Freedom of Expression in the Marketplace of Ideas

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Douglas M. Fraleigh & Joseph S. Tuman

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    Preface

    Few can approach a subject like free expression without any context or experience for it in their own lives. Most of us will understand this best when our free expression has been reduced to something less than free. When we first discussed writing this book, we shared two experiences that informed our understanding of the topic. These experiences were individual to each author. For one of us, it was a reminiscence of childhood, and the memory of a young boy who spent one day in the principal's office being punished for “daring” to speak out at a school assembly, asking why members of a local city council (none of whom rode bicycles) had never bothered to ask students for their input before making new rules prohibiting the riding of bicycles in the downtown area.

    A second memory came to one of us not as a child and a student, but as an adult and a teacher, at a faculty workshop on “avoiding legal liability.” Here, an administrator encouraged a young professor and his colleagues to take action if a student's speech offended other students. When asked if a student who was sanctioned for his or her speech would not then have a case against the university on First Amendment grounds, the administrator summarily dismissed the concern, stressing only a desire to avoid any lawsuits.

    Many of you reading this will have likely faced questions about your own freedom to express yourself at some point in your lifetime. In truth, many different kinds of experiences and issues in contemporary life present questions about freedom of expression—even in ways that may not be quite so obvious. For example, as this manuscript was being completed in July of 2009, a Harvard University professor was arrested for disorderly conduct and breach of the peace after quarreling with a Cambridge police sergeant who had responded to a call reporting a possible break-in at the professor's home in Cambridge. The professor—Henry Louis Gates, Jr. — is a famous scholar of African-American history. The arresting officer—Sergeant James Crowley—is a veteran and a well-respected officer of the Cambridge Police Department. Responding to an eyewitness report of a possible breaking and entering, Sergeant Crowley encountered Professor Gates and went inside his home. In the exchange between the two men, Professor Gates grew agitated and upset at being compelled to prove he lived in a house he owned. He wondered aloud if Sergeant Crowley's insistence that he produce identification owed to his racial identity. His words became more harsh and critical, and Crowley told the professor he was going outside, and that if Gates wanted to follow suit, they could continue their conversation there. When Professor Gates stepped out onto his porch and continued loudly castigating the Cambridge police officer for what he believed to be a kind of racial profiling, Sergeant Crowley arrested him for breach of the peace.

    In the days following the high-profile arrest, President Obama unwittingly stepped into the controversy when answering a reporter's question at a press conference that was supposed to have been devoted to health care. The president said that the police department and Sergeant Crowley had “acted stupidly” in arresting Professor Gates after the latter had proved that he lived in the home. The arrest and the president's comments escalated the conflict and demonstrated how much race relations continue to be a powerful and sensitive issue in the United States. In trying to get past the conflict, but also to learn something from the event, the president suggested we might use this as a teachable moment for understanding race relations.

    Obscured in this discussion, however, were several questions that spoke less to the issue of racism and more to the subject of this book: freedom of speech. The president was correct in suggesting the matter provided a teachable moment; it could also be a teachable moment for examining how the First Amendment was implicated in a number of ways. For example, in the media frenzy that followed this story, Sergeant Crowley was sometimes characterized as a racist. His reputation was clearly damaged by these allegations. Having those allegations mediated over news media and within social networking media raised the specter of slander and defamation. Equally so, if Professor Gates's comments to Sergeant Crowley had been of the sort that might invite a violent response, they might be labeled “fighting words.” Fighting words are usually seen as an exception to the First Amendment—meaning they are not constitutionally protected free speech.

    On the other hand, Sergeant Crowley is a police officer—and we ordinarily expect law enforcement officials to possess a higher tolerance for rude and provocative speech than we expect from a private citizen. Moreover, Professor Gates's comments came within the privacy of his own home. The Supreme Court has long recognized an expectation of privacy in both one's own body and one's home or place of residence. If Gates was going to say something provocative or in anger, shouldn't he have been free to do so in the privacy of his own home?

    Perhaps Sergeant Crowley understood this—because he didn't arrest Professor Gates until they were both outside his home. The Supreme Court has also recognized that we all give up some of our interest or expectation of privacy when we enter public areas. In this case, the arrest report indicated that several police officers (both Harvard University and Cambridge Police) were outside, along with the woman who had called in the initial report. Supposedly they could hear the professor still speaking in anger to Sergeant Crowley. Crowley was technically within the law to arrest Gates for disorderly conduct and breach of the peace because Gates had raised his voice and others were present. Disorderly conduct and breach of the peace laws are usually applied at the discretion of the arresting officer—but did it make sense to suggest here that the other officers and the lone woman had had their “peace” disturbed simply because Professor Gates was agitated with Sergeant Crowley? Might it perhaps have been the case that Crowley (who does not appear to be a racist in any way) arrested Gates because he didn't like being spoken to that way? In the words of public defender Michael Wilson, was Gates arrested for being “in contempt of cop?”

