Are there Any Pro-First Amendment Cases?

My citation of the previous Supreme Court cases was designed to show (conclusively, I think) that the text of the First Amendment has basically been made irrelevant by the decisions of the Supreme Court.

However, critics will make the following argument: "Sure, the Supreme Court has made some bad decisions. All courts do. But out of over 15,000 decisions by the Court, you have picked only a relative handful that make the Court 'look bad'. Well, anyone can do that, and anyone can do the contrary: we could have picked another set of cases that make the Court 'look good', so what have you proved? You have painted a distorted picture of the Court, and you have unfairly disparaged what is actually, though not without some minor flaws, a great institution."

Wow! Sounds like a powerful argument. Did I really unfairly disparage the Court? Did I "stack the deck" against the judges of the Court, when, in fact, these judges are just "human" after all, prone to make mistakes just like the rest of us?

After all, no one's perfect! Anyone can reach a bad decision now and then. By placing these cases one after the other, and by omitting the many, many cases in which the Court has let individuals go free on one charge or another, it could be plausibly maintained that I have unfairly and unconscionably distorted reality. That would make my view of the Court's policies erroneous, and me a hypocrite, since I've made the self-same accusation against the Court.

Well, there is some truth to these arguments. In my citation of the cases, you will find none of the classic "pro-free-speech" decisions of the Court, the decisions our social studies teachers (the ones who blithely walk by the ABA posters on hallway bulletin boards) cite when they want to show how the Court is out there in the trenches battling for our rights.

In my defense, I could argue that I have only scratched the surface, and left out a great many Supreme Court decisions that further demonstrate the point I'm seeking to assert. [1] I could also argue that I have cited only one of the many, many anti-rights cases involving other amendments, such as the Fifth, Sixth, Eighth, etc. which would add some pretty compelling confirmation of my central argument from different domains. And, I could also argue that I have confined my analysis to only Supreme Court cases, and omitted discussing the hundreds of other Federal Court cases which are "anti-First-Amendment", and which the Court has declined to review, thus preserving their precedential value.

I could also argue that the presence of any pro-First-Amendment decision is irrelevant, given the manner in which courts operate. If there is a "line" of cases which is opposed to speech, then the Court has all the tools it needs to control speech in those circumstances when it wants to. Any cases to the contrary will be "distinguished", ignored, or simply overruled, when necessary. So, in a sense, these "pro-Speech" decisions can function as facades, providing a smokescreen for the real, everyday work of the Court.

Or, a more powerful argument I could make is that many of these supposedly "pro-First-Amendment" cases are actually not First Amendment cases at all: and therefore, to the extent that they re-define the First Amendment, they are actually anti-First Amendment cases!

For example, Tinker v. Des Moine and Cohen v. California, widely considered to be solidly behind the First Amendment. Super decisions, for the individuals involved. Unfortunately, no Federal question was presented in those cases, so they're not First Amendment cases.

The bottom line is, it's not "me" who's making the Court "look bad", it's the Court itself. If my reporting of their conduct makes them "look bad", then maybe they need to look in the mirror and apply some sorely needed "make-up".

However, in the spirit of fairness, I will cite every known candidate for a "pro-First-Amendment" case, courtesy of a compilation contained in Ms. Witt's epic tome. These are cases where the Supreme Court has held Federal laws unconstitutional with reference to the First Amendment. I say "candidates", because there is more to these cases than meets the eye (but you knew that already, didn't you?). Anyway, here they are:

Lamont v. Postmaster General

318 U.S. 301


76 Stat. 840, §305

Post Office allowed to detain "communist political propaganda."

United States v. Robel

389 U.S. 258


64 Stat. 992, §5

Prohibition of Communist organization members from working in defense plant.

Schact v. United States

398 U.S 58


70A Stat. 35, §772(f), 18 U.S.C. §702

Allowing wearing of U.S. military apparel only in those theatrical productions which do not discredit the armed forces.

Blount v. Rizzi

400 U.S. 410


64 Stat. 451, as amended

Mailing obscene materials.

Tilton v. Richardson

403 U.S. 672


20 U.S.C. §754

Removal of restriction against religous use of facilities constructed with federal funds.

