Sedition Act
as, among other things, a violation of the First Amendment.
The Sedition Act was primarily used to prosecute newspaper editors who
opposed Federalist policies, and while some of them argued in their
defense that the act was unconstitutional, the courts seem not to have
addressed the First Amendment in deciding the cases.
Even Supreme Court Justice Samuel Chase, who presided over a
number of sedition trials in his role as head of a federal circuit, did not
specifically address the Amendment’s speech and press protections.
•  some scholars doubt the Sedition Act could have survived a Constitutional
challenge
•  but the Alien and Sedition Acts were self-limiting, and were allowed allowed
to expire three years after their enactment, when the new Jefferson
administration took office.
•  the press was censored during the Civil War:
Lincoln suspended habeas corpus, and the military arrested thousands of
civilians, including newspaper editors and speakers critical of the Union war
effort. They were tried under military law, and although Chief Justice Roger
Taney ordered one secessionist to be freed, he admitted having no power to
enforce the ruling; many of the other justices strongly supported Lincoln.
•  It was not until America’s involvement in World War I (1917-19) that speech
limitations became an issue that the Supreme Court was willing to take up.
The period of World War I raised the
question,
Can freedom of speech be suspended
during times of national emergency?
The answer was a qualified, “Yes.”
During World War II, the journalist Max
Lerner recommended that the nation
"subordinate civil liberties to wartime
considerations and political loyalties.”
The WPA poster is for a lecture
in Des Moines on Jan. 24, 1940.
In an op ed on sedition trials of Nazi
sympathizers and suspected Axis
agents in 1944, Lerner wrote:
“Remember that in a free America we
do not try men for dangerous words and
thoughts. We try them for organizational
acts linked with a world-wide effort [to
destroy democracy].”
St. Petersburg Times,
May 24, 1944, p. 7.
Although Lerner here distinguishes
speech from action, it’s not always clear
how to separate the two. In the essay,
he suggests that the men will be
convicted.
Lerner himself actively opposed both
antisemitism and racism against African
Americans, but he supported the
internment of Japanese Americans
during World War II.
The Trading with the Enemy Act of 1917 placed restrictions on the use of
foreign languages in print:
It shall be unlawful for any person . . . to print . . . in any foreign language, any news
item, editorial or other printed matter, respecting the Government of the United
States, or of any nation engaged in the present war, its policies, international
relations, the state or conduct of the war, or any matter relating thereto . . .
[unless] the publisher or distributor . . .has filed with the postmaster . . . a true and
complete translation of the entire article . . . in plain type in the English language.
The New York Times on the
sweeping powers of
censorship the TWEA gives to
the Postmaster General.
Sept.25, 1917, p. 7
In 1918, additional offenses were added under the Sedition Act, including:
(5) uttering, printing, writing, or publishing any disloyal, profane, scurrilous,
or abusive language, or language intended to cause contempt, scorn,
contumely or disrepute as regards the form of government of the United
States;
(6) or the Constitution; (7) or the flag; (8) or the uniform of the Army or
Navy;
(9) or any language intended to incite resistance to the United States or
promote the cause of its enemies;
(10) urging any curtailments of production of any things necessary to the
prosecution of the war with intent to hinder its prosecution;
(11) advocating, teaching, defending, or suggesting the doing of any of
these acts; and
(12) words or acts supporting or favoring the cause of any country at war
with us, or opposing the cause of the United States therein.
In May of 1918,
William S.
Harding, the
governor of Iowa,
issued an
executive order
banning the use
of foreign
languages in
public.
In all, 18,000
people were
charged with
violating various
Midwest laws
against foreign
language use
during WW I.
The Babel Proclamation
The New York Times reports on former president Theodore
Roosevelt’s speech in Des Moines praising the Babel
Proclamation:
This is a nation—not a polyglot boarding house. There is not
room in the country for any fifty-fifty American. There can be but
one loyalty—to the Stars and Stripes: on nationality—the
American—and therefore only one language—the English
language.
In 1921, two years after the war
had ended, New York state
instituted English literacy tests
for voters and entertained a law
to ban,
any speech or talk in a public
manner, in any language other
than English upon any subject
relating to the form or character
of the government or the
administration or enforcement of
the laws of this state or the
United States.
