It’s the Principle, Stupid
It may seem elementary to remind lawyers that their arguments should be grounded in great principles of law. After all, every criminal defense lawyer depends on concepts like the presumption of innocence, and juries get the idea that the state has the burden to prove its case. But First Amendment cases are different in the sense that there usually is no dispute over whether the offending words were published or spoken. Before the First Amendment existed, and even after its adoption but before modern constitutional doctrine evolved, the state had only to prove that the defendant was responsible for uttering or publishing the offending words. It simply was assumed that the government had the authority to regulate or prohibit expression that violated social norms or could be said to have a “bad tendency” to promote crime. But as First Amendment law developed through the past century, the question became whether the state even had the power to penalize particularly offensive words or images by imposing criminal or civil sanctions.
This can be a difficult question to address because usually the legislature has already spoken—often by great majorities—concluding that the speech at issue is too dangerous to permit or too worthless to endure. This is when the lawyer must emphasize that there is a higher principle at work and that the very purpose of the First Amendment is to protect individuals from majority will, legislative or otherwise. In this sense, First Amendment cases are not really about the particular speech at issue; they are about power, and the essential question is who should have the power to decide how individuals should think, speak, believe, or feel?
This was an underlying issue in United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), in which the Supreme Court invalidated a provision of the Telecommunications Act of 1996 that regulated adult cable television networks. The question was whether Congress could limit the operation of sexually oriented channels where imperfectly scrambled signals resulted in “signal bleed” that allowed nonsubscribers to hear or see bits of the programming. The government argued for reduced scrutiny of the law for a number of reasons, among which was the programming’s supposed lack of merit and its capacity to offend. It stressed that the measure was approved in Congress by overwhelming majorities, with the amendment containing the provision passing the Senate by a vote of 91–0.
The Supreme Court was not persuaded by this line of argument, citing basic principles of the First Amendment that had been stressed in Playboy’s brief. Speaking directly to the question of the “value” of sexually offensive speech, Justice Anthony Kennedy wrote that “[w]e cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech is not very important.” Id. at 826. He stated:
The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.
Id. at 818.
Thus, when the question is whether the First Amendment permits the regulation of such speech, the burden of proof “must rest with the Government, not with the citizen.” Id.
The challenge of focusing on higher principles was even greater in United States v. Stevens, a case involving a federal statute that prohibited so-called “crush videos.” The law ostensibly was intended to target a fringe type of fetish videos that involved depictions of animal cruelty, but it was enforced against Robert Stevens, who wrote about and trained pit bulls. Stevens was prosecuted because he made cheaply produced documentary films about the dogs and their training, and, although he neither supported nor participated in dogfighting, his films incorporated footage taken by others in jurisdictions where dogfighting is legal. He also made films about training dogs to hunt wild boar. Stevens was convicted, but the judgment was overturned on appeal.
He challenged the facial validity of the federal law, and his merits brief to the Supreme Court focused on the broad First Amendment principles at issue:
This case is not about dogfighting or animal cruelty. The government and Stevens stand together opposing that. The question here is more fundamental: whether the government can send an individual to jail for up to five years just for making films—films that are not obscene, pornographic, inflammatory, defamatory, or even untruthful. They are controversial. But that is supposed to invigorate, not contract, the First Amendment’s protection.
Brief for the Respondent at 11, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).
The Supreme Court agreed and held that the subject matter of the films did not justify creating new exceptions to the First Amendment. Chief Justice Roberts wrote that the First Amendment “reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs,” and that our Constitution “forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” The opinion rejected an approach that would subject the relative value of speech to ad hoc balancing, calling such a “free-floating test for First Amendment coverage . . . startling and dangerous.” Stevens, 559 U.S. at 470.
A plea for the Court to focus on first principles also was essential in opposing a massive damages award for intentional infliction of emotional distress assessed against the Westboro Baptist Church. This issue reached the Supreme Court in Snyder v. Phelps, 562 U.S. 443 (2011), a case that tested the mettle of even the most ardent free speech advocates because the underlying speech was so repugnant. The Westboro Baptist Church is a peculiar family cult of religious fundamentalists who believe their god hates the United States because of the nation’s tolerance of homosexuality, among other things. It had chosen as one principal venue for its venomous message the funerals of fallen veterans, with picket signs such as “Thank God for Dead Soldiers,” “Fags Doom Nations,” “God Hates Fags,” and “You’re Going to Hell.”
