Court Protection on Freedom of Expression

The decisions in R.A.V. v. City of St. Paul, Socialist Party v. Skokie, Cohen v. California, Texas v. Johnson, U.S. v. Eichmann, and Virginia v. Black all share a common denominator: court protection of freedom of expression. In each of these cases, from 1971 to 2003 and with two different supreme court justices, it doesn’t matter how distasteful the expression, the Court voted – often divided – to protect it.

I think the Court has a firm grasp on the importance of a free exchange of ideas in each of these cases. I find it interesting that in each of these court cases, the chief justice at the time was in the dissent.

In Cohen v. California, with Chief Justice Burger dissenting, Justice John Harlan writes,

“States cannot censor their citizens in order to make a ‘civil’ society… People bring passion to politics, and vulgarity is simply a side effect of a free exchange of ideas – no matter how radical they may be.”

If this went the other way, I would fear my Christian beliefs might be considered offensive to some, making my expression limited. It is a slippery slope and I am glad I can exercise my Christian faith in an open exchange of ideas.

I don’t want someone with more influence censoring what I can and cannot say. I welcome challenges to my beliefs. When beliefs are challenged, we grow.

Things get heavier eight years later in Socialist Party v. Skokie when the National Socialist Party announces its march through the village of Skokie. Without considering long-term consequences, it would be difficult to rationalize how the Court could protect the right to wear a Nazi uniform and bear the symbol associated with gross racial hierarchy in years prior. SCOTUS, in these decisions, recognizes the connection between free expression and a vibrant democracy.

Even under media scrutiny, the Court still says we don’t need the government to dictate truth. 

This mantra is most prominent in the highly scrutinized flag burning cases. People got emotional with these decisions, baffled that the Court “sided with flag burners.” I think it is particularly ironic that there was so much pandemonium, and people wanted more regulations for the flag – the symbol of American freedom. Even President Trump mentioned outlawing flag burning.

As Justice Anthony Kennedy said,

“The flag protects even those who hold it in contempt.”

Because the majority of Americans support a ban on flag burning, Congress considered various flag protection amendments. I would note what Justice Antonin Scalia said,

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

If this were not the case, a constitutional convention would certainly be underway. We can’t change the constitution with our changing society unless there is compelling interest. It would weaken its authority.

In the first flag burning case when the unusual majority votes in favor of Johnson, the flag burner, Kennedy says the flag “is constant in expressing beliefs,” and that the case “forces recognition of the costs to which those beliefs commit us.”

Soon after Congress passes the Flag Protection Act of 1989, the Court strikes it down as unconstitutional in U.S. v. Eichmann, once again the telling decision reinforces the Constitution’s clear First Amendment protections.

Two years after Chief Justice William Renquist votes twice against flag burning, he joins the majority in a decision to protect cross burning in R.A.V. v. City of St. Paul and again in Virginia v. Black. Justice Clarence Thomas argued that cross burning should never be protected by the First Amendment based on its historical association with terrorism, but the Court once again votes for more freedom to express.

In all of these cases, SCOTUS rules that the government cannot strike down the expression of an idea because they find it distasteful. With the exception of a breach of peace, the Court is revealing a trend in its decisions on freedom of expression. The hard choices they face on the bench are bound by the Constitution, not society. In a marketplace of free ideas, some say the best will emerge.

SOURCES: Wikipedia: “Cohen v. California,” “National Socialist Party of America v. Village of Skokie,” “Texas v. Johnson,” “U.S. v. Eichmann,” “Virginia v. Black,” “R.A.V. v. St. Paul”


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