Part 1, Module 2: Protected Speech and Expression
Short Video: Do Bible Lessons in Schools Violate the First Amendment's Establishment of Religion Clause?
Module 2: Protected Speech and Expression
The Supreme Court identifies the categories of speech protected by the First Amendment (and thus subject to strict scrutiny review). The underlying commonality of these categories is that the speech expresses substantive ideas; ideas that have meaning. Substantive ideas, opinion, and expression are protected in order to assure an open “marketplace of ideas.” In this second module, we will discuss categories of substantive speech that protected by the First Amendment. For each category, we will examine the historical role of the speech as well as the Supreme Court’s rationale for assuring its protection.
The Establishment Clause of the First Amendment guarantees religious freedom. It states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. Freedom of religion includes the freedom to practice religious-based speech, that which professes religion or belief in teaching, practice, worship and ritual. This includes the freedom to choose any faith or not follow any religion at all.
The constitutional framers drafted the First Amendment with over two centuries of state-sponsored religious conflict and oppression in mind. They decided that the best way to protect religious liberty was to keep the government out of belief systems. The establishment clause mandates a wall of separation between church and state, though this phrase appears not in the Constitution itself, but in the writings of Thomas Jefferson.
The establishment clause guarantees religious liberty to citizens and it bars the government from prohibiting or promoting religion. The government cannot give financial support to any religion, cannot show preference to any belief system and cannot mandate teaching any religious material in public schools. This was the basis for the 1987 Supreme Court decision in Edwards v. Aguillard, which struck down a school district’s decision to add creationism to the curriculum.
The establishment clause is not without controversy. Many feel that tax exemptions for religious organizations violate the clause. Still others feel that acts such as the Religious Freedom Restoration Act, which exempts some businesses from paying for insured employees’ access to birth control, is an unconstitutional religious accommodation. In Burwell v. Hobby Lobby, however, the Supreme Court allowed Hobby Lobby to deny its employees health coverage of contraception based on the religious objections of the company's owners. This was also a form of religious expression.
In 2018, Masterpiece Cakeshop v. Colorado Civil Rights Commission came before the Supreme Court. In that case, a same-sex couple was denied a wedding cake by a Colorado baker. The baker said he would sell the couple other kinds of cakes, but he could not in good conscience sell them a wedding cake because same-sex marriage was against his religious beliefs. The Colorado Civil Rights Commission found that the cake shop had violated the state’s anti-discrimination law. After the Colorado Supreme Court agreed with the gay couple, the baker appealed to the Supreme Court.
The case is illustrative of the tension between individual civil rights and the Constitution’s due process and equal protection clauses. The crux of the issue was: Whose rights prevail? Is the government forbidden from sanctioning the baker because it infringes upon the baker’s First Amendment religious rights? Or does discrimination fall outside the purview of protected religious expression?
In the end, the Supreme Court found for the baker, but only because the Colorado Civil Rights Commission had not properly considered the issue in a way that was neutral to religion, as its quotes indicated “hostility” to religion. The Supreme Court did not decide whether religious public accommodations providers should be exempted from civil rights laws of general applicability, an issue that remains very much in controversy as of 2019.
Implicit in the right to free speech, is the right to express one’s opinion or viewpoint on a matter. The First Amendment prohibits the government from punishing or suppressing citizens’ opinions and viewpoints. This protection extended to all opinions; even the most abhorrent and distasteful. Hate speech, or speech designed to promote hatred based on ethnicity, national origin, gender, race, sexual preference and religion, is also protected.
The most famous case regarding hate speech is National Socialist Party v. Skokie, which held that a town (with a large Jewish population) could not ban a neo-Nazi group from holding a pro-white supremacy, anti-Semitic rally in the community.
Since Skokie, the Court’s stance on hate speech has been hotly debated. The generally followed approach is that to make hate speech unprotected is to give the government the power to decide which opinions are correct. The danger of allowing the government to do so is aptly illustrated by a well-known quote from the prominent political activist and pastor, Martin Niemoller.
First they came for the Socialists, and I did not speak out — Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out — Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out — Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
If the government is permitted to regulate which opinions may be aired, it creates a “slippery slope”. If the government enacts laws that ban opinions (even hateful opinions), it might then be able to quash any idea or opinion, which could lead down the path of tyranny or authoritarianism.
In the absence of demonstrable imminent danger, the government is even prohibited from pre-emptively regulating hate-based actions that convey an opinion or viewpoint. In R.A.V. v. City of St. Paul, a group of white teenagers burned a cross on black family's lawn. The police charged one of the teens under a bias-motivated crime statute that prohibited the display of any symbol that might "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." In overturning the conviction the Court explained that the law “prohibits otherwise permitted speech solely on the basis of the subject the speech addresses. The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-Semites are bastards but not that all Jews are bastards. Government has no authority to license one side of a debate.”
