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?
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
- Update on The Popehat Podcast - November 30th, 2016
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- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016