Other acts at the time—for example, laws in Nebraska and Ohio-banned the teaching of German, or of foreign languages.
In 1923, in the case of Meyer v. Nebraska, such laws were held by the
Supreme Court to be unconstitutional violations of the 14th Amendment,
interfering with parents’ rights to educate their children, and teachers’
right to pursue their profession.
Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.2d. (1919): this
case articulates the “clear and present danger” exception to First Amendment
protection.
Schenck, an active Socialist, was convicted of violating Sec. 3 of the Espionage
and Sedition Law of 1917:
Section 3: Whoever, when the United States is at war, shall wilfully make or
convey false reports or false statements with intent to interfere with the
operation or success of the military or naval forces of the United States or to
promote the success of its enemies and whoever when the United States is
at war, shall wilfully cause or attempt to cause insubordination, disloyalty,
mutiny, refusal of duty, in the military or naval forces of the United States, or
shall wilfully obstruct the recruiting or enlistment service of the United
States, to the injury of the service or of the United States, shall be punished
by a fine of not more than $10,000 or imprisonment for not more than
twenty years, or both.
The Supreme Court affirmed the convictions of the Schenck defendants for
conspiring to incite subordination by mailing to new recruits and enlisted men
leaflets that compared military conscription to involuntary servitude and urged
them to assert constitutional rights.
From Schenck’s anti-draft flyer:
Assert Your Rights
The Socialist Party says that any individual or officers of the law intrusted
with the administration of conscription regulations violate the provisions of
the United States Constitution, the supreme law of the land, when they
refuse to recognize your right to assert your opposition to the draft. . . .
You are responsible. You must do your share to maintain, support, and
uphold the rights of the people of this country.
In this world crisis where do you stand? Are you with the forces of liberty
and light or war and darkness?
A conscript is little better than a convict
You can find a hi-res image of Schenck’s leaflet here.
There was considerable resistance to US participation in WW I
In his opinion in Schenck, Justice Oliver Wendell Holmes stated his famous
aphorism about "falsely shouting fire in a theatre" and set forth a "clear and
present danger test" to judge whether speech is protected by the First
Amendment:
We admit that in many places and in ordinary times the defendants in saying all
that was said in the circular would have been within their constitutional rights. But
the character of every act depends upon the circumstances in which it is done.
The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. . . .
The question is whether the words are used in such circumstances and are of
such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has the right to prevent. It is a question of
proximity and degree. . . .
When a nation is at war many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight
and that no Court could regard them as protected by any constitutional right.
Here, in balancing government interest against free speech, the scale tips
toward the government.
Writing in the Harvard Law Review in 1919, Zachariah Chaffee wrote,
There are those who believe that the Bill of Rights can be set aside in war
time at the uncontrolled will of the government. The first ten amendments
were drafted by men who had just been through a war. Two of these
amendments expressly apply in war. . . .
A group of Harvard Law School alumni called for Chaffee to be censured, but
Harvard declined to do that. Yet Chaffee is no radical. He would balance the
constitutional right to free speech against the constitutional right to wage war:
In war time, therefore, speech should be unrestricted by the censorship or
by punishment, unless it is clearly liable to cause direct and dangerous
interference with the conduct of the war. [emphasis added]
J. Holmes articulated the “marketplace of ideas” doctrine in his dissent in a related
case, Abrams v. U.S. (1919):
men . . . may come to believe . . . that the ultimate good desired is better
reached by free trade in ideas -- that the best test of truth is the power of the
thought to get itself accepted in the competition of the market, and that truth is
the only ground upon which their wishes safely can be carried out. That, at
any rate, is the theory of our Constitution. It is an experiment, as all life is an
experiment.
Jacob Abrams (right), Mollie Steimer, Sam Lipman (left),
and Hyman Lachowsky were convicted under the 1918
Sedition Act for printing leaflets in English and Yiddish
criticizing the U.S. for sending troops to Russia.
Their sentence, 20 years in prison, was affirmed by the
Supreme Court. Jacob Schwartz was arrested with them,
but died after a police beating.