Everything about the church’s message and the means chosen to deliver it seemed designed to offend and to make its messengers unlikable. At the same time, it is difficult to imagine more sympathetic victims than the grieving parents of fallen soldiers. The jury agreed. It awarded the grieving parents $2.9 million in compensatory damages for intentional infliction of emotional distress and $8 million in punitive damages (later reduced to $2.1 million). Opposing the award on appeal required a powerful reminder that the First Amendment cannot function if the Court were to recognize a right not to be offended. Acknowledging the difficult facts, the amicus brief in support of the church submitted on behalf of the Reporters Committee for Freedom of the Press and various media organizations put it this way:
Most reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful. Without a doubt, the church’s message of intolerance is deeply offensive to many, and especially so to gay Americans, Catholics, veterans, and the families of those who sacrificed their lives defending the United States. But to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment’s most basic precepts.
Brief of Amici Curiae the Reporters Committee for Freedom of the Press and Twenty-One News Media Organizations in Support of Respondents at 3, Snyder v. Phelps, 562 U.S. 443 (2011) (No. 09-751).
The brief admitted the difficulty of living up to such principles “when expression is deeply disturbing, as it is here.” But it argued that First Amendment protections will not long endure if we abandon them “when the message is unusually repellant, or the target of the speech especially sympathetic.” Id. at 13. It then traced the development of First Amendment jurisprudence where the offensiveness of speech was the reason why constitutional protection was essential and observed, “[f]rom such difficult cases emerge constitutional protections that can weather the tests of time and turmoil.” Id at 13.
The Court once again agreed that the strong emotional appeal of the petitioner’s case did not outweigh the vital importance of preserving First Amendment principles. In doing so, Chief Justice Roberts’s opinion recognized that “[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.” But the Court concluded that “we cannot react to that pain by punishing the speaker” because “[a]s a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” Snyder v. Phelps, 562 U.S. at 460–61.
In the case of the Westboro Baptist Church, it was not too hard to grasp the notion that the group was engaged in a debate on public issues, albeit from a profoundly misguided and hurtful perspective. The notion brings to mind the comment from Walter Sobchak to Jeff Lebowski: “I mean, say what you want about the tenets of National Socialism, Dude, at least it’s an ethos.” The Big Lebowski (1998). It is one thing to defend America’s commitment to the idea that dialogue on public issues must be uninhibited and robust, but quite another when there is no “public issue” and nothing to “debate.” What is the overarching principle in such a case?
Is Lying Protected?
This was the challenge in United States v. Alvarez, 132 S. Ct. 2537 (2012), a case that addressed the question of whether the First Amendment protects lying. The respondent in the case, Xavier Alvarez, had been prosecuted under a federal law for publicly making the false claim that he had been awarded the Congressional Medal of Honor. As it turned out, this was just one of a long string of lies that tumbled from the mouth of this California water district board member. He claimed to be a retired marine and combat veteran who had been wounded “many times” in battle; he said he had played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. All false. As Justice Kennedy summed up the man: “Lying was his habit.” Id. at 2542.
Alvarez was convicted under the Stolen Valor Act, which prohibited false claims of being awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, and his appeal challenged the law’s facial validity. In supporting his argument, the Reporters Committee and media organizations again stressed the larger question involved: “Amici write to make clear that the issues in this case go far beyond the fate of a serial prevaricator like Xavier Alvarez and strike at the heart of press freedom.” The issue here, regardless of the worthlessness of Alvarez’s whoppers, was that “the government cannot be the arbiter of truth.” Brief of Amici Curiae of the Reporters Committee for Freedom of the Press and Twenty-Three News Media Organizations in Support of Respondents at 1, 3, United States v. Alvarez, 132 S. Ct. 2537 (2012) (No. 11-210).
The amicus brief traced the history of efforts to police false speech, including the Alien and Sedition Acts adopted (and allowed to lapse) shortly after the nation’s founding, the Espionage Act during World War I, and libel laws used as a vehicle to suppress the civil rights movement, culminating in New York Times v. Sullivan. It argued that the First Amendment was based on the concept that the government “could neither be trusted to protect only ‘truth’ nor empowered to punish ‘falsity’” and that for those limited exceptions where false speech can be punished—as in the case of fraud or defamation—it is because the falsehoods are linked to a specific harm (which the brief called “falsity plus”). Id. at 7–15. Even then, any regulation must be subjected to rigorous First Amendment scrutiny. The brief acknowledged that false claims of military valor are profoundly insulting to veterans and patriots, but it also observed “[o]ur nation cannot honor the achievements of military heroes by constricting the freedoms for which they fought.” It concluded: “Those who pretend to be heroes should not be permitted to undo the work of those with real courage.” Id. at 36.
