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The Creation of the First Amendment Right to Free Expression: Fro William Mitchell Law Review Volume 34 | Issue 3 Article 5 2008 The rC eation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century Stewart Jay Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Jay, Stewart (2008) "The rC eation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid- Twentieth Century," William Mitchell Law Review: Vol. 34: Iss. 3, Article 5. Available at: http://open.mitchellhamline.edu/wmlr/vol34/iss3/5 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Jay: The Creation of the First Amendment Right to Free Expression: Fro 1. JAY - ADC 4/30/2008 2:41:26 PM THE CREATION OF THE FIRST AMENDMENT RIGHT TO FREE EXPRESSION: FROM THE EIGHTEENTH CENTURY TO THE MID-TWENTIETH CENTURY † Stewart Jay I. FREEDOM OF EXPRESSION IN THE EIGHTEENTH CENTURY ....783 II. FREEDOM OF EXPRESSION FROM THE NINETEENTH CENTURY TO WORLD WAR I...................................................803 III. SPEECH RIGHTS DURING WORLD WAR I AND THE “RED SCARE” ...................................................................................828 IV. THE SECOND RED SCARE: FREE EXPRESSION IN THE COLD WAR........................................................................................920 V. AFFIRMING THE RIGHT TO PUBLIC PROTEST: FREE EXPRESSION DURING THE CIVIL RIGHTS ERA AND THE VIETNAM WAR ........................................................................972 VI. THE FOUNDATIONS OF FREE EXPRESSION...........................1017 The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. Justice Anthony M. Kennedy (2000)1 Justice Robert H. Jackson posited in 1943 that “[i]f there is any fixed star in our constitutional constellation, it is 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.”2 In the same opinion, which ended compulsory flag salutes in public schools, Justice † Professor of Law and William L. Dwyer Chair in Law, University of Washington. This article is dedicated to the memory of the best boss I ever had, Warren E. Burger, Chief Justice of the United States 1969–1986. © 2008 Stewart Jay. 1. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 826 (2000). 2. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 773 Published by Mitchell Hamline Open Access, 2008 1 William Mitchell Law Review, Vol. 34, Iss. 3 [2008], Art. 5 1. JAY - ADC 4/30/2008 2:41:26 PM 774 WILLIAM MITCHELL LAW REVIEW [Vol. 34:3 Jackson premised his reasoning on what he called a “trite but necessary” lesson about the relationship between the First Amendment and democratic rule in America: “Compulsory unification of opinion achieves only the unanimity of the graveyard. Authority here is to be controlled by public opinion, not public opinion by authority.”3 Nearly a half century later, Justice William J. Brennan proclaimed while upholding the right to burn the American flag in protest, that “[i]f 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.”4 Repudiation of governmentally-mandated orthodoxy and tolerance for unpopular speech are two sides of the guiding principle in modern free speech law. “The essence of that rule,” Justice John Paul Stevens wrote for the Supreme Court, is that “regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator.”5 Government neutrality is the norm in regulating speech. These concepts are indispensable components of the libertarian vision of the First Amendment that was only beginning to be recognized by the Supreme Court when Justice Jackson spotted the fixed star in 1943.6 For well over 100 years after the Bill of Rights was passed, the Court had not once acted to protect First Amendment rights. In large measure, this was because the Justices did not recognize that the states were bound by the amendment until 1925.7 Even when they did, a majority of the Court demonstrated almost unrelenting hostility toward the speech and press rights of political dissidents.8 A similar wave of repression appeared in the Cold War period of the 1950s, countenanced again by most of the Court.9 But notwithstanding the setback for free expression that the 1950s witnessed, the Court had decidedly turned a corner toward the modern libertarian approach to free expression.10 Decisions handed down over a decade starting with 3. Id. at 641. 4. Texas v. Johnson, 491 U.S. 397, 414 (1989). 5. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 67 (1976). 6. Barnette, 319 U.S. at 642. 7. See Gitlow v. New York, 268 U.S. 652, 654 (1925). 8. See id. 9. Konigsberg v. State Bar of Cal., 366 U.S. 36, 78–79 (1961). 