Quotations from Free Speech Cases
West Virginia v.
Barnette (1943):
"There is no doubt that, in connection with the
pledges, the flag salute is a form of utterance. Symbolism
is a primitive but effective way of communicating ideas.
The use of an emblem or flag to symbolize some system,
idea, institution, or personality, is a short cut from
mind to mind. Causes and nations, political parties,
lodges and ecclesiastical groups seek to knit the loyalty
of their followings to a flag or banner, a color or
design. . . . Associated with many of these symbols are
appropriate gestures of acceptance or respect: a salute, a
bowed or bared head, a bended knee. A person gets from a
symbol the meaning he puts into it, and what is one man's
comfort and inspiration is another's jest and scorn."
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston (1995):
"[A] narrow, succinctly articulable message is not a
condition of constitutional protection, which if confined to
expressions conveying a 'particularized message,' would
never reach the unquestionably shielded painting of Jackson
Pollock, music of Arnold Schonberg, or Jabberwocky verse of
Lewis Carroll."
Chaplinsky v. New Hampshire (1942):
"There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the
libelous, and the insulting or 'fighting' words — those
which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as
a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality. 'Resort to epithets or personal abuse is not
in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a
criminal act would raise no question under that
instrument.'"
Cohen v. California (1971):
"[M]uch linguistic expression serves a dual communicative
function: it conveys not only ideas capable of relatively
precise, detached explication, but otherwise inexpressible
emotions as well. In fact, words are often chosen as much
for their emotive as their cognitive force. We cannot
sanction the view that the Constitution, while solicitous of
the cognitive content of individual speech, has little or no
regard for that emotive function which, practically
speaking, may often be the more important element of the
overall message sought to be communicated."
"For, while the particular four-letter word being
litigated here is perhaps more distasteful than most others
of its genre, it is nevertheless often true that one man's
vulgarity is another's lyric. Indeed, we think it is largely
because governmental officials cannot make principled
distinctions in this area that the Constitution leaves
matters of taste and style so largely to the individual."
Abrams v. United States (1919)
Holmes, J., dissenting:
"But when men have realized that time has upset many
fighting faiths, they may come to believe even more than
they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in
ideas -- that the best test of truth is the power of the
thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their
wishes safely can be carried out. That, at any rate, is the
theory of our Constitution. It is an experiment, as all life
is an experiment. Every year, if not every day, we have to
wager our salvation upon some prophecy based upon imperfect
knowledge. While that experiment is part of our system, I
think that we should be eternally vigilant against attempts
to check the expression of opinions that we loathe and
believe to be fraught with death, unless they so imminently
threaten immediate interference with the lawful and pressing
purposes of the law that an immediate check is required to
save the country.
Only the emergency that makes it immediately dangerous to
leave the correction of evil counsels to time warrants
making any exception to the sweeping command, 'Congress
shall make no law . . . abridging the freedom of speech.'"
Whitney v. California 274 U.S. 357 (1927)
Justice Brandeis, concurring, joined by Justice Holmes:
"Those who won our independence believed that the final end
of the state was to make men free to develop their
faculties, and that in its government the deliberative
forces should prevail over the arbitrary. They valued
liberty both as an end and as a means. They believed liberty
to be the secret of happiness and courage to be the secret
of liberty. They believed that freedom to think as you will
and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free
speech and assembly discussion would be futile; that with
them, discussion affords ordinarily adequate protection
against the dissemination of noxious doctrine; that the
greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a
fundamental principle of the American government. They
recognized the risks to which all human institutions are
subject. But they knew that order 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, they 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.
Fear of serious injury cannot alone justify suppressions of
free speech and assembly. Men feared witches and burnt
women. It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to fear that serious
evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that
the evil to be prevented is a serious one. Every
denunciation of existing law tends in some measure to
increase the probability that there will be violation of it.
Condonation of a breach enhances the probability.
Expressions of approval add to the probability. Propagation
of the criminal state of mind by teaching syndicalism
increases it. Advocacy of lawbreaking heightens it still
further. But even advocacy of violation, however
reprehensible morally, is not a justification for denying
free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy
and incitement, between preparation and attempt, between
assembling and conspiracy, must be borne in mind. In order
to support a finding of clear and present danger it must be
shown either that immediate serious violence was to be
expected or was advocated, or that the past conduct
furnished reason to believe that such advocacy was then
contemplated. Those who won our independence by revolution
were not cowards. They did not fear political change. They
did not exalt order at the cost of liberty. To courageous,
self reliant men, with confidence in the power of free and
fearless reasoning applied through the processes of popular
government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil
apprehended is so imminent that it may befall before there
is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to
be applied is more speech, not enforced silence. Only an
emergency can justify repression. Such must be the rule if
authority is to be reconciled with freedom. Such, in my
opinion, is the command of the Constitution . . .
Moreover, even imminent danger cannot justify resort to
prohibition of these functions essential to effective
democracy, unless the evil apprehended is relatively
serious. Prohibition of free speech and assembly is a
measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to society."
Buckley v. Valeo (1976):
"A contribution serves as a general
expression of support for the candidate and his views, but
does not communicate the underlying basis for the support.
The quantity of communication by the contributor does not
increase perceptibly with the size of his contribution,
since the expression rests solely on the undifferentiated,
symbolic act of contributing. At most, the size of the
contribution provides a very rough index of the intensity of
the contributor's support for the candidate. A limitation on
the amount of money a person may give to a candidate or
campaign organization thus involves little direct restraint
on his political communication, for it permits the symbolic
expression of support evidenced by a contribution but does
not in any way infringe the contributor's freedom to discuss
candidates and issues."