The First Amendment, the Rule of Law, and American Democracy


“We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

–Justice William Brennan, 1964


Brennan’s words capture the essence of the First Amendment’s guarantee of free expression. Remarks may sometimes offend if harsh, and may reveal information that some want to keep private. It is undeniable, however, that freewheeling and civil debate of contemporary social and political issues comprises the foundation of a democratic order: the people’s right to know what their elected leaders are or are not doing when they hold public office. This principle forms the core of the rule of law. And yet, no matter how much we revere the First Amendment’s guarantee of these freedoms, they are not absolute. 

The constitutional evolution of free speech and a free press has been a Supreme Court undertaking mainly over the past 100 years. The key to understanding the First Amendment is that restrictions on speech and the press depend on the legal concept of “state action”: This means that when a law or a public official limits speech or the press, the offended party may undertake a legal challenge in court.

An early case reached the court in 1919. Charles Schenck, a Socialist, objected to America’s entry into World War I, and urged young men to resist the draft, claiming their service benefited only wealthy capitalists. Arrested for violating the Espionage Act of 1917, still in effect today, Schenck was sentenced to 10 years in prison. Affirming his conviction, a unanimous court ruled that the courts must defer to the government during wartime, even when constitutional rights are at issue.

In the aftermath of Schenck’s ordeal, several radicals, socialists, and communists faced prison terms for advocating their radical ideas in violation of federal or state laws. In 1966, David Paul O’Brien exhibited his opposition to the Vietnam War by burning his draft card on the steps of the South Boston Courthouse. Two years later, the court upheld his six-year conviction, ruling that the government possesses the constitutional authority to decide how to raise a military force. Conscription was a government choice. Young men cannot resist when they receive their draft notice.

Not all expression objecting to U.S. policy led to prison terms. Like O’Brien, two youngsters and their friends in 1965 engaged in symbolic speech by wearing black armbands to school to show their distaste for the Vietnam War. Their principal suspended them, but the court overturned their suspension, holding that “it can hardly be argued that either students or teachers shed their constitutional right to freedom of speech at the schoolhouse gate.” Subsequent cases narrowed student speech rights if school decorum was in danger of disruption, including that of a student speech that contained sexual allusions (the speaker was suspended), or a student-written newspaper running articles that contained inappropriate stories about teenage pregnancy and divorce (they were deleted).

In 1984, when Greg Johnson burned an American flag outside the Republican National Convention in Dallas to protest Reagan administration policies, Texas authorities charged him for violating a law — making it a crime to desecrate the flag. The court overturned his conviction, ruling that Johnson’s “expressive conduct” displayed pure political speech. “If there is a bedrock principle underlying the First Amendment,” Brennan wrote, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Concurring, Justice Anthony Kennedy detested the idea of flag burning, but wrote, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.” Every few years Congress reviews a constitutional amendment to overrule this decision. If ratified, it would amend the First Amendment for the first time.

The court has enforced the principle that the people have a right to know what their government is or is not doing. Fifty-five years ago, the justices ruled that if “public figures” (vaguely undefined) sue a newspaper because of negative reporting about them, they bear the burden of proof to demonstrate that the material was published with “reckless disregard of the truth.” Eight years later, in the Pentagon Papers case, the court adopted an old English common-law principle that the government could not stop the media from producing material even when classified top secret. This principle, known as the doctrine of no prior restraint, means that once journalists or anyone else has information, they may publish it in a paper or post it online.

The justices also decided that the First Amendment does not guarantee pornography and obscenity, but what about “offensive” words? In 1968, during the height of the Vietnam War, a young man was arrested in a Texas courthouse for disturbing the peace because the back of his jacket bore the words, “Fuck the draft.” With one of the most conservative members of the court writing, Justice John Marshall Harlan overturned his conviction and famously ruled, “One man’s vulgarity is another’s lyric.”

The broadcasters of a program by the provocative political satirist George Carlin weren’t so fortunate. The Federal Communications Commission cited the owner of a radio station when Carlin in midafternoon addressed “the seven words you cannot say on television,” which were, and the court quoted them fully, “shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.” The Court decided that in the interest of protecting children and the privacy of the home, radio stations must air such “offensive” and “indecent” language only in the late evening.

More recently, the court entered the realm of campaign financing. The question was whether the First Amendment protects a person who contributes money to a candidate. Put simply, does money “talk”? In the 1970s and 1980s, the justices understood that large financial contributions in campaigns lead to undue influence and access. They made attempts to limit such contributions, especially from the very wealthy. Later more conservative justices ruled otherwise.

