Knowledge And Decisions

Complications arise with the very meaning of “free” and of “speech.” The basic conception of freedom of speech — that the substantive content of individual communication be uncontrolled by government — has been judicially supplemented or extended by considering the economic cost of communication. If the content of speech remains unconstrained by government, but the modalities of its delivery are restricted (e.g., bans on sound trucks at 2:00 a.m.), then beyond some point in such restrictions, the alternative costs of other modes of communication could conceivably price the speaker out of the market. “Freedom” of speech has therefore, in recent decades, come to include concern for the cost of communication — almost as if “free” had an economic rather than a political meaning. “Speech” has also been judicially expanded to include various forms of articulation (picketing, for example) and even inarticulate symbolism (flag burning). Extensions of the concept of “speech” to other activities places other aspects of these activities — harassment and intimidation, for example — under constitutional protection intended only for communication. Similarly, extending the freedom of the press can mean allowing newspapers to be used as protected conduits for threats or ransom demands by individuals or groups who communicate with victims or their families or the authorities via newspaper stories phoned to reporters.

In the 1940 case of Thornhill v. Alabama the Supreme Court declared a state ban on picketing unconstitutional as a violation of free speech.¹⁹ The broadness of the ban and the corresponding broadness of the affirmation of the right of free speech as applied to pickets led to subsequent challenges to other picketing restrictions of a more limited sort. Here the court recognized the nonspeech aspects of picketing as subjecting the whole activity to some state control, such as when “the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.²⁰ Moreover, picketing by an organized group “is more than free speech” because the presence of its picket line “may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.²¹ Despite these reservations as to the legal immunization of nonspeech activities by the “freedom of speech” provisions of the Constitution, over the years the courts have generally expanded the scope of activities deemed to be protected by the First Amendment, and extended the constitutional restrictions to organizations not part of the governmental apparatus. The First Amendment begins “Congress shall make no law...,” but by interpreting the Fourteenth Amendment as bringing the states under federal constitutional restrictions, the Supreme Court applied the rest of the earlier amendments to state governments.²² Then, in a series of cases, it extended the constitutional restrictions to various private organizations as well.

In the landmark case of Marsh v. Alabama (1946) the Supreme Court ruled that the state could not prosecute for trespass a woman who distributed religious leaflets in a privately owned suburb where such distribution was forbidden by the owner. Although the state was not forbidding distribution of leaflets, the state’s enforcement of the property owner’s rights against trespass was held to be sufficient to transform the property owner’s ban into “state action” in violation of a constitutional right. The court said: “When we balance the constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.”²³