INTRODUCTION

Dramatis personae

This is a strange cast of characters: Communists, Jehovah’s Witnesses, Ku Klux Klansmen, prison wardens, James Madison, dogged reporters, federal judges, the world’s leading pornographer, a computer whiz, and others. Some of them are First Amendment heroes. Some are First Amendment villains. Some of them are famous; most are obscure. All played a role in a controversy contributing to our modern understanding of freedom of speech.

First Amendment controversies are often started by colorful characters. Many of them are not nice or polite; nor do they have noble motives. They say, or want to say, mean or disturbing things, speech that people don’t want to hear. Some want to speak truth to power, but the powerful want them silenced. Very few people are pure First Amendment heroes, that is, people who want to advance the cause of free speech for everyone. We all say we believe in free speech—in the abstract, or when it’s our own speech or a point of view we agree with. We’re not so sure when it’s speech that expresses ideas that we loathe.

Most would-be First Amendment speakers—people who claim constitutional protection—have their own agendas, and those agendas are often at odds both with majoritarian sentiment and with societal values other than freedom of speech. Nothing is wrong with that: a free country is supposed to work that way.

First Amendment heroism and villainy, as in the rest of life, are about courage and cowardice. The heroes are those who say what they believe, insist on saying it even when people (and governments) don’t want to hear it, and have the courage to face the consequences. Villains are those who want to suppress speech they disagree with or are fearful of, or who give in too easily to competing values and go along with the idea that this is speech people shouldn’t have to hear.

This book is about people who intentionally or accidentally became First Amendment heroes or villains. These are my idiosyncratic selections. Undoubtedly others are worthy of the honor or the badge of infamy. I chose some of the heroes and villains from my personal experience with them, and to that extent this book is a memoir. The book also sums up most of what I have learned from working on and teaching First Amendment cases.

For the last quarter century, I have taught the First Amendment at the University of California at Berkeley, the home of the Free Speech Movement in the 1960s. These days, however, fewer Berkeley undergraduates seem to care about free speech. They seem too ready to embrace the competing values offered to restrict speech, and many seem too respectful of authority in general. Being respectful of authority is of course at war with First Amendment values. We don’t need a First Amendment to protect our right to read White House press releases. We do need one to uncover and disclose abuses of power, to protect speech that most people don’t want to hear, and to debate what kind of country we want to be.

Indifference to how and why we protect civil liberties is distressingly widespread. A recent study found that only half of high school students say newspapers should be allowed to publish freely without government approval of stories. One-third say the First Amendment goes “too far” in guaranteeing free speech. Former Supreme Court Justice Sandra Day O’Connor recently gave a speech lamenting young people’s ignorance of how our fundamental values are protected. She said, “Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do.” O’Connor complained that “Two-thirds of Americans know at least one of the judges on the Fox TV show ‘American Idol,’ but less than 1 in 10 can name the Chief Justice of the United States Supreme Court.” I have tested this in my class, and the situation is a little worse than O’Connor thought: almost all 110 Berkeley students in the class knew the American Idol judges, and only a couple could name Chief Justice John Roberts.

Speech in the United States has always been relatively free, but it has never been an absolute freedom. You don’t in fact have the right to say whatever you want, whenever and wherever. Libel and perjury are pure speech but illegal. Government has always imposed restrictions and always asserts that competing values require suppression of particular speech. For example, the information, if made public, will endanger national security; the hate speech will incite violence; the online sexual material will harm our children; tabloid journalism will destroy privacy, and so on. In other words, every time government tries to restrict speech, it does so in the name of competing values. Free speech is not the only important value in our society. It frequently collides with other values, important interests that we all care about. That’s what makes First Amendment controversies so hard, and so interesting.

The accepted wisdom is that free speech deserves Constitutional protection because it serves three purposes: it advances knowledge and the ascertainment of truth, facilitates self-government in a democracy, and promotes individual autonomy, self-expression, and self-fulfillment. Truth-seeking occurs when everyone can speak freely in a marketplace of ideas, a marketplace in which the government must remain neutral; government can’t be allowed to suppress what it considers bad ideas—we don’t get to the truth by muzzling dissenters. Free speech is essential to self-government, a system in which we the people are sovereign, for we must be able to criticize government and the officials whom we elect to serve us. Bill Clinton once said, wistfully, “It’s almost a citizen responsibility to criticize the President.... Why be an American if you can’t criticize the President?” Free speech makes it possible non-violently to change the government, the laws, and those who govern (just as Watergate reporting brought down President Nixon). Individual self-fulfillment is a basic human value and is good in itself, apart from the utility of free speech in helping to find the truth and in facilitating democracy.

A couple of reminders about the First Amendment: First, only government can violate it. Our Constitution is a series of constraints on the power of government, and government alone. It does not bind corporations, labor unions, churches, or private entities of any kind. No matter how vague and oppressive Facebook’s or Yahoo’s “terms of use” are, no matter how much they restrict free speech, they do not violate the First Amendment. That’s because these corporations are not the government. No matter how much corporations insist on conformity to the corporate “culture” and forbid employees from publicly saying what they think, this does not violate the First Amendment.

People who should know better sometimes fail to understand First Amendment basics: especially that only government is barred from abridging free speech. Sarah Palin got it upside down during the 2008 presidential campaign. Feeling that the mainstream media were unfairly criticizing her for negative statements about Barack Obama (like his relationship with Rev. Jeremiah Wright), she complained, “I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks from the mainstream media.” But the media can’t violate her First Amendment rights, and media “attacks” on political candidates are the exercise of First Amendment rights, not their abridgment. The First Amendment doesn’t protect candidates from press criticism—it encourages it.

Second, what the First Amendment means is what the Supreme Court says it means. The simple text of the amendment (“Congress shall make no law ... abridging the freedom of speech, or of the press”) does not provide the answers to any modern free-speech controversies. The answers come from the Court when it rules on the issues that are brought to it by the parties in concrete cases. The question for the Court in a First Amendment case is whether the particular speech comes within “the freedom of speech” protected by the amendment. This decision essentially involves evaluating whether some competing societal value justifies restricting the speech in question.