    The fact that the charges against Gates were shortly dismissed answers the question above in many respects, and also demonstrates how this teachable moment was probably less about race and more about free speech—or punishment for the same.

    Why are we passionate about freedom of speech? After three decades of experience in the study and research of law, it is our belief that members of a self-governing society must carefully consider a wide variety of perspectives on the issues that it confronts, and that freedom of expression enables these diverse viewpoints to be expressed. The dignity of each individual requires that he or she be empowered to decide which ideas to communicate.

    As you will read in this text, from ancient times to the present, monarchs, authoritarian leaders, and even democratically elected officials have asserted that they can control expression because they have an understanding of the truth and an accurate sense of when speech is dangerous to society. In reality, these leaders have generally limited expression in order to promote their own self-interest, maintain their hold on power, or facilitate the tyranny of the majority. Leaders lack the ability or motivation to serve as honest brokers when deciding whether to sanction communicators. Therefore, their ability to limit speech must be carefully circumscribed.

    In the United States and other modern nations, the judiciary has often played a critical role in protecting freedom of speech. You will read many examples of judicial opinions that protect free speech in this book. However, you should also be aware that public opinion also has a significant influence on free expression rights. Throughout history, when the public has insisted on liberty of expression, even in times of national crisis, it has been difficult for the government to maintain restrictions. Conversely, in the absence of public support, governments are emboldened to limit this right. It is our hope that, as members of society, students will become advocates for freedom of expression rights, even for communicators with whom they disagree.

    In creating the second edition of this book, we wanted to demonstrate how free speech and expression issues could be seen in a wide variety of circumstances, while being careful to explain how the Supreme Court and other lesser courts have treated these issues historically. We were also mindful, as with the case concerning Professor Gates and Sergeant Crowley, that people will often filter questions about the practicality, effect, and fairness of laws concerning speech through the filters of their world views and experience. To that end, we have organized this new edition in the following ways.

    First, we have divided our approach to freedom of speech into different sections, attempting as comprehensive a look as possible at the range of issues implicated by this freedom. These include a section on the historical origins of free speech, another on limits justified by “protecting society,” one for categorical exceptions to free expression, and a final section dealing with content-based regulation of speech. This approach is both comprehensive and contemporary, with emphasis on subjects that should be of special interest, including extensive treatment of campus free-speech issues, as well as special concerns for technology and expression in cyberspace. It is our belief that readers will learn more when the topics they study involve issues they are familiar with in their everyday lives. New to this second edition is greatly expanded material on fighting words and true threats, obscenity and child pornography, as well as new chapters on privacy and the First Amendment, access to information, copyright law, and international perspectives on freedom of expression.

    Second, in each chapter we offer readers an opportunity to explore judicial opinions that have determined the meaning of freedom of speech and the First Amendment. It is our judgment that readers become active learners by reading for themselves the case law, as well as informed commentary and analysis from others. In this way we hope to demystify free speech law for readers, encouraging them to begin grappling with the complexities offered by each case.

    Third, to provide a thorough theoretical grounding in the subject, we also introduce readers to the philosophical justifications for freedom of speech and counterarguments for speech constraints. Mindful of the need to avoid public misconceptions (for example, the misconception that freedom and free expression are unique to Western culture), we also offer readers a review of the history of free expression in the United States and in other countries and cultures.

    Fourth, and by choice, we attempt to illuminate the complexity of these issues and encourage readers to think critically about them by using a “marketplace of ideas” metaphor for freedom of speech. We do not advance the claim that free market capitalism is the best economic system (and therefore we need a system of expression that is analogous to a free market); this text is not premised on an economic analysis of the law. We do, however, believe that this metaphor aids the reader in visualizing a world where the exchange of ideas is unrestrained. While we consider other possible explanations of free speech, we believe this metaphor serves as the best tool for this purpose.

    We also want to encourage readers to use their critical thinking skills in developing their vision of an ideal system of expression. Readers will not simply be presented with the current law for free expression and asked to assume this is what the law ought to be. In addition to learning what the law is, readers will be exposed to differing viewpoints as to what the law should be, and challenged to develop their own perspectives.