The Court’s opinion agreed with the “falsity plus” analysis, observing that its decisions describing exceptions to First Amendment protection have “never endorsed the categorical rule . . . that targets falsity and nothing more.” Alvarez, 132 S. Ct. at 2545. Writing for the majority, Justice Kennedy reaffirmed that constitutional protection depends on more than whether Alvarez’s self-aggrandizing lies contributed to the marketplace of ideas. As he put it, “[p]ermitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.” Invoking George Orwell’s dystopian classic 1984, Justice Kennedy wrote: “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Id. at 2547.
The opinion cited the Reporters Committee amicus brief for the concept that the marketplace of ideas provides the surest way to reveal the true nature of scoundrels like Alvarez. Observing that the proper solution is to be found in allowing more speech, not less, Justice Kennedy wrote: “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straightout lie, the simple truth.” Criminal law, then, is not the proper response in our constitutional system, because “[o]nly a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.” Id. at 2550–51.
These examples illustrate the importance of relying on foundational First Amendment principles when defending offensive, hurtful, or seemingly worthless expression. But it has to be acknowledged this doesn’t always work. In challenging the constitutionality of Federal Trade Commission and Federal Communications Commission (FCC) regulations establishing a “Do Not Call” list for telemarketers, I cited the important reasons the courts had extended First Amendment protections to commercial speech, the evils of regulations that favor certain speakers over others, and the fact that less restrictive measures existed, but to no avail. Although the district court preliminarily enjoined the rules, that decision was reversed on appeal. A hard lesson from that case was that the abstract principles of First Amendment jurisprudence may not be enough to persuade judges who might have had the experience of being interrupted by a telemarketing call at dinnertime.
Know Your Audience
There is another basic rule of advocacy that has special application in First Amendment cases: Know your audience. First Amendment cases may involve soaring principles, but the particular speech at issue may not play well in the formal setting of a court proceeding. This truism has a long pedigree: In Victorian era obscenity prosecutions, courts would routinely omit the challenged book from evidence on the grounds it was “so lewd, obscene and lascivious, that the same would be offensive to the court here, and improper to be placed on the court records.” United States v. Bennett, 24 F. Cas. 1093, 1097 (2d Cir. 1879). In such cases, it was not uncommon for books to be found obscene based on their titles alone.
We have come a long way since then, in terms of both the state of the law and judicial sensibilities, but it still is necessary to be mindful of the potential effect of the speech on the judge or jury. This was brought home when the Supreme Court heard argument in Cohen v. California, 403 U.S. 15 (1971), a case that voided the conviction of a Vietnam War protestor for wearing a jacket emblazoned with the slogan “Fuck the Draft.” Chief Justice Warren Burger, hoping to forestall utterance of the offending word in the Supreme Court, welcomed Cohen’s counsel Melville Nimmer to the lectern with the following admonition: “I might suggest to you that as in most cases, the Court’s thoroughly familiar with the factual setting of this case and it will not be necessary for you . . . to dwell on the facts.”
Nimmer got the message and promised to be brief, but he reportedly wanted to demystify the forbidden word. So shortly after his presentation began, in response to a question from Justice Blackmun, he said that Cohen “was wearing a jacket upon which were inscribed the words ‘Fuck the draft,’ also were inscribed the words ‘Stop war’ and several peace symbols.” Nimmer’s choice was a risky one, but it paid off. The Court held Cohen’s conviction was unconstitutional, and Justice Harlan’s opinion began by saying: “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.” Id. at 15. Noting that the conviction was based solely on “the asserted offensiveness of the words Cohen used,” Harlan concluded that “the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” Id. at 18, 25.
Although Cohen v. California is a landmark First Amendment victory, the decision was 5–4 and the chief justice was among the dissenters. He joined Justice Blackmun’s terse opinion, which criticized “Cohen’s absurd and immature antic” as “mainly conduct, and little speech.” The dissent thus found the majority’s “agonizing over First Amendment values . . . misplaced and unnecessary.” Id. at 27 (Blackmun, J., dissenting). Issues of courtroom decorum probably didn’t affect the vote, but with the margin of victory so slim, it might have been wiser not to take a chance.