In August 2017, a rally dubbed, “Unite the Right” was organized by Charlottesville, VA native and white separatist blogger Jason Kessler. The rally was purportedly to protest the removal of a statue of Confederate General Robert E. Lee from a downtown park, but became a magnet for white supremacy groups from across the U.S. Reminiscent of Skokie, the rally was unpopular to most people in Charlottesville. Nonetheless, police were summoned to protect the rally’s marchers. The rally erupted in violence and a young protester who lost her life when a rally member allegedly ran her down with his car. It was a tragedy for the city and for the police, who were viewed by many as supporting the rally. However, the police were summoned to protect the rally participants precisely because of Skokie, R.A.V., and the First Amendment.
Protected Forms of Expression
“Speech” does not always have to be spoken. Art, in all forms, is considered speech. For instance, statues and paintings are both forms of expression. If a government bans a piece of art because it deems it offensive, it is quashing expression. Song lyrics are also protected artistic expression. Artistic speech is protected on the premise that even if a piece of work does not appeal to everyone, it still has expressive have value. The government may not censor artistic choices, offensive though they may be to some.
One of the most targeted categories of artistic expression is rap music. In the 1990’s, the rap movement, especially the genre of “gangsta rap,” brought a backlash from government, corporations and politicians responding public outcries over misogyny and violence expressed in rap lyrics. Members of the rap band “2 Live Crew” was arrested for obscenity in Florida after performing tracks from their album Nasty as they Wanna Be, after the album had been declared “legally obscene” by a federal judge. Its lyrics bragged about dominant sexuality and referred to women almost uniformly as “bitch.”
The censorship movement, led by Tipper Gore, was strong at this time and the Florida government felt emboldened to criminalize what it interpreted as obscene material. The band was convicted of the charges and appealed the convictions to the 11th Circuit Court of Appeals. 2 Live Crew’s attorney argued that, notwithstanding the offensive material, the music was a form of popular music that “reflects exaggeration, parody and humor…about delicate subjects.” He concluded arguments by invoking the First Amendment protection for artistic speech, “'These words, as crude as some people find them, have artistic value when you have an understanding, when you have them, in effect, decoded.'' The court agreed, and the conviction was reversed in 1992.
Other oft-targeted forms of artistic expression include parody and satire.
In 1988, Hustler v. Falwell solidified First Amendment protection for parody and satire. In this case, the inside front cover of an issue of Hustler magazine contained a satirical advertisement for Campari, a popular liqueur. The feature of the ad was Jerry Falwell, a well-known evangelical Christian minister who had a long-standing and acrimonious relationship with the magazine’s publisher, Larry Flynt. The title of the advertisement was “Jerry Falwell talks about his first time.” Campari’s “first time” campaign was the brand’s advertising drive in which various celebrities were interviewed about their first time trying the product. In the Falwell ‘interview” (which never actually occurred), they parodied the advertising campaign and wrote Falwell’s “first time” was during a drunken, incestuous encounter with his mother in an outhouse, implicitly portraying Falwell as a hypocrite.
Falwell sued Hustler, lost, and appealed it to the Supreme Court. Finding for Hustler, the Court found the First Amendment requires “the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.” The Court referred to the long history of political satire about leaders and statesmen in the U.S. to show how “graphic depictions and satirical cartoons have played a prominent role in public and political debate.”
Symbolic speech is nonverbal expression of ideas and beliefs. Examples include sit-ins, flag waving, flag burning, wearing arm bands, marches and carrying signs. Without a compelling reason, the government may not censor symbolic actions.
The seminal case for symbolic speech is Tinker v. Des Moines. In 1965, a group of students at a Des Moines public school organized a silent protest against the Vietnam War. They planned to wear black armbands to school to display their protest. However, when the principal discovered the plan, he told the student body that anyone who wore the armbands would be suspended. Some students ignored the threat and were suspended. Their parents sued the school and the Supreme Court eventually ruled that the armbands represented “pure speech” and that the suspension violated the students’ First Amendment rights.
Perhaps the most notable example of symbolic speech protection is the 1989 case, Texas v. Johnson. At issue was an anti-flag burning law. In front of the Dallas City Hall, Johnson burned an American flag to symbolize his protest of the Reagan administration. He was tried and convicted under a Texas law outlawing flag desecration. The Supreme Court ruled that flag desecration for political protest was constitutionally protected speech, saying, "if there is a bedrock principle underlying 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 Right to Anonymity
Anonymous speech (made anonymously or under a pseudonym) is a vital part of political and social discourse. It shields people from political or economic retribution for the expression of unpopular or revolutionary ideas. As the Court held in a 1995 case,
Anonymity is a shield from the tyranny of the majority. . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
The First Amendment protects anonymity because it helps citizens express controversial or unpopular views. For many, it is dangerous to be connected with the things they say. For instance, whistleblowers may use assumed names to report news that companies and government want suppressed. The courts have consistently ruled that the right to publish anonymously is guaranteed under the First Amendment unless a prevailing governmental interest overrides concerns for individual liberty.