    At the same time, however, we are not eager to encourage readers to dismiss their own memories and experiences with freedom of speech issues. Such experiences provide valuable context for understanding the nature of free expression. In that spirit, we have carefully worked to select examples that provide readers with a comprehensive review of freedom of speech, while at the same time picking examples that hopefully will be familiar and meaningful to most who read this book.

    This book is also designed to be accessible to a wide range of readers, with each chapter offering both a cross-section of case law and analysis designed to provoke inquiry and discussion. In that spirit, we have been careful to provide enough case law to comprehensively satisfy those who want more than an outline of a case, while providing enough of our own analysis and questions to demystify the law for those who may find its study inhibiting.

    We do not pretend to suggest that this effort will resolve all controversies and questions surrounding freedom of speech. In point of fact, most of these issues must be judged case by case, and so this book may at best only result in provoking thoughtful questions and inquiry on the part of the reader. But if we accomplish this much we will be justified, for, as James Thurber once wrote, “It is better to ask some of the questions than to know all of the answers.”

    Acknowledgments

    We could not have completed this book, of course, without the very significant assistance of several friends and colleagues. Special thanks are offered to the following people who kindly reviewed this manuscript: Bernardo Alexander Attias, California State University Northridge, Leonardo Ferriera, University of Miami, Samuel A. Terilli, University of Miami, and Terri Toles-Patkin, Eastern Connecticut State University.

    We also appreciate the valuable comments and suggestions of the following people who kindly reviewed an earlier edition of this text: Nicholas Burnett, California State University, Sacramento, Haig Bosmajian, University of Washington, Tim Gallimore, University of Missouri, Ann Gill, Colorado State University, John Gossett, University of North Texas, Franklyn S. Haiman, Northwestern University, Sean Patrick O'Rourke, Vanderbilt University, Tom Schwartz, Ohio State University, Paul Siegel, Gallaudet University, and Anita Taylor, George Mason University.

    Additional thanks are owed to acquisitions editor Todd Armstrong, editorial assistant Nathan Davidson, and executive vice president Alison Mudditt at SAGE Publications for shepherding this project through to a second edition.

    Freedom of Expression in the Marketplace of Ideas is a product of a friendship that began at the 1977 Governor's Cup Speech and Debate Tournament in Sacramento, California, and blossomed through our law school years at Boalt Hall, University of California, Berkeley. It has been particularly rewarding to have the opportunity to collaborate on a topic we are so passionate about teaching. We would like to thank our families for their love and support during this project. In particular, Doug would like to thank his wife, Nancy, along with Douglas, Whitney, Kammi, and Kodi. Joe would like to thank his wife, Kirsten, for love, patience, and the critical eye that saw things in the manuscript he sometimes missed.

    D. M. F.
    J. S. T.

    List of Court Cases

  • About the Authors

    Douglas M. Fraleigh is a professor and chair of the department of communication at California State University, Fresno. A three-time chair of the Western States Communication Association Free Speech and Legal Communication Interest Group, he has taught freedom of expression for two decades. He also teaches in the university's Smittcamp Family Honors College.

    Professor Fraleigh's publications and papers include diverse free expression topics including Internet regulation, hate speech, defamation, free speech in occupied nations, academic freedom, political communication, and international perspectives. He holds a doctorate in law from the University of California at Berkeley, and served as associate editor of the California Law Review. Before going to Fresno, he taught and coached debate at Cornell, California State University at Sacramento, and University of California at Berkeley.

    Joseph S. Tuman (J.D., Boalt Hall, University of California at Berkeley; B.A., political science, University of California at Berkeley) is professor of political and legal communications at San Francisco State University, where he regularly teaches upper-division courses in freedom of expression, political communication, rhetoric and terrorism, argumentation and advocacy, and technology and human communication. A past recipient of the Jacobus tenBroek Society Award for Teaching Excellence, Professor Tuman has also taught at the University of California, St. Mary's College, the New School for Social Research, and Paris II, which is the top law school in France.

    He has written extensively about freedom of expression, and was the principal drafter of the NCA's amicus brief before the Supreme Court in Reno v. ACLU. Professor Tuman is the author of numerous books, including Communicating Terror: The Rhetorical Dimensions of Terrorism, 2nd ed. (Sage 2010) and Political Communication in American Campaigns (Sage 2008) His work has been featured in news publications such as the New York Times, Los Angeles Times, and the San Francisco Chronicle, and he has served as a network analyst on politics and law for news programs on ABC, NBC, CNN and CNN International, FOX, and the BBC. In 2009, he received an Emmy nomination for his political commentary. He currently appears as a regular political commentator for CBS in the western United States.


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