The handbills said that Russian immigrants should cease to
assist the United States in the war, and that all workers
should stop producing ”bullets, bayonets, cannons, [that]
murder not only Germans, but also our dearest, best, who
are in Russia and are fighting for freedom.”
An excerpt from one
of the circulars in
Abrams.
The Supreme Court
found that the
phrase “Workers of
the world! Awake!
Rise! Put down your
enemy and mine!”
constituted a call for
the overthrow of the
United States.
From the opinion by Justice Clarke:
This is clearly an appeal to the "workers" of this country to arise and put
down by force the Government of the United States which they characterize
as their "hypocritical," "cowardly" and "capitalistic" enemy.
In another case upholding convictions of draft protesters, Frohwerk v.
United States, 249S., 204, 206 (1919), Holmes addressed the
limitations on free speech:
the First Amendment while prohibiting legislation against free speech as
such cannot have been, and obviously was not, intended to give
immunity for every possible use of language. We venture to believe that
neither Hamilton nor Madison, nor any other competent person then or
later, ever supposed that to make criminal the counseling of a murder
within the jurisdiction of Congress would be an unconstitutional
interference with free speech.
In a concurrence in Whitney v. California (1927), Justice Brandeis refined the “clear and
present danger” notion to include imminent danger and articulated the controlling idea
that the best defense against bad speech is more speech.
Whitney had been convicted of helping to organize a branch of the Communist Party,
which advocated violent overthrow of the American government. The Court upheld her
conviction, and though Brandeis reluctantly agreed, he articulated a strong defense of
speech that would later carry much weight:
[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech
where the advocacy falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on . . . . In order to support a finding of clear and
present danger it must be shown either that immediate serious violence was to be
expected or was advocated, or that the past conduct furnished reason to believe that
such advocacy was then contemplated.
[N]o danger flowing from speech can be deemed clear and present unless the
incidence of the evil apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education, the remedy to
be applied is more speech, not enforced silence. Only an emergency can justify
repression. Such must be the rule if authority is to be reconciled with freedom.
It is only the present danger of
immediate evil or an intent to
bring it about that warrants
Congress in setting a limit to the
expression of opinion . . . .
Congress certainly cannot forbid
all effort to change the mind of
the country.
[Brandeis, concurrence in Whitney,
emphasis added]
Imminent danger would later be
adopted by the Court majority
overruling Whitney (see Brandenburg
1969)
The Alien Registration Act of 1940 (the Smith Act) 18 U.S. Code § 2385 (2000):
Another wartime restriction on political speech was used during the Cold War to
pursue suspected Communists, though the authors of the Declaration of
Independence could be prosecuted for similar violations:
§ 2385. Advocating Overthrow of Government.
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty,
necessity, desirability, or propriety of overthrowing or destroying the government of
the United States or the government of any State, Territory, District or Possession
thereof, or the government of any political subdivision therein, by force or violence,
or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government,
prints, publishes, edits, issues, circulates, sells, distributes, or publicly
displays any written or printed matter advocating, advising, or teaching the duty,
necessity, desirability, or propriety of overthrowing or destroying any government in
the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or
assembly of persons who teach, advocate, or encourage the overthrow or
destruction of any such government by force or violence; or becomes or is a
member of, or affiliates with, any such society, group, or assembly of persons,
knowing the purposes thereof-Shall be fined under this title or imprisoned not more than twenty years, or both,
and shall be ineligible for employment by the United States or any department or
agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each
shall be fined under this title or imprisoned not more than twenty years, or both,
and shall be ineligible for employment by the United States or any department or
agency thereof, for the five years next following his conviction.
As used in this section, the terms "organizes" and "organize", with respect to any
society, group, or assembly of persons, include the recruiting of new members, the
forming of new units, and the regrouping or expansion of existing clubs, classes,
and other units of such society, group, or assembly of persons.
In Dennis v. United States (1951), American Communist Party leaders were convicted
under the Smith Act for advocating the overthrow of the U.S. government by force.
The Court ruled that when the government interest is a serious one, a clear and
present danger may be assumed to exist and the government may limit speech:
[o]verthrow of the Government by force and violence is certainly a substantial
enough interest for the Government to limit speech.
