A Grumble: United States Courts Website Misinforms About Free Speech

Last night I carefully observed a gentleman who thinks that criticizing someone violates the First Amendment. You have to be very still in the wild or you spook them. After some irritable flailing our subject — a communications director — offered this:

A reminder that the First Amendment does not include the right to incite actions that hurt others: http://is.gd/Ah8ZU5

What a pointlessly vague, ambiguous, and misleading summary of First Amendment law, I thought. I wonder what unschooled blogger, what anti-speech advocate, what twelve-year-old's Livejournal post, what ungrammatical cat picture is he relying on for that statement?

Funny story.

His link leads to an educational page provided by the United States Courts, the administrative entity that oversees all federal courts in America.

And it's awful.

Look, not everyone is a gigantic free speech nerd. Summaries and educational materials are going to give complex subjects a bit of a gloss. Understanding the basics, the framework, doesn't require knowing all the nuances.

But summaries of First Amendment law ought not affirmatively misinform.

The U.S. Courts' page offers a list of some things that have been found protected by the First Amendment, and some that have not.

From the "you have this right" column, for instance:

Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
Tinker v. Des Moines, 393 U.S. 503 (1969).

First of all, that's a terrible summary of Tinker, suggesting that black armbands are somehow a special case. Tinker held that the government cannot stop students from symbolic expression without showing that it significantly disrupts or interferes with school. The page compounds the error by equally brief summaries of two post-Tinker cases showing what rights students do not have:

Of students to make an obscene speech at a school-sponsored event.
Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
Of students to advocate illegal drug use at a school-sponsored event.
Morse v. Frederick, __ U.S. __ (2007).

What's the difference? The reader is left to guess. In fact, the Supreme Court has steadily cut back on the student rights articulated in Tinker, because courts' views of rights change over time. You won't get that from this page.

On we go with another unprotected form of speech:

To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”).
Schenck v. United States, 249 U.S. 47 (1919).

Seriously? That's like saying "not all racial distinctions are unconstitutional" and citing Plessy v. Ferguson. Shenck is the low water mark of the Supreme Court's protection of speech. In in the Court upheld jailing people for handing out leaflets opposing the draft during World War One. The Court retreated from that almost immediately. Shenck is bad law, and this is a useless summary of it. The Supreme Court is now very clear under Brandenburg v. Ohio: "incitement" is protected by the First Amendment unless "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Mean analogies on the internet don't count.

To make matters worse, the U.S. Courts drag up Holmes' old "crowded theater" chestnut, often a favorite for people who want to suppress speech but can't think of a specific reason, completely ignoring its context.

Next, the page notes more unprotected conduct:

To burn draft cards as an anti-war protest.
United States v. O’Brien, 391 U.S. 367 (1968).

Once again, that is a terrible summary, almost calculated to give the reader the wrong impression, or at least leave the reader uninformed. The point of O'Brien is that the government can prohibit you from burning your draft card because (1) when speech and conduct are mixed, if the government has a sufficiently strong interest it can regulate the conduct even if it is meant to be expressive, and (2) the law doesn't attack the speech part of the expression because it bans draft-card-burning no matter why you do it. The page's summary implies that the burning can be banned because it is a protest, or at least leaves the matter ambiguous.

I'll leave you with this additional example of what is not protected:

To make or distribute obscene materials.
Roth v. United States, 354 U.S. 476 (1957).

Swell. You might as well say "speech that is illegal is not legal." There are familiar tests for what obscenity is or isn't. They can be articulated concisely. How does this educate anyone?

When the U.S. Courts set out to educate people about our most important and fundamental right, can't they do better than this?

Last 5 posts by Ken White


  1. PonyAdvocate says

    And if the courts themselves seem unable to get explanations of legal concepts right, we might find it in our hearts to be less reproachful (or less contemptuous, at least) towards university chancellors who probably mean well, but who are anthropologists, not First Amendment scholars, and ink-stained wretches working on deadline who misunderstand some subtleties of court rulings, when such folk don't meet the standards of perfection to which we hold ourselves.

  2. says

    PonyAdvocate, if I thought they made any significant effort to get it right, I would see your analogy. But this isn't "misunderstood free speech." This is "half-assed job the morning the paper is due."

  3. Michelle says

    When the U.S. Courts set out to educate people about our most important and fundamental right, can't they do better than this?

    Why would the government WANT the people to be well educated on the subject of "things the government can't restrict or control"?

  4. Josh C says

    I have worked with statistics professionally for years. You should perhaps not rely on my opinions for what is trivially easy, or for what is the bare minimum diligence.
    Your views on law may be similarly compromised.

  5. Chris says

    I agree with Michelle at 10:29.

    Shockingly, as Travis Cocoran has been known to say. government employees in black robes are granting the government more power.

  6. ppnl says

    But was the draft card thing properly decided? From what I understand the draft card was not needed for you to fulfill your duty and so I don't see the government's interest in preventing you from burning it.

  7. says


    If the government wanted citizens uneducated on the law, it seems like they could do a better job than what was linked. For example, if no mention was made of "obscenity," the uninformed would have less understanding than what is listed.

    In other words, the public information is better explained by gross incompetence, not malice.

  8. Pharniel says

    It's a testament to Ken's work that when I read that link I was all "I'm…not a lawyer but I'm pretty sure this isn't right.."

  9. Castaigne says

    When the U.S. Courts set out to educate people about our most important and fundamental right, can't they do better than this?

    Well, I would ask this question: Is it the job of the U.S. Courts to educate people about anything? Is it the job of judges and prosecutors? Is it even the job of private practitioners like yourself?

    My answer would be a very large "NO. It is not my/your job to educate people on the law, if I am not specifically being paid to do so." But that's just my opinion.

