Expressions are divided, for First Amendment purposes, into several categories. For convenience, I'll identify the categories this way.
"speech", which is given great protection.
"quasi speech", which is given some protection.
"Non speech", which may or may not be protected.
"Speech" is a technical term. The only way one can learn what "speech" is for First Amendment purposes is to study deeply a whole bunch of Supreme Court cases. I want to focus here on two cases, both involving hateful speech by hateful speakers.
But first I want briefly to get "quasi speech" and "non speech" out of the way.
An example of "quasi speech", as I laid out in my last diary, is a libel published about a public figure. It is not speech entitled to broad First Amendment protection. But it is protected by the First Amendment unless the publisher has knowledge of its falsity or acts with reckless disregard of the truth. New York Times v. Sullivan (1964).
A good example of "non speech" is obscenity, which is not "speech" but which is stll protected from the censor if it does not offend local community standards. Miller v. California (1973).
Now to the two "speech" cases. These are exciting. Fasten your seat belt.
First up is Brandenburg v. Ohio (1969), decided by the Warren Court in the heady days of the late 1960s. If you're offended about corporate political speech (more about that later), you'd really have a problem with Mr. Brandenburg. He was an Ohio Ku Klux Klan leader.
Brandenburg and 11 of his buddies planned to erect and burn a large wooden cross on an Ohio cornfield. So Brandenburg calls a reporter and invites him to come film the affair, which the reporter and a cameraman did.
The State of Ohio prosecuted and convicted Brandenburg under its Criminal Syndicalism statute enacted in 1919.
The case goes up to the Supreme Court, which reverses the conviction on First Amendment grounds, holding that "advocacy of the use of force or of law violation" cannot be proscribed except when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Wow. The Supreme Court siding with the Klan. That's how a lot of the public saw things.
The Warren Court had some most interesting characters. Chief Justice Earl Warren had been a conservative Republican governor of California. Eisenhower elevated him to the High Court figuring he was a good, safe, status quo Justice. Little did Eisenhower know.
When I was growing up in northeast Illinois in the 1950s, I saw signs painted on barns that puzzled me: "Impeach Earl Warren". Only later, in law school, did I come to understand those signs. They were a response to the unanimous Warren Court decision in Brown v. Board of Education (1954).
Another interesting character on the Warren Court was Hugo Black, my personal hero. Hugo Black was an extraordinarily intelligent and perceptive man, who had grown up in Alabama. As a young man, he belonged to the Klan. Later, he turned against the Klan and eventually became a fine Alabama judge.
On the Supreme Court, Hugo Black was the fiercest defender of the First Amendment, a copy of which he carried with him at all times. Whenever he got challenged about his First Amendment decisions -- which happened frequently -- he'd pull out his copy of the First Amendment and begin reading. "Congress shall make no law...."
Knowing these things about Warren and Black is important. They evolved as human beings, moving from hard right to hard but reasonable left. That can happen with the right individual when he or she is given life tenure on the Supreme Court. Of course, we cannot be sure beforehand how a Justice will turn out. David Souter is a classic recent example.
Now to the second case. You think the Klan is bad? How about the Nazis?
The case is National Socialist Party v. Skokie (1977).
When we get to this case -- which tore at America and fractured the ACLU -- we find up is down, right is left, black is white, wrong is right.
The Nazis wanted to march down Main Street in the Village of Skokie, Illinois, where lived a whole bunch of Jews, including many Holocaust survivors. Talk about putting the First Amendment to test.
The State of Illinois enjoined the Nazis from marching. The Supreme Court, in a very brief opinion, held that the Nazis could march. Furthermore, BTW, under some prior Supreme Court decisions, the Skokie police had to protect the Nazis and ensure they could march. (Rehnquist, BTW, dissented.)
There are some different ways to think about the Skokie case. I believe the best way is this: sunshine is the best disinfectant.
In summary, the Skokie Case and Brandenburg establish firmly that government can't ban speech that is hateful simply because it's hateful or because the speaker is full of hate. The government's got to have a whole lot more than that.
To be continued. Now it's your turn.