Chief Justice Vinson adopts Learned Hand’s formulation in the decision of the court
below:
In each case [courts] must ask whether the gravity of the “evil,” discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the
danger.’ 183 F.2d at 212.
The Court noted that the Smith Act criminalizes advocacy, not discussion. Teaching
about Communism would be OK, so long as one did not advocate Communist ideas.
In practice, however, membership in the Communist Party was treated as prima facie
evidence of advocating government overthrow by force or violence. Thus teachers
and writers suspected of being Communists were fired or blacklisted even though
they never advocated the overthrow of the government.
The more general “clear and present danger” doctrine was updated in
Brandenburg v. Ohio (1969), to a more specific test: whether the words in
question would provoke “imminent lawless action.” This incorporates
Brandeis’ view in Whitney.
Here the Court tossed out an Ohio law making it illegal to advocate
violence, because the law did not specify that there had to be an imminent
danger.
Brandenburg, a Ku Klux Klan leader, invited a reporter to a rally at which
there were only 12 Klan members and no other spectators. The reporter
filmed the rally and broadcast some excerpts on the news, though the
sound was fairly unintelligible.
Although the Klan leader advocated violence against African Americans and
Jews, the Court found that such advocacy did not pose an imminent
danger, in large part because no one was really listening at the rally, and
the TV audience could not really hear the speeches being given.
From the opinion:
the constitutional guarantees of free speech and free press do not permit
a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.
Justice Douglas, concurring in Brandenburg, attacks the red-baiting of the
Cold War:
the invasions of privacy made by investigating committees were
notoriously unconstitutional. That is the deep-seated fault in the infamous
loyalty-security hearings which, since 1947 when President Truman
launched them, have processed 20,000,000 men and women. Those
hearings were primarily concerned with one's thoughts, ideas, beliefs, and
convictions. They were the most blatant violations of the First Amendment
we have ever known.
J. Douglas here equates speech and action:
Action is often a method of expression, and within the protection of the First
Amendment. Shouting fire in a crowded theater is different,
a classic case where speech is brigaded with action. . . .
Apart from rare instances of that kind, speech is, I think, immune from
prosecution. . . .
The quality of advocacy turns on the depth of the conviction; and
government has no power to invade that sanctuary of belief and
conscience.
In Cohen v. California (1971): Paul Robert Cohen was convicted for violating a
California law that bans
maliciously and willfully disturb[ing] the peace or quiet of any
neighborhood or person . . . by . . . offensive conduct.
Cphen’s offense was
wearing a jacket bearing the words "Fuck the Draft" in a corridor of the
Los Angeles Courthouse.
When he entered a courtroom, Cohen removed the jacket and folded it over
his arm. A police officer noticed Cohen and sent a notice to a judge about
citing Cohen for contempt of court. The judge refused to do so, but the officer
arrested Cohen on the offensive-conduct charge.
The California statute on which Cohen was convicted, in full:
Every person who maliciously and willfully disturbs the peace or quiet of
any neighborhood or person, by loud or unusual noise, or by tumultuous
or offensive conduct, or threatening, traducing, quarreling, challenging to
fight, or fighting, or who, on the public streets of any unincorporated town,
or upon the public highways in such unincorporated town, run any horse
race, either for a wager or for amusement, or fire any gun or pistol in such
unincorporated town, or use any vulgar, profane, or indecent language
within the presence or hearing of women or children, in a loud and
boisterous manner, is guilty of a misdemeanor, and upon conviction by
any Court of competent jurisdiction shall be punished by fine not
exceeding two hundred dollars, or by imprisonment in the County Jail for
not more than ninety days, or by both fine and imprisonment, or either, at
the discretion of the Court.
Cohen appealed his conviction.
The Court of Appeal held that "offensive conduct" means "behavior
which has a tendency to provoke others to acts of violence or to in turn
disturb the peace," and affirmed the conviction.
But in reversing Cohen’s conviction, the Supreme Court ruled,
the State may not, consistently with the First and Fourteenth
Amendments, make the simple public display of this single four-letter
expletive a criminal offense.
