The Freedom of Speech
Stevens, John Paul, The Yale Law Journal
Throughout history the seeds of intolerance have produced injustice and conflict. In Rouen, France in 1431, a nineteen-year-old woman who wore men's clothes, who fought bravely in the French army, and who insisted that she communicated directly with God, was burned at the stake after she was found guilty of witchcraft and heresy. In Salem, Massachusetts in 1692, Samuel Sewall, a Harvard graduate, a devout man, and a duly elected judge, found nineteen persons, mostly women, guilty of witchcraft(1) - a capital offense punishable by hanging.(2) Today the weeds of intolerance poison the relations between neighbors in all parts of the globe - in Northern Ireland, in the Holy Land, in Bosnia, in Eastern Germany, in Azerbaijan, and in some parts of the United States. It seems appropriate, therefore, to ask why (or perhaps even whether) the First Amendment of our Constitution should afford extraordinary protection to the apostles of intolerance.
That it does in fact provide such protection is demonstrated by two cases decided by the Supreme Court earlier this year. In Dawson v. Delaware,(3) the Court held that the State had violated the First Amendment by introducing evidence that the defendant was a member of a white racist gang known as the "Aryan Brotherhood" to convince the jury that he deserved the death penalty for robbing and murdering a white woman. Dawson, the Court found, had a constitutional right to associate with others holding similar intolerant beliefs.(4) Because Dawson's membership had no connection with the crime he had committed, and did not rebut any mitigating evidence that he had offered,(5) the trial court erred by allowing the jury to base a death sentence, in part, on the fact that Dawson had engaged in constitutionally protected conduct.
In R.A.V. v. City of St. Paul,(6) the Court held that a juvenile, who apparently was also a white racist, could not be prosecuted under the city's Bias-Motivated Crime Ordinance(7) for burning a cross on the property of an African-American family. Without condoning the defendant's actual conduct or the message of intolerance that it conveyed, the Court held that the city ordinance violated the First Amendment because it was under-inclusive - that is to say, it did not abridge enough speech. More precisely, the Court concluded that the ordinance was "facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses."(8) In other words, while the use of fighting words to express hostility "on the basis of political affiliation, union membership, or homosexuality"(9) remained permissible, the ordinance unconstitutionally singled out for prohibition expressive conduct that might provoke violence "on the basis of race, color, creed, religion, or gender."(10)
Early in its opinion in R.A.V., the Court noted that "[f]rom 1791 to the present"(11) our society "has permitted restrictions on the content of speech in a few limited areas,"(12) but explained that the scope of those categories had been narrowed by our decisions since the 1960's. The opinion, however, has little to say about the development of First Amendment law before 1960, and does not pause to quote the text of the Amendment adopted in 1791. Because this is the first lecture in a series that is intended to focus on that Amendment, it seems appropriate to refer to the Amendment's text, and to the three dimensions of the immunity that it establishes, before discussing the categorical rule against subject matter regulation that R.A.V. announced.
The First Amendment contains a single sentence that reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.(13)
There are three dimensions to most, if not all, immunity rules. …