Freedom of Expression

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F-ck the Draft 

This is not a type-o, nor is it something which the author of this chapter has somehow managed to slip slyly past the editors. While I hope that this does not offend, I would not be surprised if some readers were indeed shocked and perhaps even offended. The editors, of course, could have chosen to leave it out, this being a private forum. It is important, however, to note that in 1971 the Supreme Court held that a state could not convict an individual for “offensive conduct” based solely on the content of his speech; the First Amendment protected Paul Robert Cohen’s right to wear a jacket to court on which the words “F-ck the Draft” were written. Cohen v. California, 403 U.S. 15 (1971).

Does Cohen stand for the proposition that we can freely express ourselves in any way we like at any time? Clearly there must be some limits on the freedom of expression, and these will be explored in detail later in this Chapter. Not every example of expression that is subject to First Amendment protection will be permissible in every context. There are, however, a number of legal concepts that can be gleamed from Cohen. The First Amendment freedom of “speech” applies not just to verbal speech but to various forms of expression as well. As the heading for this Subchapter indicates, the wording of the First Amendment, now over two hundred years old, is not today taken literally by courts. “Freedom of expression” certainly indicates a scope broader than the mere “speech” actually mentioned in the First Amendment. Expression by writing, whether on clothing or elsewhere, is covered by the First Amendment protection. Music and the visual arts constitute “expression” such that the First Amendment applies. In fact, any form of expression or communication that is available to us is included within the concept of “speech” found in the First Amendment. For the purposes of this Chapter, we will use “speech” and “expression” interchangeably.

EXAMPLE (1): Jane is standing on a street corner with a suitcase in her hand. On the side of the suitcase are written the words “Fur is Murder!” in red paint. She walks up and down the street, which happens to be the location of several fur stores. This is a form of expression that is subject to First Amendment protection.

EXAMPLE (2): A number of prominent musicians decide to get together and perform a song which is clearly meant to convey their lack of support for a military action currently underway. The performance will be afforded the protection of the First Amendment.

EXAMPLE (3): Sean Silver likes to paint himself up in metallic paint and work as a mime on a local street corner. One day he changes his routine and paints himself to look like the American flag. He then splashes around in a tub of fluorescent orange paint, hoping his viewers will understand the message he is trying so hard to convey, and also hoping this will lead to a flurry of dollars thrown into the box near his tub ‘o paint. However misguided he might be and however ineffective he is at trying to convey his message (a poll of passers-by on the day in question resulted in no less than 37 different thoughts on what Sean was trying to say), this expression is nonetheless covered under the First Amendment.

The Sean Silver example above would be an example of "symbolic" speech. While symbolic speech is covered under the First Amendment along with other forms of expression, such conduct can be regulated by the government. However, this regulation is only allowed insofar as the government has an independent and important reason for regulating the conduct.

EXAMPLE (1): The day after California turns yet another actor into a political leader by voting him into office, a number of Californians decide to wear black arm bands to convey their sense of mourning. The state would be hard-pressed to find a reason to regulate such conduct.

EXAMPLE (2): In an effort to display their dissatisfaction with the war in Vietnam, a number of citizens burned their draft cards. Although this is symbolic speech protected under the First Amendment, the government can identify an independent and important reason for banning the burning of draft cards; the cards are required to facilitate the smooth operation of the draft, which is a compelling state interest. See United States v. O'Brien, 391 U.S. 367 (1969).

So, under certain circumstances, the government can limit the use of symbolic speech. In Subchapter 2, we will explore limits on other forms of speech and expression. Among other factors affecting the limits which may be imposed on speech is the classification of the speech in question as either "commercial" or "non-commercial". Commercial speech, which primarily means advertising and solicitations, can be regulated in ways that would be impermissible First Amendment infringements if applied to non-commercial speech. This analysis includes regulations regarding lawyer advertising and solicitations, the limitations on which will be discussed in Subchapter 2.

EXAMPLE (1): John is a lawyer in Boston working at the firm of Samia and Samia, LLP. While walking down the street in his lawyer uniform (i.e., pinstripe suit, black shoes), he runs into an old law school chum. He hands the chum his Samia and Samia, LLP business card and says “Call me sometime, we’ll do lunch.” This is not commercial speech.