10. Barnette, 319 U.S. at 646. http://open.mitchellhamline.edu/wmlr/vol34/iss3/5 2 Jay: The Creation of the First Amendment Right to Free Expression: Fro 1. JAY - ADC 4/30/2008 2:41:26 PM 2008] CREATING THE RIGHT TO FREE EXPRESSION 775 the late 1930s provided the theoretical foundation for today’s more fully realized First Amendment. Fundamental tenets of free speech were overturned in short order and the Court reinforced the traditional hostility to prior restraints.11 Justice Jackson’s decision in the 1943 case, West Virginia State Board of Education v. Barnette, overruled a case only three years old reaching the opposite result.12 It is fitting, then, to start this study with a rude reminder: Justice Jackson’s and Justice Brennan’s defense of autonomous individualism against statist conformity represents the modern First Amendment, not its past incarnations. Today, in contrast to the first three decades of the last century, the Court—including its most conservative members, who at times lead the charge—has time and again shielded speakers and writers from suppression of their opinions. How this seismic shift in the Court’s attitude took place is the story that will be told in these pages. The thesis is that by the end of the 1960s the Court had enunciated the essential principles of the modern First Amendment, albeit with some significant exceptions. Those exceptions involved commercial speech and sexually-explicit expression, holdovers from a more repressive era. Even in those areas, however, the seeds of current doctrines were sowed well before the Court recognized that these forms of speech were entitled to substantial protection from government interference. As with other constitutional subjects, there are two basic ways to inform an understanding of free expression as a fundamental value to Americans. One avenue is to research the origins of the First Amendment in an attempt to discover why it was included in the Bill of Rights. Another approach seeks to elucidate the theory of free expression as it has been revealed through decades of experience in a myriad of settings. Neither is entirely satisfactory. The first, relying on the expectations of those who created the First Amendment, runs into the reality that legal protections for speech and press at the time the First Amendment was written were vastly less libertarian than modern judicial interpretations. Looking to developments in the interim reveals a mottled pattern of suppression and protection. In taking the second path, one must study not just legal doctrines, but also social and political history, to discern the 11. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 589 (1976). 12. 319 U.S. at 642. Published by Mitchell Hamline Open Access, 2008 3 William Mitchell Law Review, Vol. 34, Iss. 3 [2008], Art. 5 1. JAY - ADC 4/30/2008 2:41:26 PM 776 WILLIAM MITCHELL LAW REVIEW [Vol. 34:3 principles behind the epoch’s attitude toward free expression. Legal history is not just an assembly of seriatim decisions. Rulings are based on theories from which the governing principles of the subject in question are deduced. Free expression is no different. Along the way toward the more libertarian outlook of modern American free expression doctrines, the Court, the academy, and the public have attempted to develop grand theories to define the purposes of the First Amendment (or some portion of it). Few subjects of constitutional law have been accompanied by such a cacophony of competing justificatory theories as freedom of speech and press. Here is a brief and incomplete sample of proposed as well as judicially-adopted theories for protecting free expression: unbridled speech allows the truth to prevail in the marketplace of ideas;13 it oils the wheels of democracy by providing citizens the knowledge with which to govern themselves;14 free expression thus checks against government abuse and provides a mechanism that fosters “rational judgment” instead of social upheaval;15 free speech serves the indispensable end of developing self-restraint in society⎯to which can be appended the idea that allowing dissent releases pressure that otherwise would explode into antisocial behavior.16 Still others see speech as part of a larger system of natural rights, which regards free expression as being vital to fostering personal autonomy and self-determination.17 Facilitating the formation of political opinions may be fundamental to the democratic process, this view goes, but by itself it presents a crabbed conception of what justifies freedom to expression.
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