First Among Equals (10 page)

This was, the Court had often said, the basic role of free speech: protecting the unpopular, even shocking, expression of views. Expression of opinion (and dissemination of information) in an open, robust way without fear of governmental censorship or sanction lies at the foundation of a democratic society. Freedom of speech ranks very high on the scale of constitutional concerns. Without “freedom of speech,” a democratic society cannot exist.

Sure enough, the Court remained exactly where it had been in
Texas v. Johnson.
Flag-burning, the Court reiterated, was an expressive act, and it communicated a political message in an especially powerful way. That's what the First Amendment's protection of “the freedom of speech” was all about: the protection of messages, including those conveyed in symbolic forms. Looking back, I could see that Bill Kunstler was destined to win and that my arguments on behalf of the statute's constitutionality were bound to fail.

Of course I did not know how the case would go as I began my argument. Pitching my case to Justice Harry Blackmun, then in his waning years on the Court, I cited opinions that he had joined in his early days as a justice (then newly appointed by President Nixon), opinions suggesting that flag-burning could be outlawed by Congress or the states. But he had been in the majority in the Texas case, and quickly enough he saw what I was doing. Saying nothing, he looked down at the podium where I was fielding questions and trying to weave in my arguments. He had a slight, almost mischievous smile of amusement. Seeing that I was directing my argument to him, the octogenarian justice telegraphed a message without saying a word. “I'm not buying” was his unspoken message. The new law, passed by an earnest Congress trying to navigate around the broad language in
Texas v. Johnson,
was doomed. The statute was pronounced unconstitutional by the same 5-4 margin. No justice had shifted.

The Court remained as deeply divided over flag-burning as it had been the year before. Once again the usual philosophical lines among the justices broke down as the raw emotions triggered by flag desecration seemed to color the way the justices saw the constitutional issue. The ideal of judging is, again, to try hard to set aside one's own emotions and predilections. But it's easier said than done. Justice John Paul Stevens, during the course of my courtesy call on him as the incoming solicitor general, mused that the voting pattern in the Texas case was perhaps more a product of generational attitudes than anything else. That is, the older members of the Court (Justice Stevens himself included) had rallied around the principle that the singularity of the flag—as the symbol of the nation and its unity—warranted an exception to the general rule of First Amendment protection of symbolic speech. Justice Blackmun, it seemed, was the older-generation exception who proved the rule of First Amendment free speech. The prohibition against government censorship exists to protect the unpopular, and even extreme, opinion.

Flag-burning presents perhaps the most vexing test of the rights of society as against the interests of the individual in engaging in highly offensive “speech.” The outpouring of emotion in the wake of the terrorist assaults on the World Trade Center and the Pentagon in September 2001 highlighted the unifying effect of the flag, particularly in times of crisis and war. In that light, that this sort of overwhelmingly offensive activity enjoys First Amendment protection attests to the strength of the free-speech principle. If the principle can survive in this setting, and it did twice (and once in the face of a popular congressional set of protections), then it is a powerful principle indeed. Its sweep is grand, protecting virtually all communications in modern life with few exceptions symbolized by Holmes's graphic example of shouting “Fire!” in a crowded theater.

It is not only a powerful principle but also one, thanks to the Court, that reaches deeply into and broadly throughout American life. We have come a long way from the early days of the Republic when Congress passed the patently unconstitutional Sedition Act, which criminally punished criticism of government officials.

By its terms, the First Amendment provides only that
Congress
shall make no law “abridging the freedom of speech.” This limitation appears to mean that the states could do as they please with “the freedom of speech.” But early in the twentieth century the Court said that the states, too, are bound by the First Amendment. This ruling meant that governments at all levels would have to obey what the Court ruled substantively about freedom of speech. Thus did the reach of the First Amendment go all the way down to the tiniest part of local government. At the same time as the Court obligated the states, it also began interpreting the freedom of speech as well as the related provisions guaranteeing the freedom of press and the rights of assembly and petition. In other words, the Court started to put flesh on some fairly bare bones—the words of the First Amendment itself.

