it."
Earlier in the Vietnam War, an army lieutenant named John Dippel had tried to pin the
Declaration of Independence to the wal of his barracks. This was not permitted by the
commander of the base, and the army's legal office in Washington advised Dippel that he
had no First Amendment right to do this.25
Another Supreme Court decision, in 1980, ruled that a base commander in the military had
a right to approve any written material circulated or posted on the base, saying, "While
members of the military services are entitled to the protections of the First Amendment, the
rights of military men must yield somewhat to meet certain overriding demands of discipline
and duty."26
As popular protest asserted itself powerful y during the Vietnam War and helped bring it to a
close, in the higher reaches of government, democracy itself came to be looked on with
suspicion.
In 1975 Samuel Huntington, a Harvard political scientist and adviser to presidents, wrote a
report for the Trilateral Commission, a group of powerful men from government and
business in the United States, Japan, and Western Europe. Huntington pointed to the
protest movements of the sixties, saying, "The essence of the democratic surge of the
1960's was a general chal enge to existing systems of authority, public and private."
Huntington worried about the United States losing its dominant position in the world and
wrote of "an excess of democracy." He said there might be "desirable limits to the extension of political democracy."27
158
Police Powers and the First Amendment
As we have seen, the national government can restrict freedom of speech in relation to
foreign policy, through judicial reinterpretations of the First Amendment. But what about
state laws restricting freedom of speech or press? For over a century, the First Amendment
simply did not apply to the states, because it says, "Congress shal make no law." The states could make whatever laws they wanted.
And they did. In the years before the Civil War, as abolitionists began to print antislavery
literature, the states of Georgia and Louisiana passed laws declaring the death penalty for
anyone distributing literature "exciting to insurrection" or with "a tendency to produce discontent among the free population … or insubordination among the slaves."
When in 1833 the Supreme Court had to decide if the Bil of Rights applied to the states,
Chief Justice Marshal said that the intent of the Founding Fathers was that it should not.28
Indeed, James Madison had proposed an amendment forbidding the states from interfering
with various rights including freedom of speech, and the Senate defeated it.
Madison's intent seemed final y to become part of the Constitution with the passage of the
Fourteenth Amendment in 1868, which said that no state "shal deprive any person of life,
liberty, or property, without due process of law." But in 1894, someone wanting to make a
speech on the Boston Common was arrested because he had not gotten a permit from the
mayor as required by city law. When he claimed that the Fourteenth Amendment now
prevented any state from depriving persons of liberty, including freedom of speech, the
Supreme Court ruled unanimously that the mayor could "absolutely or conditional y forbid
public speaking in a highway or public park," that the Fourteenth Amendment did not affect
the "police powers" of the state.29
This was a localized version of the national security argument for limiting freedom of
speech, and it prevailed until 1925. In that year, 137 years after the ratification of the
Constitution, the Supreme Court final y said that the states could not abridge freedom of
speech, because of the Fourteenth Amendment.30 However, this stil left freedom of speech
as something to be balanced against the "police powers" of the states. In the years that
fol owed, the balance would sometimes go one way, sometimes another, leaving citizens
bewildered about how much they could depend on the courts to uphold their rights of free
expression.
For instance, in 1949, after Chicago police arrested Father Terminiel o, an anti-Semitic
preacher who had attracted an angry crowd around his meeting hal , the Supreme Court
ruled that the Terminiel o had a First Amendment right to speak his mind, and the fact that
this excited opposition should not be used as an excuse to stop his speech. It said that one
"function of free speech under our system of government is to invite dispute."31
Shortly after that, however, Irving Feiner, a col ege student in Syracuse, New York, was
making a street corner speech from a smal platform, denouncing the mayor, the police, the
American Legion, and President Truman, when one of his listeners said to a policeman
standing by, "You get that son-of-a-bitch off there before I do." The policeman arrested
Feiner, and the Supreme Court upheld the arrest, saying this was not free speech but
"incitement to riot," although the tumult and excitement around Terminiel o's speech had
been far greater than in Feiner's case.32
The uncertainty continues. In 1963 the Supreme Court overturned the arrest of 187 black
students assembling peaceful y on the grounds of the South Carolina state capitol to protest
racial discrimination.33 But three years later when a group of civil rights activists
demonstrated peaceful y on the grounds of a Tal ahassee jail, the conviction was upheld.