A similar calculus has affected arguments over the constitutionality of the FCC’s test for regulating broadcast “indecency.” The FCC adopted its standard in the mid-1970s after the Supreme Court fashioned the current test for obscenity, and the agency devised sort of a “lite” version of that test. The FCC’s formula was quickly challenged in a case involving the broadcast of a George Carlin monologue (“Filthy Words”) that purported to list the seven words “you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” The Carlin routine was a live recording in which the legendary comic riffed for 12 minutes on variations of the words “shit,” “piss,” “fuck,” “cunt,” “cocksucker,” “motherfucker,” and “tits.” On the specific facts before it, the Supreme Court in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), upheld the FCC’s disciplinary action, which was nothing more than a letter of admonition to WBAI-FM, the New York station that had aired the offending bit.
The FCC’s indecency standard has been the subject of continuing litigation in the 39 years since Pacifica, in part because the decision was expressly limited to the facts but also because the holding turned on radio’s supposed “unique accessibility” to children based on the state of broadcast technology in 1978. Each time the matter is litigated, however, the lawyers involved must address the same question: Should I use Carlin’s seven words in my brief or my argument—words the Supreme Court described as “verbal shock treatment”—or should I play it safe? This presents the same dilemma Melville Nimmer addressed when he argued Cohen v. California: whether to risk offending the court or concede the mystical power of the words by avoiding them.
The answer, as it turns out, depends largely on the forum.
There was a range of choices to test this theory between 2004 and 2012 in various cases before the FCC, the Second and Third Circuits, and the Supreme Court. The FCC kicked off this round of indecency cases by reinterpreting the indecency standard to be far more restrictive and by multiplying the level of fines imposed on stations found in violation of the rules. Along with this newfound zeal, the commission became far more prudish about its own use of language, even when announcing the new legal standard. This was a sharp break with past practice, whereby the agency was aware it was crafting a legal standard and had no qualms about quoting the Carlin words in its decisions. Even the Supreme Court published a full transcript of the George Carlin monologue in volume 438 of the United States Reports as an appendix to its 1978 decision.
But in 2004, the FCC became far more reticent about language when recrafting its standard in ruling on complaints about a live broadcast in which U2’s lead singer Bono described winning a Golden Globe award as “fucking brilliant.” Under intense pressure from Congress, the commission overruled prior decisions that held “that isolated or fleeting broadcasts of the ‘F-Word’ . . . are not indecent or would not be acted upon,” and went even further, putting broadcasters on “clear notice that, in the future, they will be subject to potential enforcement action for any broadcast of the ‘F-Word’ or variations thereof.” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4980, 4982 (2004). Clear notice? Really? How can anything be “clear” when the agency charged with enforcing the law cannot bring itself to use the forbidden word? Not even in a legal document. The FCC decision and separate statements from the commissioners used the euphemism “F-Word” no fewer than 35 times.
A broad coalition that included networks and other media companies, civil liberties organizations, and individuals affected by the change addressed this problem in a petition asking the FCC to reconsider its Golden Globe Awards decision. It pointed out that the FCC only confused matters by announcing a ban on any use of the “F-Word” “or a variation, in any context, [because it] inherently has a sexual connotation.” For starters, it was not even clear why the ban would not include euphemisms like “F-Word.”
In other circumstances, it might be reasonable to assume the government intended only to ban the actual word and not its semantic replacements, but other FCC decisions at the time reinforced the notion that “innuendo and colloquial references” could be actionable if the FCC were to conclude the sexual connotation was “unmistakable.” In this regard, even the “F-Word” logically fell in the prohibited class of expressions, as the commission found it unnecessary to define the term even though roughly 8,600 other words in the English language also begin with the letter f. What could be more “unmistakable”?
In asking the FCC to reconsider the decision, it was important to use the actual word “fuck,” despite the agency’s obvious discomfort with the word, for several reasons. First, the argument was focused on the lack of clarity of a legal standard defined by euphemisms, and it was not possible to make that point without using the language actually at issue. Second, it was necessary to contrast the FCC’s current prim approach with the language of its decisions in the 1970s quoting the Carlin monologue in all its glory, when the agency was at least making a good-faith (if flawed) attempt to create a legal standard. Third, there was little to lose in any event because the FCC was not about to change its decision even if the petitioners had sought to persuade it by mimicking the agency’s baby talk. The commission had adopted its Golden Globes decision under direct pressure from Congress.
The FCC never acted on the petition to reconsider its Golden Globes decision. The matter did get to court, however, in appeals from other FCC enforcement actions. These cases once again raised the question of how to maintain decorum and avoid offending judicial sensibilities.