Chief of Capitol Police v. Jeannette Rankin Brigade

409 U.S. 972


60 Stat. 719, §7

Prohibition of parades or assemblages on U.S. Capitol grounds

Buckley v. Valeo

424 U.S. 1


Amendments to 18 U.S.C. §§608(a),(e), and 2 U.S.C. §437(c)

Prohibitions against certain private campaign expenditures.

United States v. Grace

461 U.S. 171


40 U.S.C. §13k

Display of banners, etc. on public sidewalks surrounding Supreme Court building

Bolger v. Youngs Drug Products Corp.

463 U.S. 60


39 U.S.C §3001(e)(2)

Mail regarding prophylactics and contraceptives.

FCC v. League of Women Voters

468 U.S. 364


47 U.S.C. §399

Prohibition against "editorializing" by noncommercial educational stations.

Regan v. Time, Inc.

468 U.S. 641


18 U.S.C. §504(1)

Exemptions from ban on photographic reproduction of currency "for philatelic, numismatic, educational, historical, or newsworthy purposes."

FCC v. National Conservative Political Action Committee

470 U.S. 480


26 U.S.C. §9012(f)

Limitation of campaign expenditures.

FEC v. Massachusetts Citizens for Life, Inc.

479 U.S. 238


2 U.S.C. §441(b)

Manner of financing corporate campaign expenditures.

Boos v. Barry

485 U.S. 312


52 Stat. 30

Prohibition of certain signs within 500 feet of foreign embassies.

Sable Comm. v. FCC

109 S.Ct. 2829


47 U.S.C. §223(b)

Provision banning indecent as well as obscene commercial interstate telephone messages.

U.S. v. Eichman

496 U.S. 310


18 U.S.C. §700

Statute criminalizing defacement of flag.

A fairly nice-sized list, but remember, these are only candidates. When you actually look to these cases, you find that there are problems: for example, in several instances, only portions of these statutes were overruled; e.g., in United States v. Grace, the Supreme Court only held unconstitutional the part of statute dealing with sidewalks - the other speech regulation provisions were allowed to stand.

Furthermore, you might think that when a law is ruled unconstitutional by the Court, as indicated by Witt's list, that law is stricken from the books. Zzzzzt! - you are wrong, stare decisis breath! For example, in Schact v. United States, 398 U.S 58 (1970), the Court supposedly held unconstitutional 18 U.S.C. §702, which allowed the wearing of U.S. military apparel only in those theatrical productions which do not discredit the armed forces. But guess what? As of 1994, 10 U.S.C. §772 (f) is still the law of the land, and it provides that: "While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force." So even if the Court rules a statute unconstitutional, that doesn't mean the statute was stricken from the books, or, if stricken, that an identical or substantively identical statute didn't take its place. (This is perhaps the coup de grace for Court apologists).[2]

And in at least one other situation, which we'll get to, Congress repealed the law found unconstitutional, but an unconstitutional regulation took its place![3]

But the other cases in the table, even if correctly decided and followed-through, cannot undo the damage created by decades of First Amendment misrepresentation. The 1791 version is history. So what do we have in its place?

The New First Amendment Flow Chart

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1 e.g., A.C.A. v. Douds, 339 U.S. 382 (1950), Meese v. Keene, 481 US 465 (1987), Snepp v. U.S., 444 U.S. 507 (1980), Mills v. Alabama, 384 U.S. 214 (1966), Konigsberg, 366 U.S. 36, In Re Anastaplo 366 U.S. 82 (1961), Debs v. U.S., 249 U.S. 211 (1919), Beuharnais v. Illinois, 343 U.S. 250 (1952), Teamsters Union v. Vogt, Inc., 354 U.S. 284 (1957), Adderley v. Florida, 385 U.S. 39 (1966), Pittsburgh Press, 413 U.S. 376 (1973), FCC v. Pacifica Foundation, 438 U.S. 726 (1978), Heffron v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640 (1981), Connick v. Myers, 461 U.S. 138 (1983), Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985), United States v. Albertini, 472 U.S. 675 (1985), Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305 (1985), Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), Hazelwood School District v. Kullmeir, 484 U.S. 260 (1988), Ward v. Rock Against Racism, 109 S.Ct. 2746 (1989), Frisby v. Schultz, 108 S.Ct. 2495 (1989).
2 See also U.S. v. Eichman, 496 U.S. 310 (1990), and 18 U.S.C. §700, the same story.
3 47 CFR §73.1920 (c), for the curious.