Defining Freedom of Expression and the Supreme Court (Part Two): Fighting Words, Libel, Hustler Magazine, Public Schools and Symbolic Speech


Jerry Falwell, who unsuccessfully attempted to sue Hustler Magazine in 1988, establishing that parody is protected speech.

This is part two of an examination of the limits of freedom of expression established by key Supreme Court decisions.  Please read the first part here.

Over two decades after the Schenk decision, the U.S. Supreme Court ruled on a case relating to “fighting words” – words spoken at close range in intent to provoke physical action.  In November 1941, a man by the name of Walter Chaplinsky was arrested for calling a Rochester, New Hampshire police officer a “damned fascist” and a racketeer on a public street in close proximity to the officer.[1]  While he was fined and not imprisoned, Chaplinsky appealed the ruling on the grounds that his rights to freedom of speech were violated.  In Chaplinsky v. New Hampshire (1942) the Supreme Court reached a unanimous decision upholding the New Hampshire law. The Supreme Court established a precedent that speech, “likely to provoke the average person to retaliation, and thereby cause a breach of peace”[2] is not constitutionally protected.  While freedom of speech is hallmark to any democracy, the Supreme Court has determined that fighting words do not need to be constitutionally protected because they can potentially bring disorder to society.

In the turbulent 1960s, several important cases involving the freedom of expression were appealed and argued before the U.S. Supreme Court.  In New York Times v. Sullivan (1964), an elected police commissioner sued the New York Times for an advertisement in their paper that was critical of police in Montgomery, Alabama.  The advertisement made a series of statements about police treatment of civil rights leaders, some of which were not factual.  Despite the fact that he was never mentioned by name, L.B. Sullivan felt the article libeled him because to be critical of the police was to, in turn, be critical of the commissioner.  A case without precedent, Sullivan’s lawsuit against the New York Times traveled all the way to the Supreme Court.

Sullivan’s lawsuit was symbolic of something much greater at the time.  “Many Southerners bitterly resented northern efforts to promote civil rights of African American in the South.  To many in Alabama, the New York Times symbolized all that they disliked.”[3]  Rather than have the case tried in New York (as that is where the New York Times was based), Sullivan had the case tried in the Alabama Supreme Court.  Sullivan was awarded a sum of a half million dollars based on Alabama’s libel law.  Disagreeing with the ruling, the New York Times appealed the ruling to the U.S. Supreme Court – an unprecedented action at that time because state law had always handled libel cases.[4]

Unlike the Alabama State Supreme Court, the U.S. Supreme Court ruled 9-0 in the New York Time’s favor.  In the eyes of the justices, the factual errors that were made in the advertisement were of “mere negligence and not actual malice.”[5]  Their ruling set two precedents.  First, the Supreme Court set a precedent that in order to be guilty of libeling public figures, there had to be a deliberate attempt to publish falsehoods or show a “reckless” disregard for the truth. Second, overturning the Alabama Supreme Court, the U.S. Supreme Court Justices applied the First and Fourteenth Amendments (capitalize?) to determine that states cannot award damages to a public official without proving “actual malice.”

The Supreme Court affirmed the precedent set forth in the Sullivan case when famous minister and political commentator Jerry Falwell sued an adult magazine for emotional distress caused by an explicit parody.  In Hustler Magazine v. Falwell (1988), the court upheld its standard relating to public figures by a unanimous 8-0 ruling.  In its ruling, the court affirmed the “actual malice” precedent, noting that public figures cannot sue for emotional distress caused by pieces which do not present themselves to be factual in nature.  While freedom of expression certainly has limits (especially with private citizens) the Supreme Court has established broader rights to criticize and parody public officials in order to maintain a free press.  The Falwell ruling also paved the way for the protection of ‘fair use’ of copyrighted material in the case of Campbell v. Acuff-Rose Music, Inc (1994).  The two cases have afforded “wide latitude to parodists, emphasizing the irrelevance of the judge’s personal view of whether the parody is offensive or distasteful.”[6]  The Supreme Court’s “actual malice” precedent has been expanded to include parody of public figures and their works, allowing the creators of such works First Amendment protection.