Any such concerns were quickly dispelled by the judges of the Second Circuit, who openly mocked the FCC during oral arguments, making clear they did not share the commission’s squeamishness about language. Judge Rosemary Pooler, for example, asked the commission’s lawyer what the FCC would do about a televised news report of a zoning board hearing that included footage of a citizen complaining that a decision “fucked up my house”? In the same vein, Judge Pierre Leval suggested to FCC counsel that the term “bullshitter” should not be taken for its literal meaning. None of the judges on the panel hesitated to use the Carlin words in their hypotheticals, as they were integral to the legal arguments. Not surprisingly, the Second Circuit held that the FCC’s indecency rules were unconstitutionally vague. The case went before the Second Circuit twice and the FCC lost both times.
The contrast between the court and the commission was highlighted by the reaction of Kevin Martin, the hapless FCC chairman responsible for much of the change in policy. In a written statement issued to the press after the first ruling, Martin complained that “the Second Circuit Court of Appeals in New York said the use of the words ‘fuck’ and ‘shit’ [on a live awards show] was not indecent,” adding, “[i]t is the New York court, not the Commission, that is divorced from reality in concluding that the word ‘fuck’ does not invoke a sexual connotation.” Chairman Martin showed none of the reticence of the FCC’s official orders—no euphemisms this time.
Martin’s reaction presaged the obvious—that the matter would go to the Supreme Court, which again raised the question of how the lawyers should handle the potentially offensive language in a judicial setting. It was a safe bet that the Supreme Court would not be as freewheeling as the Second Circuit, and this suspicion was confirmed when the Court informed counsel before the argument that it would prefer the language not be used. The message was received, and oral arguments came off without a single utterance of the words “fuck” or “shit.” The Supreme Court ultimately invalidated the FCC’s decision on due process grounds without reaching the First Amendment question. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). Heeding the Court’s preference about language may not have affected the outcome, but ignoring it would not have been likely to make the networks’ arguments more persuasive.
Relating to Juries
Knowing something about the audience is relatively easy when dealing with judges. Their résumés are a matter of public record, including where they come from, who appointed them (in federal court at least, and some state courts), and what they did before donning robes. Prior published decisions also help reveal their judicial philosophies and sensitivities. But it is an entirely different matter when dealing with juries. Basic information can be gleaned from jury questionnaires and voir dire, but it is more limited, and there are numerous (and more varied) personalities to take into account. On top of that, most jurors have no legal training and may have difficulty applying a judge’s instructions to speech that offends them.
This was one of the challenges in United States v. Stagliano, a 2010 obscenity prosecution in the District of Columbia that targeted a filmmaker and his companies for distributing “gonzo porn.” Of course, it will be an issue in every obscenity case—the jury will be required to view the evidence and decide if the material, taken as a whole, appeals primarily to a prurient interest in sex, whether it is “patently offensive” in violation of contemporary community standards, and whether it lacks serious literary, artistic, political, or scientific value. This is the test the Supreme Court articulated in Miller v. California, 413 U.S. 15 (1973), and it practically invites juries to convict if the material on trial offends them. That impulse can be moderated by sound jury instructions on the Miller test’s separate requirements, including the fact that the “serious value” requirement is not derived from local community standards. But it also requires some persuasion to help the jurors put into perspective the material they view at trial.
In the Stagliano case, I had the good fortune to be teamed up with Paul Cambria of Buffalo and Louis Sirkin of Cincinnati, legends in the obscenity defense bar, who served as lead counsel in the case. They had particularly sage advice about speaking to juries in obscenity cases when it comes to evaluating the evidence. First, it is important to remind jurors that they are the only people in the country who are compelled to watch the videos on trial. For everyone else, it is a personal entertainment choice that is freely made. Second, if there is a community standard in America, it is that the videos our neighbors choose to watch in the privacy of their own homes are none of our business. Jurors who may be offended by the prosecution’s exhibits may be equally put off at the notion of allowing the government to police citizens’ sexual imaginations.
In Stagliano, we never got the chance to make these points to the jury, and it was not given a chance to rule on the evidence, because the court dismissed the case at the conclusion of the government’s case under Rule 29(a) of the Federal Rules of Criminal Procedure. Even without the presentation of a defense, it appears that Americans’ inherent distaste for thought control kicked in. Reporters who spoke to jurors after they were discharged indicated that the jury would have voted to acquit if the case had gone to a verdict.
Perhaps the jurors were simply channeling their “inner Voltaires.” Americans seem to have an instinctive affinity for First Amendment protections, as annual surveys conducted by the Freedom Forum’s First Amendment Center attest. Even when the issues are difficult, these State of the First Amendment surveys consistently show strong support for free expression. It is part of our national character and embedded in our jurisprudence. The lawyer’s job is to tap into those forces and to keep the offensiveness of speech from getting in the way.