EXAMPLE (2): Continuing his stroll, John witnesses a horrendous accident in which the careless driver of an obviously expensive and new Mercedes strikes and injures a little old lady crossing the street. John rushes to the injured party’s aid and performs emergency first aid until the paramedics arrive. By all accounts, it is only John’s swift and calm action which kept the woman alive. Before leaving the scene, John hands the lady a business card saying “Call me tomorrow. We’ll sue the pants off that guy!” This is an in-person solicitation to represent the injured party which constitutes commercial speech.

While some forms of speech are afforded a different level of protection under the First Amendment, other forms of speech are granted no protection at all. Speech that incites illegal activity is not protected. See Schenck v. United States, 249 U.S. 47 (1919); Brandenburg v. Ohio, 395 U.S. 444 (1969).

In addition, "obscenity" (the definition of which is, of course, subjective) is not protected speech. Similarly, yelling “Fire!” in a crowded theater cannot be justified as a First Amendment right. Although we will not discuss them in detail, other areas of unprotected speech include defamation and fraudulent misrepresentation as well as “fighting words” (although most “fighting words” laws will be struck down as overly broad and unconstitutionally vague – see Subject 2).

The definition of "obscenity" here is important. In order for a photograph or other forms of expression to be obscene it (i) must appeal to the prurient interest, (ii) must be patently offensive under the law prohibiting obscenity, and (iii) taken in its entirety, it must lack any serious political, artistic, literary, or scientific value. The law in question must describe exactly what it regards as patently offensive under (ii) and the material in question must meet that definition in order for it to be deemed “obscene.” In addition, note that while whether (i) is met is tested by appeal to the local community, whether (iii) is met is determined only by applying a national standard. Of course, the result of this is that it is not easy or simple for legislatures to ban obscene material. But, even if the material cannot easily be banned, legislatures can readily create zoning ordinances to limit the locations in which this unprotected material can be viewed/sold.

EXAMPLE (1): Northernstate passes a law which prohibits “the sale, possession, or display of photographs of naked persons.” While almost any naked picture would qualify under this law, it clearly fails to meet (i) and (iii) above and will be struck down as a law which attempts to limit protected speech (even though it also limits unprotected speech).

EXAMPLE (2): Not to be stymied, Northernstate passes a law which permits adult bookstores and theaters to operate only within a certain 10-block area. This is permissible.

The body of law surrounding obscenity is complex, and cannot be completely detailed within this space. For example, even if not obscene, child pornography may be completely banned as unprotected speech, and possession of such materials may be made a punishable offense while possession of other obscene materials cannot be made a punishable offense. Suffice it to say that obscenity is generally not protected, even if the definition of this area does not consist of many bright lines.

So the First Amendment protects most forms of speech and expression, but not all, and depending on the type of speech (e.g., symbolic, commercial) the protection may differ.

Before moving on to the limitations that can be placed on protected speech, we must pause to consider the "government action" requirement of the First Amendment. As with the other constitutional provisions covered in these chapters, the protections provided pertains only to government action. So if a private office enacts a policy prohibiting any member of its staff from showing up to work wearing clothing that contains “offensive curse words,” an employee could not print “F-ck the Draft” on the back of her sweater and then claim a First Amendment privilege. The first step in any First Amendment analysis must be to ask whether there has been some government action. If not, First Amendment protection will not apply.

Frank’s Fine Furs on France Street in San Francisco has a store policy which prohibits “any employee of Frank’s Fine Furs from publicly expressing an opinion which would tend to cast negative aspersions on the fur trade.” Frank’s first son’s wife, Francine, works in the back, finding furs in the freezing-cold storeroom when someone requests a rarely-purchased fur. To stay warm, she borrows a jacket from Freddy, her cousin, to keep from freezing one fine fall Friday. On the jacket is printed “All-Natural Hemp - Mother Nature’s Finest Gift.” Frank fires Francine for wearing the jacket. Though this might not sound fair, Frank is free to fire Francine, despite the First Amendment, as there is no government action here. 

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