“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and, as it did here, inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” — Chief Justice John G. Roberts Jr., Snyder v Phelps (2011).
“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Miss Constitution would have you, the reader, take in deeply this statement by the Chief Justice. Other countries try and ban or do ban what is deemed hurtful or hateful speech. America does not. Our Founders and the interpretation of the US Constitution by the US Supreme Court asks us to counter hurtful or hateful speech with counter-speech. There is tremendous pressure by forces within the United Nations to neuter this fundamental concept of our system. In the current Israeli/Palestinian public policy debate, hurtful anti-Semitic speech on university campuses has been the source of a riveting Congressional hearing along with the revelation that the Presidents of Harvard, the University of Pennsylvania, and MIT are not familiar with fundamental 1st Amendment Free Speech principles.
The following are some of the relevant cases decided by the Supreme Court of the United States regarding this most important Liberty against government suppression.
Cases involving parameters of protected speech itself:
Barron v Baltimore (1833) – the Bill of Rights, the first ten amendments to the US Constitution applies to the federal government only. The 1st Amendment Free Speech Clause then, that protects speech involving public policy from government interference, would only apply to actions by the federal government, not state governments.
Gitlow v New York (1925) – the Supreme Court ruled that 1st Amendments Free Speech protections now apply to state governments under a judicially created Incorporation Doctrine.
Stromberg v California (1931) – signs and symbols are “speech” for purposes of 1st Amendment analysis.
West Virginia Board of Education v Barnette (1943) – speech cannot be forced; no public school can force students to say the Pledge of Allegiance, for instance.
Brandenburg v Ohio (1969) – public policy speech can be banned if it would incite “imminent lawless action.”
Watts v United States (1969) – to be banned speech must be a “true threat” not an exaggeration. To determine whether a true threat analysis should be begin with context.
Miller v California (1973) – not all profanity rises to obscene speech that can be banned. If offended, look away. Obscenity must be excessively lewd, excessively vulgar, and/or lacks any artistic value.
National Socialist Party of America v Village of Skokie (1977) – hateful speech is protected unless it is a threat to an individual.
Snyder v Phelps (2011) – see above quote from the Chief Justice. Hurtful speech on public policy is protected from government interference by the 1st Amendment to the United States Constitution.
Texas v Johnson (1989) – flag burning is symbolic speech.
Reno v ACLU (1997) – online speech is regulated by social media companies.
United States v Alvarez (2012) – speech does not necessarily have to be truthful.
Creative LLC v Elenis (2023) – website businesses cannot be forced to create messages that they do not believe in.
Cases involving time, place, and manner restrictions:
Hill v Colorado (2000) – restrictions must be narrowly tailored.
City of Lakewood v Plain Dealer Publishing (1988) – fees for permits must be reasonable.
Cases involving threats to an individual:
R.A.V. v City of St. Paul (1992) – burning a cross on a private yard is a threat to an individual and can be banned symbolic speech.
Chaplinsky v New Hampshire (1942) – speech that amounts to “fighting words” may be banned.
What does the above mean relative to current anti-Semitic speech on campuses around the country?
It means that colleges and universities that accept taxpayer funds are “government actors” and subject to the 1st Amendment Free Speech Clause relative to express or symbolic speech on public policy regardless of whether the speech is hurtful to some. It also means that these same colleges and universities can implement reasonable time, place, manner, and forum restrictions regarding this speech or ban it if it would cause immediate lawlessness or threaten a person. If all reasonable rules are followed, however, these government actors cannot censor this speech and must protect the speakers. The Constitution supersedes any campus set of rules.
How do these Supreme Court opinions correspond to Constitutional principles?
The Constitutional principle in play is the notion that free dialogue and debate on matters of public policy should be open and all views heard if government actors (federal or state) are involved. What the Presidents of the Ivy-League schools might have said is that while the speech of the pro-Palestinian protests is Constitutionally protected, their schools, under their leadership, have encouraged diversity of viewpoint in hiring faculty or in selecting speakers, so that counter-speech to antisemitism is available to all. These school policies, if they had been implemented, would honor both the spirit of the Constitution and the reputations of their schools. Unfortunately, none of the Ivy-League Presidents now under a microscope ever thought of this type of diversity.