Fifty years after the Schenk ruling, the “clear and present danger” test was revisited in the case Brandenburg v. Ohio (1969).  Clarence Brandenburg was a local Ku Klux Klan leader who gave an inflammatory speech at a Klan rally in the state of Ohio.  Advocating vengeful acts against racial minorities and making negative statements about various government officials, Brandenburg was arrested under Ohio’s criminal syndicalism law.  The law made it illegal to advocate, “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and also made it illegal “to teach or advocate the doctrines of criminal syndicalism.”[7]  Convicted and sentenced to a one year prison term, Brandenburg’s appeals took him all the way to the U.S. Supreme Court, with his counsel believing the Ohio law was in violation of his First Amendment right to free speech.

Ohio’s law was a Red Scare era piece of legislation, similar to the Schenk decision.  The Brandenburg case would be an examination of the “clear and present danger: precedent set forth by the Schenk decision years ago.  By a vote of 8-0, the court ruled in Brandenburg’s favor, declaring the Ohio law unconstitutional.  While radical speech had previously been protected by Yates v. United States (1957), the justices decided to reevaluate the methodologies for limiting radical speech.  In their Per Curiam decision (a decision where the author or the majority opinion is anonymous), the court favored a new test relating to speech.  The opinion said “speech can be prohibited if it is directed at inciting or producing imminent lawless action” or if it is “likely to incite or produce such action.”[8]  Since Brandenburg’s speech did neither, his conviction was overturned. Since the Brandenburg case, speech is now evaluated based on its propensity to manufacture “imminent lawless action” limiting government’s ability to regulate and punish radical or unpopular speech.

There have been a series of cases that have established important precedents related to symbolic speech and the First Amendment.  In the case Tinker v. Des Moines Independent School District (1969) three school age children (including two whose last names were Tinker and were the plaintiffs in the case) were suspended from their Des Moines, Iowa schools for protesting the Vietnam War by wearing black arm bands during the school day. After hearing of the incident, the Iowa Civil Liberties Union convinced the Tinker family to file suit in the local United States District Court.  While the court maintained it was within the school and school board’s power to suspend students in this instance, appeals were filed that eventually led the case to the U.S. Supreme Court.

After hearing the facts of the case, the justices decided in a 7-2 decision that the students had a right to symbolic speech.  Since the petitioners were “quiet and passive” and their speech did not infringe upon others rights, the justices decided students should be allowed to exercise the Free Speech Clause of the First Amendment.  Furthermore, the court ruled that to prohibit such speech was a violation of the First and Fourth Amendments.

The Tinker case is unusual in regard to schools.  While its ruling allowed for symbolic speech at school, subsequent cases have allowed schools to restrict student speech.  In the case Bethel School District v. Fraser (1986) the court ruled that schools had the right to punished students for inappropriate speech at a school event.  Two years later, the Supreme Court also ruled 5-3 that schools have the right to restrict what is published in school newspapers in Hazelwood School District v. Kuhlmeier (1988).  While the Tinker case determined that symbolic speech was extended to schools, it is important to note that most rulings involving free speech have favored school officials in order to maintain order in a school setting.  Speech and press cannot be limited for speeches sake.  “School officials must have a compelling justification to curtail student’s freedom of expression.”[9] While the courts have demonstrated that schools operate under a different set of rules than the rest of the society, it does not give schools free reign to censor expression without cause.

Since Tinker, the U.S. Supreme Court has protected most forms of symbolic speech.  However, in United States vs. O’Brien (1968) the Supreme Court upheld the conviction of David O’Brien for burning his Vietnam draft card.  O’Brien publicly burned his draft card in Boston, MA in the proximity of FBI agents.  A congressional act had made draft card desecration a crime.  While O’Brien appealed his conviction based on his First Amendment rights, the Supreme Court supported his conviction based on the fact that the cards were considered government property.  However, the draft card ruling remains unique.  In the last fifty years, the United States has not instituted a draft, making it difficult to revisit the precedent set by the O’Brien case.