Case by case, with a number of these decisions by the Warren Court, the trends—generally libertarian— emerged. The Court broadened the meaning of protected speech, finding, for example, that it was not only what the Court called “symbolic expression” or “expressive conduct.” The Court also found that protected speech didn't have to be about politics and elections, as the founding generation had thought of it, but could be about many other things. Indeed, as the cases in their entirety show, they could be about almost everything. Thus, in the 1977 case of
Abood v. Detroit Board of Education,
the Burger Court could fairly observe, “It is no doubt true that a central purpose of the First Amendment was to protect the free discussion of governmental affairs. But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexclusive list of labels—is not entitled to full First Amendment protection.”

Around the margins of expression, the Court sometimes said no. In 2000, for example, the Rehnquist Court said that the First Amendment did not protect from government regulation nude dancing in a commercial establishment. It was not that this activity had no First Amendment protection as a form of expression, but it was sufficiently removed from core free-speech concerns that government could regulate it in the interest of public morality and decency.

Such cases as this duly noted, the Court's decades-long march has been toward greater protection for a wide array of expressive activity. Issues involving our system of self-government merit the highest level of protection, but the First Amendment's sweep is vast, encompassing the full range of human expression—save for a small category of patently antisocial speech or communication, such as “fighting words” and obscenity.

In the process, the Court demonstrated a deepening reliance on the principle of
equality.
That is, government should treat similarly situated individuals and groups alike. “Thou shalt not discriminate” is the moral underpinning of not only equal protection but also of free speech. Almost a Golden Rule of constitutional law now embodied in First Amendment jurisprudence is this: Do unto others as you would have them do unto you.

Equality has proved a powerful tool in deciding free-speech questions, a strongly unifying principle in the Rehnquist Court years. For example, the Court has considered whether certain disfavored voices or perspectives, while not being prohibited, may nonetheless be treated differently from other speech. Overwhelmingly, the Court has upheld the claims of those who have been excluded from “speaking” by well-meaning but mistake-prone government officials. (We explore these cases later in the chapter.) Equality principles have carried the day in these and other cases. The High Court often has had to overturn a contrary lower court judgment. Indeed, lower federal courts have been somewhat slow to understand equality's power.

One issue where equality's power has been especially evident involves speech with religious content. Government officials know enough to permit political or social groups to speak on an equal footing. It won't do to say that Naderites are in but conservative groups are out. But the harder question is whether religious voices may be excluded from a forum—a place for speaking—provided by a government trying to maintain church-state separation. How, in other words, does the ban on “establishment” of religion fit with the free-speech guarantee?

State and federal judges alike have struggled with what seemed to them an Establishment Clause-free speech riddle. Courts around the country tilted strongly toward keeping speech with religious content out of the public forum. Their reasoning has been grounded in the Establishment Clause's requirement of separation of church and state. The relevant words of the First Amendment are simple but not immediately self-evident: “Congress shall make no law … respecting an establishment of religion.” Yet, time and again, the Supreme Court has disagreed with and overruled state and lower federal courts. Speech with religious content, the Court has held, is simply another category of speech; it cannot be favored or disfavored.

This development began in
Widmar v. Vincent,
a 1981 case decided during Warren Burger's tenure as chief justice. A student Christian group at the University of Missouri at Kansas City wanted to hold a Bible study on campus. Their position, in effect, was this: “We're just like scores of other student groups, each with its own identity and purpose. Don't treat us differently. We only want the same treatment—access to campus—as anyone else.” The university balked, and then refused. The reason, the university said, was that to allow a religious student-organization to meet on campus would run afoul of the Establishment Clause. Advised by university counsel, officials claimed they had an interest of the highest order—what the law calls a “compelling interest.” The interest was that of avoiding a potential violation of the Constitution. Free speech, including the closely related freedom to associate, collided with the First Amendment mandate that church and state be separated.