Since the Internet, the right to publish anonymously has become more complicated, especially in social media commentary. Recently online review platforms have been ordered to reveal the identity of anonymous review posters. In 2017, both Yelp and Glassdoor were forced to disclose anonymous user identities. Yelp was forced to “out” anonymous users who posted negative reviews in connection with defamation lawsuits. Yelp argued that anonymity creates an environment that provides important and robust user feedback and to reveal the reviewer’s identities would make future reviewers afraid to post their opinions.
Glassdoor was forced to reveal anonymous users’ identities as well. In an important case, the federal government issued a subpoena to the online employer review site to identify 125 anonymous accounts that were linked to an employer under investigation for consumer fraud. Glassdoor refused the government’s demand and argued, “An individual’s right to anonymous free speech – which includes the ability of people to leave anonymous reviews of their workplace experiences – is a cornerstone of our society that inherently helps others and should be protected.” However, neither Yelp’s nor Glassdoor’s argument persuaded the Courts of Appeals.
Tinker v. Des Moines set precedent in both symbolic speech and student speech. In this decision, the Court stated that, “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”. Still, while all people have First Amendment rights, in many cases, the younger the people, the less expansive their First Amendment rights. Public school students are afforded less protection adults.
The justification is like that for time, place and manner restrictions. Students have the right to speak out, hand out flyers and petitions and wear expressive clothing in school; but those rights may be regulated if they disrupt the functioning of the school or violate school policy. For example, in 2018, a Pennsylvania school suspended 21 students for participating in the “national walkout” in protest of the Parkland shootings, because they disrupted the school day.
An important precedent comes from the “Bong Hits 4 Jesus” case in 2002. At a school-supervised event, high schooler Joseph Frederick and others held up a banner with the message "Bong Hits 4 Jesus." The school principle confiscated the banner and suspended students for ten days, citing the school's policy against the display of material that promote illegal drugs. Frederick the principal and school district on First Amendment grounds. The 9th Circuit U.S. Court of Appeals found in favor of Frederick and held that, per Tinker, Frederick’s rights were violated because, he was punished for his message rather than for any disruption. However, the Supreme Court reversed, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. The opinion noted that that although students do have some right to political speech in school, the right does not extend to pro-drug messages that undermine the school's important mission to discourage drug use.
Other examples of acceptable student speech regulation include school dress codes, “grooming codes,” bans on dreadlocks or extensions and profanity codes.
Related to the issue of prohibited speech in school is compelling it, as in compelling students to recite pledges. Just as the government cannot prohibit free expression, it may not compel expression. To force one to make a statement is to intrude upon one’s right of expression by altering the content of one’s expression.
For example, New Hampshire once had a law requiring all license plates to read, “Live Free or Die.” One citizen did not agree with this slogan and challenged the law, which was struck down because it compelled political speech. The right to be free from compelled speech was applied to schools in West v. Barnette. At issue was a West Virginia law compelling public-school students to salute the flag and pledge allegiance. Several Jehovah’s Witnesses were expelled from school when they refused to salute the flag based on religious objections. They took the case to the Supreme Court, which ruled that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
In our next module we’ll introduce those categories of speech that are deemed unprotected such as incitement, fighting words and obscenity. We will also discuss how and why the Supreme Court has determined that these categories do not deserve First Amendment protection.
 Richard Garnett, “The Political (and Other) Safeguards of Religious Freedom," Cardozo L. Rev. 32, 1815 (2010).
 Frank Lambert, The Founding Fathers and the Place of Religion in America. Princeton University Press; (2010).
 Kenneth Wald and Allison Calhoun-Brown, Religion and Politics in the United States. Rowman & Littlefield; (2014).
 Edwards v. Aguillard, 482 U.S. 578 (1987).
 Edward Zelinsky, “Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause-The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the FICA and Self-Employment Taxes,” Cardozo L. Rev., 33, 1633 (2011).
 Burwell v. Hobby Lobby Stores, 573 US _____ (2014).
 Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A Comparative Analysis,” Cardozo L. Rev. 24, 1523 (2002).
 National Socialist Party of America v. Village of Skokie, 432 US 43 (1977).
 R. A. V. v. St. Paul, 505 U.S. 377 (1992).
 Hustler v. Falwell 485 U.S. 46 (1988).
 Tinker v. Des Moines 393 US 503 (1969).
 Texas v. Johnson 491 U.S. 397 (1989).
 McIntyre v. Ohio Elections Commission 514 U.S. 344 (1995).
 Tinker v. Des Moines 393 US 503 (1969).
 Morse v. Frederick, 551 U.S. 393 (2007).
 West v. Barnette, 319 U.S. 624 (1943).