Perhaps the most controversial form of symbolic speech in the United States is flag desecration. Since the early 20th century, a majority of the states have had laws banning desecration of the flag. In April 1967, a televised Vietnam Protest in Central Park featuring a flag burning, sparked modern interest in a federal flag desecration law.[10]  A year later, U.S. Congress passed the Federal Flag Desecration Law (1968) that could result in a fine or jail time for anyone who “knowingly casts contempt upon any flag of the United States by mutilating, defacing, defiling, burning, or trampling upon it.”[11]  While the U.S. Supreme Court saw a few cases related to flag desecration in the 1960s and 1970s, it was not until 1989 when the court would have to make a formal ruling on the legality of the action as symbolic speech.

During the 1984 Republican National Convention, Gregory Johnson set a flag on fire outside of the convention to protest American nuclear arms buildup.  Johnson was convicted under Texas law, fined, and sentenced to one year in jail.  Although Johnson’s conviction was overturned by the Texas Court of Appeals, the state of Texas formally asked the U.S. Supreme Court to hear the case in order to establish national unity on the subject.[12] In Texas v. Johnson (1989), the court ruled by a vote of 5-4 that flag desecration was expressive conduct protected by the First Amendment.  In the opinion of the court, Justice William Brennan’s Jr. wrote, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[13] It was the court’s opinion that regardless of how flag burning made some feel, the fact that it did not create “imminent lawless action” meant that it was protected speech under the First Amendment.

In dissent, William Rehnquist wrote that the flag is a “visible symbol embodying our nation…millions and millions of Americans regard it with an almost mystical reverence.”[14]  Shortly after the Johnson ruling, an attempt was made to create a Constitutional amendment that allowed the Congress and states to ban the desecration of the flag.  After the amendment was defeated in the Senate, Congress adopted the Flag Protection Act in 1989 that made it lawful to punish those who “mutilate, physically defiles, burns, maintains on the floor, or ground, or tramples” upon the U.S. flag.  The new act was submitted for review to the U.S. Supreme Court.  In the court’s ruling, the law was struck down in a 5-4 decision known as United States v. Eichman (1990).  Since the Eichman ruling, there have been numerous attempts to pass a flag burning amendment.  Despite the fact that up to 80% of people polled have supported such an amendment[15], a proposed amendment has never made it out of Congress.

Friday: Defining Freedom of Expression and the Supreme Court (Part Three)

[1] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), (accessed June 5, 2013),

[2] Ibid.

[3] Overbeck and Belmas, 22.

[4] Ibid., 27.

[5] New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (accessed June 5, 2013).

[6] Lisa M. Babiskin, “Oh, Pretty Parody: Campbell v. Acuff-Rose Music, Inc,” Harvard Journal of Law and Technology vol 18 no. 4 (Fall 1994): 193. (accessed June 5, 2013).

[7] “Brandenberg v. Ohio,” The Oyez Project at IITChicago-KentCollege of Law, (accessed June 5, 2013).

[8] Ibid.

[9] Fred C. Lunenburg. “Do Constitutional Rights to Freedom of Speech, Press, and

Assembly Extend to Students in School?,” FOCUS On Colleges, Universities & Schools 6, no. 1 (December 2011):5. Education Research Complete, EBSCOhost (accessed June 5, 2013).

[10] John R. Vile, “Flag Desecration”, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2002, 2nd. Ed.  (Santa Barbra, CA:  ABC CLIO Inc., 2003), 198.

[11] Ibid.

[12] “Texas v. Johnson (1989),” Landmark Cases of the Supreme Court, (accessed June 5, 2013).

[13] Ibid.

[14] Ibid.

[15] Richard D. Parker, “Flag Desecration Should Be Restricted,” Civil Liberties: Opposing Viewpoints. Ed. Roman Espejo (Farmington Hills, MI: Greenhaven Press, 2009), 78.

5 thoughts on “Defining Freedom of Expression and the Supreme Court (Part Two): Fighting Words, Libel, Hustler Magazine, Public Schools and Symbolic Speech

  1. Pingback: History For Free | Defining Freedom of Expression and the Supreme Court (Part One): Introduction and Early Cases

  2. Pingback: History For Free | Defining Freedom of Expression and the Supreme Court (Part Three): Nixon, Obsenity, Adult Content, the Internet, and My Conclusions

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  4. Touche. Outstanding arguments. Keep up the amazing

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