The case was pending before the Court while I was on a trip to the University of Missouri at the main campus in Columbia. I was serving at the time in the Reagan administration as counselor to Attorney General William French Smith and found myself on occasion being asked to comment on cases pending in the Supreme Court. During a campus radio interview, I was asked about the case arising on the sister campus in Kansas City and how I thought the Court would decide the matter.

Predicting case outcomes is perilous at best, but this time I managed to find the right answer. The key, I said to the interviewer, was equality and nondiscrimination. No law-abiding student group should be excluded from using campus facilities. The state university would in no sense be “establishing” religion by allowing student groups to assemble freely. I went on to say that the students’ rights under the Free Exercise Clause, also part of the First Amendment, were in danger if the university officials insisted on excluding their group while allowing numerous other student organizations to meet on campus.

So it was that, Justice Sandra Day O'Connor, newly on the Court, joined forces with Justice Lewis F. Powell, Jr., in a strong majority opinion condemning the university's effort to exclude the faith-based group. What UMKC had done in the name of separation of church and state was unconstitutional. Having opened its doors to a wide variety of groups, more than 100 in all, it could not refuse groups that wanted to meet to discuss religious topics; Religious speech, including prayer and Bible study, represent forms of protected speech. Groups engaging in such speech, said the Court, may not be excluded while other organizations are permitted to meet and “speak.” With
Widmar
equality became, virtually overnight, the great organizing principle of freedom of speech.

The Court was shy of being unanimous by only one vote—Justice White's. Yet its message, although completely clear, didn't sink in. University and school administrators around the country did not change their ways. Harry Truman once said about presidential power: “I give orders, and nothing happens.” As time went on, the justices displayed frustration that public officials—and lower courts—weren't getting the straightforward message: Treat all groups, and speakers, alike. Don't target religious groups and deprive them of equal opportunity to meet and speak. This simple rule embraced the nondiscrimination principle, which is so familiar in other contexts. Once government establishes a “forum,” a place where speech and assembly can take place, then it may not discriminate against certain views or perspectives. This basic rule of fair play was obvious in the political and ideological arena.

The difficulty, of course, lay in the First Amendment's ban on “establishing” religion. Couldn't a university permit all groups on a nondiscriminatory basis to meet—save for religious ones? Doesn't the establishment ban mean that a university may, and perhaps must, exclude certain groups?

The answer was no.
Equality
trumped
separation of church and state,
in part because permitting a group to meet on campus does not somehow turn a university itself into a chapter of that group. The “speech” and “assembly” of a group, whether political, social, or religious, are activities of the students, not the university. This is individual choice, an act of religious liberty. This was the kind of distinction that a first-year law student is trained to draw.

Distinctions count, and thoughtful analysis is necessary in order to draw reasoned, sensible distinctions. Even so, lower courts kept coming up with the wrong answer. Long after
Widmar
had been settled, schools and communities across the country kept posting “Do Not Enter” signs in the way of those planning to engage in religious speech.

Illustrative of the problem was the case of
Lamb's Chapel v. Center Moriches,
decided by the Rehnquist Court in 1993. A Long Island school district, like UMKC a decade earlier, told leaders of an evangelical church in the community, Lamb's Chapel, that they could not use school facilities after hours to show a film series of lectures by the well-known Christian psychologist James Dobson. The series, titled “Turn Your Heart toward Home,” focused from a Christian perspective on the traditional family and the importance of parental involvement in the rearing of children. In excluding Lamb's Chapel from using the facilities, the Long Island school officials made It plain that there was nothing wrong with the film series. No “obscenity” or “fighting words,” well-established categories of “unprotected” speech, were to be found in the films; indeed, to many the films were inspiring and uplifting. But the officials said, in essence, “We can't allow Dobson's programs onto school property after hours because the film series is religious in content.” Meanwhile, a wide variety of groups were permitted to make use of school facilities. To the school authorities, keeping out religious groups was what separation of church and state required.