Uncredited picture of
Paul Robert Cohen at
age 19.
From the opinion by Justice Harlan:
There were women and children present in the corridor. The
defendant was arrested. The defendant testified that he wore the
jacket knowing that the words were on the jacket as a means of
informing the public of the depth of his feelings against the Vietnam
War and the draft.
There was no violence, or threat.
The only "conduct" which the State sought to punish is the fact of
communication. Thus, we deal here with a conviction resting solely
upon "speech” . . . .
so long as there is no showing of an intent to incite disobedience to or
disruption of the draft, Cohen could not, consistently with the First and
Fourteenth Amendments, be punished for asserting the evident
position on the inutility or immorality of the draft his jacket reflected.
This is not, for example, an obscenity case. Whatever else may
be necessary to give rise to the States' broader power to
prohibit obscene expression, such expression must be, in some
significant way, erotic.
The message on the jacket does not constitute “fighting words”:
No individual actually or likely to be present could reasonably
have regarded the words on appellant's jacket as a direct
personal insult.
"we are often ‘captives' outside the sanctuary of the home and
subject to objectionable speech." Id. at 738. The ability of
government, consonant with the Constitution, to shut off
discourse solely to protect others from hearing it is, in other
words, dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable manner.
Any broader view of this authority would effectively empower a
majority to silence dissidents simply as a matter of personal
predilections.
Unlike loud soundtrucks, it’s possible to avoid Cohen’s message if you
find it offensive:
Those in the Los Angeles courthouse could effectively avoid
further bombardment of their sensibilities simply by averting their
eyes.
And the state cannot single out one word as being more offensive than
others:
For, while the particular four-letter word being litigated here is
perhaps more distasteful than most others of its genre, it is
nevertheless often true that one man's vulgarity is another's lyric.
Indeed, we think it is largely because governmental officials cannot
make principled distinctions in this area that the Constitution
leaves matters of taste and style so largely to the individual.
The question, then, is,
whether California can excise, as "offensive conduct," one particular
scurrilous epithet from the public discourse, either upon the theory of
the court below that its use is inherently likely to cause violent reaction
or upon a more general assertion that the States, acting as guardians
of public morality, may properly remove this offensive word from the
public vocabulary.
governmental bodies may not prescribe the form or content of
individual expression.
Permitting such speech is not a sign of political or social decay:
That the air may at times seem filled with verbal cacophony is, in this
sense not a sign of weakness but of strength.
the State has no right to cleanse public debate to the point where it
is grammatically palatable to the most squeamish among us.
“it is nevertheless often true that one man's vulgarity is another's
lyric.”
This is pretty much the opposite conclusion to that drawn in Schenck.
Justice Brennan dissents on the grounds that it’s not a First Amendment
issue:
Cohen's absurd and immature antic, in my view, was mainly
conduct, and little speech.
And so it is within the state’s jurisdiction to regulate conduct.
Despite these shifts in the Court’s interpretation of the First Amendment over a
century, the Supreme Court building itself has been declared by Congress a
"protest-free zone," and a number of protestors have been arrested for carrying
political signs in or outside the Supreme Court building in Washington.
40 USC §6134:
It is unlawful to discharge a firearm, firework or explosive, set fire to a
combustible, make a harangue or oration, or utter loud, threatening, or abusive
language in the Supreme Court Building or grounds.
40 USC §6135:
It is unlawful to parade, stand, or move in processions or assemblages in the
Supreme Court Building or grounds, or to display in the Building and grounds a
flag, banner, or device designed or adapted to bring into public notice a party,
organization, or movement.
http://www.youtube.com/watch?v=ZkArffPVaw#t=13
Occupy supporter Scott Fitzgerald was arrested inside the Supreme Court
building for wearing a jacket with "Occupy Everything" on the rear. Fitzgerald
was one of the first protesters arrested in Tampa and charged for Trespassing in
a city park.
Is there any inconsistency in barring the exercise of First Amendment
rights to speech, to assemble, to ask for redress of grievances, in the
Supreme Court, the institution charged with protecting the First
Amendment? What is the legal justification for banning protest at the
Supreme Court?