Sunday, March 2, 2014

The value of “verbal tumult, discord, and even offensive utterance”

I wrote last week about our school board’s proposal to require members of the public who speak at board meetings to show “respect and decorum” and to prohibit them from making “abusive, harassing, bullying, discriminatory, or lewd” remarks. Defenders of the proposal have argued that some speakers have been too “caustic” and that the board should engage in “moderation” to ensure that other speakers are not “intimidated,” “to make sure all voices are heard.” (See Karen W.’s post here.)

The policy itself is framed almost entirely in terms of protecting the sensitivities of the listeners and the people who are spoken about, with many references to ensuring a “positive,” “safe,” “civil,” “dignified,” and “respectful” environment. The policy makes no mention of protecting the First Amendment rights of members of the public. Nor does it make any mention of the great value of dissent and criticism in the policy-making process. Nor does it acknowledge the inherent dangers of allowing a government body to decide what is or isn’t acceptable speech.

I want to quote a portion of a case called Cohen v. California, which the U.S. Supreme Court decided in 1971. I’m not arguing that this case applies directly to the board’s proposal; there are many potentially relevant distinctions between the two situations. Instead, I’m quoting the case because it does a particularly nice job of explaining the good reasons for tolerating political speech that makes people uncomfortable.

For readability, I’m omitting the court’s citations; you can read the full opinion here. I’ve also boldfaced some passages for emphasis.
This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.

Appellant Paul Robert Cohen was convicted [of violating a statute that] prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct. . . .” He was given 30 days’ imprisonment. The facts upon which his conviction rests are detailed in the opinion of the [lower court], as follows:

“On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words ‘Fuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.” . . .

Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. We think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.

At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions [such as obscenity and “fighting words”], discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” and why “so long as the means are peaceful, the communication need not meet standards of acceptability” . . . .

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.”

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.
I don’t doubt that there is some conduct the board could permissibly prohibit. I do doubt the board’s ability to write a policy that singles that conduct out. I especially doubt the board’s ability to apply such a policy in a viewpoint-neutral fashion. But what worries me most is that the rationale for broad protection of speech, expressed so well in Cohen, seems to be lost on much of this board. (Board member Tuyet Dorau has been the notable exception.)

Schools are, as a rule, authoritarian and undemocratic institutions. It’s hard to have faith in their ability to prepare your kids for life in a democracy. Elected school boards, on the other hand, are the most democratic element of the system. It’s awfully disappointing, then, when the elected school board’s policy on public speakers makes no mention, and reflects no recognition, of the importance to democracy of free speech.


Karen W said...

I just don't see the public policy-making upside of silencing critics/negative public comments at school board meetings. Enduring a few minutes of foolish or unmoderated speech (if there is, in fact, such speech occurring at board meetings) is surely a small price to pay for all members of the community being free to speak their minds if they choose to participate in public comment.

Julie VanDyke said...

Chris, I like this one:
"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. [n4] Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. Thus, a State might, in the exercise of its police power, make any trespass upon the [p378] land of another a crime, regardless of the results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this Court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed, unposted, wastelands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly."
BRANDEIS, J., Concurring Opinion
Whitney v. California 1927

Julie VanDyke said...

Never thought I'd be citing this one:

"Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. [...] The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. [...] By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each."

---Anthony Kennedy, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (Opinion of the Court).