Justice Stevens on Distinguishing Protest from Incitement

Many liberals are making loaded, unsubstantiated claims that talk radio, the internet, peaceful Tea Party protests, and other conservative speech and associations run the risk of inciting violence. Indeed, in the past it was liberals who not merely came to the defense of such forms of protest, but who articulated the actual danger of suppressing such protest.

Liberals on the Supreme Court protected liberals engaging in the same forms of speech and protest we now see from conservatives. For example, in New York Times v. Sullivan, liberal Justice William Brennan cited the concurring opinion in Whitney v. California by the avowed progressive, Justice Louis Brandeis:

[O]rder cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, [our Founders] eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Retiring Justice John Paul Stevens is receiving heaping praise from the left. In 2007, the Supreme Court decided Morse v. Frederick, better-known as the "Bong Hits for Jesus" case. Justice Stevens wrote a dissent and was joined by Justices Souter and Ginsburg. His dissent helps delineate the view of what constitutes controversial, even patriotic, speech and protest from actual incitement of unlawful conduct. This is a relevant portion:

To the extent the Court defers to the principal's ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg [v. Ohio], yet would permit a listener's perceptions to determine which speech deserved constitutional protection.

Such a peculiar doctrine is alien to our case law. In Abrams v. United States, this Court affirmed the conviction of a group of Russian "rebels, revolutionists, [and] anarchists," on the ground that the leaflets they distributed were thought to "incite, provoke, and encourage resistance to the United States." Yet Justice Holmes' dissent -- which has emphatically carried the day-never inquired into the reasonableness of the United States' judgment that the leaflets would likely undermine the war effort. The dissent instead ridiculed that judgment: "nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so." In Thomas v. Collins, we overturned the conviction of a union organizer who violated a restraining order forbidding him from exhorting workers. In so doing, we held that the distinction between advocacy and incitement could not depend on how one of those workers might have understood the organizer's speech. That would "pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning." In Cox v. Louisiana, we vacated a civil rights leader's conviction for disturbing the peace, even though a Baton Rouge sheriff had "deem[ed]" the leader's "appeal to ... students to sit in at the lunch counters to be 'inflammatory.'" We never asked if the sheriff's in-person, on-the-spot judgment was "reasonable." Even in [Bethel School Dist. No. 403] v.  Fraser, we made no inquiry into whether the school administrators reasonably thought the student's speech was obscene or profane; we rather satisfied ourselves that "[t]he pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students -- indeed, to any mature person." See also, Bose Corp. v. Consumers Union of United States, Inc. ("[I]n cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.")

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The Vietnam War is remembered today as an unpopular war. During its early stages, however, "the dominant opinion" that Justice Harlan mentioned in his Tinker [v. Des Moines Independent Community School Dist.] dissent regarded opposition to the war as unpatriotic, if not treason. That dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, see United States v. Dellinger, and the vilification of vocal opponents of the war like Julian Bond. In 1965, when the Des Moines students wore their armbands, the school district's fear that they might "start an argument or cause a disturbance" was well founded. Given that context, there is special force to the Court's insistence that "our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society." As we now know, the then-dominant opinion about the Vietnam War was not etched in stone.
Many liberals are making loaded, unsubstantiated claims that talk radio, the internet, peaceful Tea Party protests, and other conservative speech and associations run the risk of inciting violence. Indeed, in the past it was liberals who not merely came to the defense of such forms of protest, but who articulated the actual danger of suppressing such protest.

Liberals on the Supreme Court protected liberals engaging in the same forms of speech and protest we now see from conservatives. For example, in New York Times v. Sullivan, liberal Justice William Brennan cited the concurring opinion in Whitney v. California by the avowed progressive, Justice Louis Brandeis:

[O]rder cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, [our Founders] eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Retiring Justice John Paul Stevens is receiving heaping praise from the left. In 2007, the Supreme Court decided Morse v. Frederick, better-known as the "Bong Hits for Jesus" case. Justice Stevens wrote a dissent and was joined by Justices Souter and Ginsburg. His dissent helps delineate the view of what constitutes controversial, even patriotic, speech and protest from actual incitement of unlawful conduct. This is a relevant portion:

To the extent the Court defers to the principal's ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg [v. Ohio], yet would permit a listener's perceptions to determine which speech deserved constitutional protection.

Such a peculiar doctrine is alien to our case law. In Abrams v. United States, this Court affirmed the conviction of a group of Russian "rebels, revolutionists, [and] anarchists," on the ground that the leaflets they distributed were thought to "incite, provoke, and encourage resistance to the United States." Yet Justice Holmes' dissent -- which has emphatically carried the day-never inquired into the reasonableness of the United States' judgment that the leaflets would likely undermine the war effort. The dissent instead ridiculed that judgment: "nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so." In Thomas v. Collins, we overturned the conviction of a union organizer who violated a restraining order forbidding him from exhorting workers. In so doing, we held that the distinction between advocacy and incitement could not depend on how one of those workers might have understood the organizer's speech. That would "pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning." In Cox v. Louisiana, we vacated a civil rights leader's conviction for disturbing the peace, even though a Baton Rouge sheriff had "deem[ed]" the leader's "appeal to ... students to sit in at the lunch counters to be 'inflammatory.'" We never asked if the sheriff's in-person, on-the-spot judgment was "reasonable." Even in [Bethel School Dist. No. 403] v.  Fraser, we made no inquiry into whether the school administrators reasonably thought the student's speech was obscene or profane; we rather satisfied ourselves that "[t]he pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students -- indeed, to any mature person." See also, Bose Corp. v. Consumers Union of United States, Inc. ("[I]n cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.")

* * *

The Vietnam War is remembered today as an unpopular war. During its early stages, however, "the dominant opinion" that Justice Harlan mentioned in his Tinker [v. Des Moines Independent Community School Dist.] dissent regarded opposition to the war as unpatriotic, if not treason. That dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, see United States v. Dellinger, and the vilification of vocal opponents of the war like Julian Bond. In 1965, when the Des Moines students wore their armbands, the school district's fear that they might "start an argument or cause a disturbance" was well founded. Given that context, there is special force to the Court's insistence that "our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society." As we now know, the then-dominant opinion about the Vietnam War was not etched in stone.