  10. PonyAdvocate says

    @ Mr. White

    … this isn't "misunderstood free speech." This is "half-assed job the morning the paper is due."

    Well, perhaps. Do you have any evidence on which to base such a conclusion, beyond just the contents of the publications which you criticized? For example, Chancellor Dirks followed up his first message with a clarification that seemed to mollify you, but I suppose it's possible that while he was composing his first message, he thought to himself, "I may be royally fucking up this First Amendment shit, but I don't care, and maybe nobody will notice if I am." Are you aware of any facts that would lead you to believe this was the case? Or are you perhaps saying that the simple fact that these non-experts get these legal points wrong is ipso facto proof of half-assedness? And if we can call such mistakes by non-experts misdemeanor half-assedness, is a similar mistake by the composer of the Federal Courts web page an instance of felony half-assedness? ;-)

  11. Dan says

    Is it the job of the U.S. Courts to educate people about anything?

    I'd be willing to bet that there are funds appropriated somewhere for the courts to do precisely that, in which case it most definitely is their job. But even leaving that aside, if they're going to do it at all, they should do it with a reasonable degree of accuracy. Even if they don't have any obligation to do this, if they undertake to do it, they need to use reasonable care in doing so.

    The public is generally going to assume that if the Administrative Office of the U.S. Courts is telling them what the law is, they're correct.

  12. Joe Dokes says

    I am not surprised by the pathetic nature of the UScourts.gov website. It has been my experience that many if not most practicing attorneys are ignorant of both Constitutional Law generally and Free Speech Law in particular.

    For example, the local bar association used to send lawyers to the school to talk to students about the Bill of Rights. It was quite sad. As a general rule the lawyers understanding of the Bill of Rights was barely better than that of my eighth grade students. I frequently had to re-teach sections of the Bill of Rights after they left. Finally what I did was ask that the lawyers discuss their area of law. It was frequently fascinating to my students we had good presentations on elder abuse law, maritime law, and divorce law.

    Simply because one is a lawyer does NOT mean they know very much about the Bill of Rights, I've heard lawyers, yes lawyers, argue that Howard Stern should be forced from the air and arrested.

  13. Dan Weber says

    Pharniel, same boat. Merely reading this blog left me saying "no way" to some of those claims at the .gov site.

  14. Pickwick says

    I'd never actually visited the Daily Caller's site before… Even Huffpo, wretched hive of sensation and misinformation, doesn't have quite as many bikini-themed links on the sidebar. Since a site's credibility is inversely proportional to the degree to which it relies on pictures of half-clad women to garner clicks, I feel that the US Courts' website is misrepresenting itself by appearing staid, boring, and not at all racy, while getting so much wrong.

    Seriously, though, the government should just scrap that site, claim eminent domain to seize all of Ken's posts, and make those the foundation for teaching First Amendment rights.

  15. whheydt says

    As regards draft cards (I still have mine)…

    My father said, during the heyday of draft card burning during the Viet Nam war that if I wanted to burn a draft card, he'd be happy to supply his for the task. As he was born in 1910, you can see that his chance of being drafted in the late 1960s was rather remote.

  16. Lagaya1 says

    And the purpose of burning your father's draft card would be to pretend you were exercising your right to protest? I don't get it.

  17. Pickwick says

    Hmm. What if you did see a fire, Loren, and alert everyone to it, thus allowing many to escape when most would have died otherwise… but in the hubbub, you lose track of your draft card, which burns with the theater? What happens then?

  18. Ted H. says

    Clearly written by a bureaucrat in training. Those types tend to lack the capacity to discern nuance.

  19. The Wanderer says

    Loren: I think the idea is that even if there is an actual fire, shouting "Fire!" would still cause a panic, and make it harder for people to actually get out safely due to the simultaneous rush of everyone trying to squeeze through the aisles and doors all at once – and possibly lead to people being crushed in the stampede.

    An announcement like "Due to an emergency, we need everyone to leave for their own safety, as the building is on fire. Please make your way to the exits in an orderly fashion.", would – under that line of reasoning – be preferable.

  20. Aaryn says

    I think the attack on the obscenity example is misplaced. While the USA may have a rather impressive track record for free speech protections (largely unparalleled even), the existence of such a broad and unquestioned exception for obscenity is quite striking to many outsiders. The word Comstockery was even invented to mock the US for this. As far as I can tell, the community standards doctrine for obscenity has not changed so much from the time of Comstock as the community standards have changed.

    The mere fact that obscenity is an exception to free expression in the USA is notable. To conflate obscenity with illegality is a large jump.

  21. tightspotkilo says

    Maybe this is an insurance defense situation. And, sure, AS would have to sign off on any settlement,don't overlook all the other pressures in this arrangement to be brought to bear by the insurer to accept settlement.

  22. hymie says

    My father said, during the heyday of draft card burning during the Viet Nam war that if I wanted to burn a draft card, he'd be happy to supply his for the task. As he was born in 1910

    Um, I thought the "draft card" being burned was your notification that you were being drafted, not your Selective Service registration card. But I didn't live through the era in question, so maybe I'm mistaken.

  23. The Wanderer says

    I never said there weren't problems with the idea – just that I think that's roughly what the line of reasoning was: that shouting "Fire!" in a crowded theater can cause a panic (and danger beyond that due to the fire in question) even if it's true, possibly even more so than if it's false.

    I phrased that hypothetical candidate announcement as something that might be said by a theater employee, for example, asking people to vacate. Though in practice, nowadays, that would probably be replaced by the projectors and sound system cutting off, the fire alarm starting to ring loudly, and the emergency lights (at the emergency exits, if nowhere else) going on.