In 2008, when Hillary Clinton was campaigning for the Democratic nomination for president, a group called Citizens United made a negative film attacking her. Under campaign finance law, a corporation underwriting a film like Hillary: The Movie could screen it only 30 days or more before a primary election, and 60 days or more before a general election. Citizens United sued the Federal Elections Commission. Five justices eased several restrictions, holding that no one has ever proved that large amounts of corporate money in politics gave “rise to corruption or the appearance of corruption.” In other words, influence, even undue influence, is acceptable. To prove corruption, a plaintiff must demonstrate that a corporation bribed a candidate for some tangible reward: A large amount of money was paid in exchange for favorable legislation or a high position in government.

The 2010 Citizens United decision led to the rise of super political action committees (super PACs). Sometimes unidentified wealthy contributors, as a matter of expressive conduct, said the justices, may donate as much money as they wish to these organizations. While they legally cannot coordinate their activities with political campaigns, they can support positions that a candidate espouses, or challenge those their opponent adopts.

In 2014, the court held that federal law does not limit the aggregate amount of money that an individual may contribute to all campaigns in a two-year period. 

The total was once set at $217,000. A bare majority of justices lifted the maximum amount, ruling that no evidence demonstrated corruption or the appearance of corruption when an individual gave money to as many candidates as he wished throughout the nation.

It is unremarkable to observe that large financial contributions greatly influence elections. According to the Center for Responsive Politics, at of the end of March 2019, overall contributions to super PACs for the 2020 presidential campaign totaled an astounding $1,567,304,432.

One result has been the transformation of federal congressional and state legislative districting. The Constitution empowers the states to design congressional districts. Once one political party gains control of the state legislature, that party controls the layout of congressional districts. This ensures one party dominates when it comes to presidential elections, because the number of electors in each state consists of the two senators plus the total number of members in the House of Representatives. Most recently, in 2000 and 2016, the electoral, not the popular, vote led to a successful presidential campaign.

Republicans have been much better at “partisan gerrymandering,” as it is called, than Democrats. The term “gerrymander” derives from Massachusetts Gov. Elbridge Gerry’s 1812 creation of a weird-shaped state Senate district to keep his party (Republican) in power. Elkana Tisdale of the Boston Gazette drew an editorial cartoon showing the long, slithery district as a grotesque salamander with the heading, “The Gerrymander: A New Species of Monster.”

In the past, the Supreme Court has found that gerrymandering based on race violates the equal protection clause of the Fourteenth Amendment. But a bare majority of conservative justices have consistently ruled that partisan gerrymandering is a political issue best reserved to politicians, not judges.

This is now a subject of two Supreme Court cases, which ask whether partisan gerrymandering denies First Amendment rights of free expression and association to the losing side. In Maryland, where Democrats control districting, and North Carolina, where Republicans do, the court must decide whether a legal standard can manage partisan gerrymandering. Maryland redistricted a longstanding Republican representative out of office in 2012, and North Carolina, which is about evenly split between Democrats and Republicans, currently sends ten Republicans and three Democrats to Congress. Lower courts concluded in the Maryland case that Republicans “have sufficiently demonstrated that Maryland’s 2011 redistricting law violates the First Amendment by burdening both the plaintiffs’ representational rights and associational rights based on their party affiliation and voting history.”

The Supreme Court will decide the cases by July 1.

The First Amendment is rooted in the American democratic order as one of the great bulwarks of freedom to preserve the rule of law. The greatest challenge free expression faces today comes not from the judiciary, but the executive branch.

President Donald J. Trump has described the press as the “enemy of the people” whenever he dislikes stories about himself and his administration. He wants to weaken libel laws to allow him to win lawsuits against those who criticize him or his policies. He took the heretofore unheard-of step of banning a CNN reporter from the White House press office after he asked Trump tough questions. White House press conferences have essentially become extinct. Trump has called the press a “disgrace,” decried its “false, horrible, fake reporting,” and proclaimed it was “out of control.” He has proclaimed reporters to be “very dishonest people,” and concluded that their coverage of him is “an outrage.” He called the New York Times “a failing newspaper,” stated that CNN was “terrible,” and BuzzFeed “garbage.”

Trump has used the most vulgar language to attack his critics, and has threatened to remove broadcast licenses of various media outlets whose reporters file stories critical of him. Presidents do not possess this power. Worst of all, he has praised autocrats like Russia’s Vladimir Putin, Hungary’s Viktor Orbán, Egypt’s Abdel Fattah el-Sisi, the Philippines’ Rodrigo Duterte, and others like them who have successfully silenced their critics.

The list of the president’s attempts to undermine the First Amendment and the rule of law is extensive. But as Brennan put it, civil public debate must sometimes be “uninhibited, robust, and wide-open.” It may well include “vehement, caustic, and sometimes unpleasantly sharp attacks” on public officials. These may even include criticism of those who occupy the highest offices in the land.


Jack Fruchtman, a seasonal Aquinnah resident, has recently published the third edition of his book, The Supreme Court and Constitutional Law.

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