Justice Hugo Black said for the majority that people do not have a constitutional right to
protest "whenever and however and wherever they please."34
159
The right to distribute leaflets on public streets has been affirmed by the Supreme Court on a number of occasions, even when the street was privately owned, as in 1946 when the
Court upheld the right of Jehovah's Witnesses to distribute their literature in a company
town.35 It affirmed this conclusion (that when privately owned areas are open to public use,
the First Amendment protections are not surrendered) in the 1968 case of union members
distributing handbil s about their labor dispute at a shopping mal .36
Four years later, however, when a group of people were arrested in a shopping mal for
distributing leaflets against the Vietnam War, the Court said they were properly arrested.
What was the difference between this case and the other? The union people, the Court said,
were expressing themselves about an issue connected with the shopping center. But the
Vietnam War had nothing to do with the shopping center, so those people had no First
Amendment right to express themselves.37
For a long time, the public has been led to believe in the magic word precedent. The idea is that the courts fol ow precedents, that if a decision has been made in a case, it wil not be
overturned in similar cases. Lawyers and judges understand however, what laypeople often
do not, that, in the rough-and-tumble reality of the courts, precedent has as much solidity
as a Ping-Pong bal . Al a court has to do is to find some difference between two cases and it has grounds for giving a different opinion.
In other words, judges can always find a way of making the decision they want to make, for
reasons that have little to do with constitutional law and much to do with the ideological
leanings of the judges. I would suspect that the decision against the Vietnam leafleters had
m
uch more to do with the justices' feelings about the war than with the fact that the
shopping mal was not itself involved in the war.
What of the First Amendment rights of high-school students? Here again we find such
conflicting decisions as to make us very dubious about the strength of the First Amendment.
In the sixties, the Supreme Court said that school officials in Iowa could not prohibit
students from wearing black arm bands to protest the Vietnam War. It said, "We do not
confine … First Amendment rights to a telephone booth or the four corners of a pamphlet or
to supervised and ordained discussion in a school classroom."38
We might have expected after this (if we had retained our innocence about the power of
precedent) that the Court would not al ow high-school officials to censor student
publications. But in 1988, it ruled that a high-school principal in a suburb of St. Louis could
cut out two pages of a student newspaper to eliminate stories on teenage pregnancy and on
the effects of divorce on children.
The Court, straining to show the difference between this and the Iowa black arm band case,
said, "The question whether the First Amendment requires a school to tolerate particular
student speech … is different from the question whether the First Amendment requires a
school affirmatively to promote particular student speech."
As it had done in the case of soldiers speaking their minds, the Court found that students
were not the same as ordinary citizens in their rights. "The public schools do not possess al
of the attributes of streets, parks, and other traditional public forums." So the First
Amendment, shaky enough for ordinary citizens, is even more feeble when the issue is the
right of free speech of soldiers, foreigners, and high-school students.
To this list of groups exempt from the usual protections of the First Amendment we must
add another: prisoners. In a decision that at first glance looked like a rejection of the right
of prison authorities to read and censor the mail of prisoners, the Supreme Court said that
the state of California could not do this … except when the prison officials decided it was necessary for reasons of security. In other words, it left the issue up to the same people
who wanted the censorship in the first place.39
160
The point in al this recounting of cases is that citizens cannot depend on the First Amendment, as interpreted by the courts, to protect freedom of expression. One year the
Court wil declare, with inspiring words, the right of persons to speak or write as they wish.
The next year they wil take away that right.
A cloud of uncertainty hovers over how the Supreme Court wil decide free speech cases.
Nor is there any guarantee, if you decide to exercise your right of free expression by
speaking in public or distributing literature, that the Supreme Court wil even hear your case on appeal. It does not have to take appeals in free speech cases, and your chance of getting a hearing in the Supreme Court is about one out of eighty.
A young black man named Charles MacLaurin learned this by hard experience in the year
1963. That summer, he addressed a group of fifty black people in front of the courthouse in
Greenvil e, Mississippi, protesting the arrest of several young black people who had been
demonstrating against racial segregation. It was a peaceful meeting, in which MacLaurin
criticized the conviction and urged that blacks register to vote to deal with such injustices. A
police officer told McLaurin to move on. He said he had a right to speak and continued. He
was arrested, charged with disturbing the peace and resisting arrest, found guilty by the
local court, sentenced to six months in jail, and this was affirmed by the Mississippi
Supreme Court.
When he appealed to the U.S. Supreme Court, he discovered the rule that most citizens
(who grow up hearing again and again from some aggrieved person: "I'l take this to the
Supreme Court!") don't know: Four of the nine justices must agree to take a case (in
technical terms, to grant certiorari). Only three Supreme Court justices voted to take
MacLaurin's case. By now, it was 1967, and so, four years after his conviction, he went to
prison.
