Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
These five freedoms contained in the First Amendment were referred to by Justice Benjamin Cardozo in Palko v Connecticutas composing “the matrix, the indispensable condition, of nearly every other form of freedom.”
The recent lecture on freedom presented by the Pearson-Eby Liberty Academy (PELA) was delivered by Samuel MacRoberts, General Counsel and Litigation Director at the Kansas Justice Institute (KJI), a Kansas Policy Institute affiliate, as is the Sentinel. The series has recently been held at the Overland Park campus of Ottawa University in conjunction with its Gwartney Institute.
MacRoberts began his talk with disturbing polling results showing that the commitment to freedom of speech is waning among younger Americans:
“Gen Z (born 1997-2012) is 10 times more accepting of violence against speakers than Boomers (1946-1964). Gen Z is 25 times more accepting of violence than the Silent Generation (born 1928-1945). And they say 43% think violence against speakers is acceptable. And a different study at Florida State University shows 20% of young adults believe that people can employ violence to prevent speech. 37% of people agree that speech should sometimes be restricted when it conflicts with inclusivity. And I think that really goes to the heart of today’s discussion. When we talk about free speech, what do we mean? Do we actually think it’s essential to liberty? Do we think it’s essential to freedom? I have a pretty strong viewpoint on this, but I would guess not everyone agrees with me. And I would, yes, based upon these stats, other generations don’t agree. And so, it’s really important, I think, today to have that conversation.”
He added that recent incidents on college campuses appear to validate that polling:
“At UCLA, one of the head lawyers from DHS (Department of Homeland Security) went to give a speech at UCLA, and the event was disrupted. Students at UCLA would not let the attorney give his speech because they disagreed with what he was saying. And if the media reports are correct, what he was talking about, or what he was planning on talking about, was whether or not you could use administrative warrants or no warrants to conduct what amounts to ICE raids. And so, rather than allowing the DHS lawyer to talk about it, this speech was disrupted. And to me, that presents a very big problem because if you oppose what the DHS is doing, and I think there are a lot of people who do, wouldn’t you want to hear what they had to say? And then perhaps ask questions about why they support that?
“At Stanford in 2023, a 5th Circuit judge, Kyle Duncan, wanted to give a speech to the Federalist Society. And he was prevented from doing it. He was shouted at, and a lot of students were prevented from going in to hear Judge Duncan give his speech. And after that, there were more studies conducted, more percentages about whether or not that was acceptable. And 60% of Stanford students said that someone who has stated that same sex marriage is unconstitutional should not be allowed to give a speech at Stanford. And three-quarters of Stanford students said that shouting down a speaker was acceptable. 3/5 of Stanford students said that blocking other students from attending campus speeches was appropriate. And more than one-third of students said that using physical violence to stop a campus speech is also appropriate.
Samuel MacRoberts, courtesy of Kansas Justice Institute
“Just yesterday, I was told that there was something happening at Kansas State University, where I believe a student was sitting in a common area and was using the N word and had the N word sign out there. And there were a lot of students who said that that person should not be permitted to speak in that way on campus. And that raises really interesting questions that we’re gonna discuss later. I believe the NAACP was calling for the student to be removed from campus, and the black student union was also suggesting that that person should be removed from campus. And that goes to the heart of the First Amendment, and the cases that we’re going to be talking about today, and what that means. And I think it really does raise a very interesting and fascinating question; is allowing that person, let’s assume that that is allowable on campus. Does that make us a better society? For some of us, we just accept that it does make us a better society. And for some of us, we think it should not, it doesn’t think it’s a better society. So I think it’s an interesting and open question. Is it worth it for speech to allow somebody to do that? At a school campus? That’s what I hope we talk about today. Because I know we all don’t agree on that.”
MacRoberts reviewed several important First Amendment cases throughout history by first discussing the influence on our Founding Fathers from Cato’s Letters:
“Cato’s Letters were written in the early 1700s by John Trenchard and Thomas Gordon. They were instrumental to the founders, and Cato’s letters really informed the views of our founders. And there’s a particular letter written in 1720, Cato’s letter number 15. They wrote that freedom of speech is the great bulwark of liberty. And without freedom of thought, there can be no such thing as wisdom, and no such thing as public liberty, without freedom of speech, which is the right of every man. And the sacred privilege is so essential to free government that the security of property and the freedom of speech always go together. And freedom of speech is of such infinite importance in the preservation of liberty that everyone who loves liberty ought to encourage freedom of speech. “
“The Sedition Acts of 1798 prohibited publishing ‘any false, scandalous, and malicious writing, or writings against the government of the United States, or either house of Congress, or the President, with intent to defame, or to bring them into contempt or disrepute.’ And President Adams’ administration used the Sedition Acts to prosecute members of Thomas Jefferson’s party. So here we are. This is directly calling into a question, First Amendment free speech principles.