An even more serious problem with the First Amendment is that most situations involving
freedom of expression never make it into the courts. How many people are wil ing or able to
hire a lawyer, spend thousands of dol ars, and wait several years to get a possible favorable
decision in court. That means that the right of free speech is left largely in the hands of local
police. What are policemen likely to be most respectful of—the Constitution, or their own
"police powers"?
I was forced to think about this one day in 1961 when I was teaching at Spelman Col ege
and several black students showed up at my house to talk to me about their plan to go into
downtown Atlanta to distribute leaflets protesting racial segregation in the city. They wanted
to know from me, who taught a course in constitutional law, if they had a legal right to
distribute leaflets downtown.
The law was plain. A series of Supreme Court decisions made the right to distribute leaflets
on a public street absolute. It would be hard to find something in the Bil of Rights that was
more clear cut than this.
I told my students this. But I knew immediately that I must tel them something else: that
the law didn't much matter. If they began handing out leaflets on Peachtree Street and a
white policeman (al police were white in Atlanta at that time) came along and said "Move!"
what could they do? Cite the relevant Supreme Court cases to the policeman? "In Lovel v.
Griffin, sir, as wel as in Hague v. C.I.O. and Largent v. Texas …"
What was more likely at such a moment, that the policeman would fal prostrate before this
recitation of Supreme Court decisions? Or that he would finger his club and repeat, "Move
on!" At that moment the great hoax in the teaching of constitutional law, the enormous
emphasis on the importance of Supreme Court decisions, would be revealed. What would
decide the right of free expression of these black students in Atlanta in 1961, what would be
more powerful—the words in the Constitution, or the policeman's club?
161
It wasn't until I began to teach constitutional law in the South, in the midst of the struggle against racial segregation, that I began to understand something so obvious that it takes
just a bit of thought to see it, something so important that every young person growing up
in America should be taught it: Our right to free expression is not determined by the words
of the Constitution or the decisions of the Supreme Court, but by who has the power in the
immediate situation where we want to exercise our rights.
One of those immediate situations is the street. Another is the workplace.
Free Speech on the Job
As we have seen, for more than a hundred years it was only Congress that was forbidden by
the First Amendment to curtail freedom of speech and press. Then in 1925 the Supreme
Court wrote freedom of speech into the Fourteenth Amendment and ruled that states could
not violate that freedom. But nothing in the Constitution says that private employers may
not limit the free speech of their employees.
Not many Americans distribute political pamphlets or speak on street corners
, but most
Americans work for employers, in situations where to speak their ful minds might result in
losing their jobs. And while political speakers might have recourse to the courts—weak as
that protection is—speakers on the job have no constitutional support.40
In 1971 a man named Louis Mclntire, who had worked for sixteen years as a chemical
engineer with the DuPont Corporation in Texas, published a novel cowritten with his wife
that satirized a chemical company. After the book came out, he was fired. He could sue for
damages, but he had no constitutional right to his job.
David Ewing, an editor of the Harvard Business Review, discussing this case in The Nation wrote, "Corporate employees do not enjoy, and have never enjoyed, such basic guarantees
of the Bil of Rights as free speech, free press and due process of law—at least, in activities
that concern their employers."41
Staughton Lynd, a distinguished young historian and a professor at Yale University, visited
North Vietnam shortly after the United States began its massive intervention there. He was
a strong opponent of our government's actions. Shortly after he returned from his trip, he
lost his job at Yale and, despite his impressive record as scholar and teacher, had such
difficulty getting another teaching position anywhere that he left the profession and, in his
forties, went to law school.
It was clear that his statements on the war, his opposition to American policy, his visit to,
North Vietnam, and his writings had resulted in his being, in effect, blacklisted in his chosen
profession. We had been col eagues together at Spelman Col ege, and when I was a
professor at Boston University, I suggested to a member of the history department that
they consider Staughton Lynd to fil a vacant faculty position. A senior member of the
department said to me, "Oh, Lynd. I was on his doctoral committee at Columbia. A bril iant
young man. But no, there's no point in our proposing him. He wil never make it through the
administration."
When Lynd had finished law school and went to work for a firm of labor lawyers, he wrote a
little booklet addressed to working people to give them simple advice on labor law. The
booklet started off with the suggestion: "You don't need a labor lawyer." When the book