Artwork of Alien and Sedition Act courtesy of ushistory.org
“The state of Virginia issued a resolution saying that the Sedition Acts were unconstitutional. Which is pretty interesting. Like, in modern times, who’s heard of a state issuing a resolution that something that Congress has done is unconstitutional? I couldn’t think of an example quickly off the top of my head. It’s pretty neat, but that’s what they did. And, of course, that doesn’t mean that it’s unconstitutional, but that was the opinion of the State of Virginia. So then, here comes James Madison. He published a report in response to the Virginia Resolution, essentially defending the Virginia Resolution. And he wrote that speech that creates a contempt, or disrepute, or hatred among the people, can only be determined by free examination thereof, and a free communication among the people thereon. And what I take that to mean is the response to speech you don’t like is to examine it, to actually have more speech, not less speech. So when we’re talking about speech at the time of our Founders, we’re talking about very similar things to today. Politicians were concerned that they were being made fun of, that they were being defamed, we’re hearing the same things during this administration, and perhaps other administrations. And so these things are coming full circle.”
“So what is the Liberty Pole? It’s actually a pretty revolutionary, a pretty aggressive, caustic way of thumbing your nose at the government. You are taking a pole with flags on it with an orange stocking cap on top, and you’re putting it up in the town square for everybody to see that is basically thumbing your nose at the government. And I had totally forgotten about this, and then here we are. Look at everybody hoisting the Liberty Pole. And what are revolutionary… I mean, could you imagine what would happen, let’s say, in the City of Ottawa. If a bunch of people put up a pole that was used as perhaps threatening to the city government, or if you did it in Topeka, against the state government or in DC. But here, this was I mean, this was happening, and it was totally okay.”
“Charles Schneck was mailing pamphlets through the mail, urging people to resist the WWI draft. He was saying that the draft amounted to slavery. He was charged with violating the Espionage Act, and he was convicted. And it went up on appeal, and the conviction was upheld. And Justice Holmes wrote this opinion: ‘We admit that in many places, and in ordinary times, the defendants in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances, which is done.’ He went on to say, ‘When a nation is at war, many things that might be said in time of peace are such a hindrance that its effect, and that their utterance will not be endured so long as men fight, and that no court can regard them as protected by any constitutional right.'”
“How many of you have heard, ‘you can’t shout Fire! in a crowded theater’? That was not the quote, but that’s how everybody remembers the quote. What he said was, and it’s still wrong, but what I’m gonna tell you, what the real quote is, so you can correct people and be very pedantic about it. (Justice Holmes wrote) ‘The most stringent protection of free speech would not protect a man from falsely shouting in a theater and causing a panic.’ There was never any crowded theater parts. Everybody says it. That’s not part of it. And the falsely shouting is also really important, and there are actually cases where courts are saying, ‘You can’t shout a Fire! in a crowded theater.’ It’s just an example.
But the next time you hear that shouting fire analogy, I want you guys to push back!”
“Who thinks that schools should be allowed to require students to pledge allegiance or salute the flag?
“What is, I think, most important about this case is whether or not the school can require it. And what was happening was that they were required to salute the flag and recite the Pledge of Allegiance. And here’s what I thought was really interesting about the case: students who did not recite the Pledge of Allegiance or salute the flag were threatened with reform schools, which were used for criminally active juveniles. So if you didn’t do it, you were threatened to be sent to those schools. And parents were threatened for prosecutions for causing juvenile delinquency. And I think it was a great discussion that we just had because the people who sued West Virginia over this were Jehovah’s Witnesses. They did not believe in reciting the Pledge of Allegiance or saluting the flag. But the case was not decided on religious grounds. It was decided on free speech grounds. And I think that this decision is 6-3, okay, so it’s not unanimous, there were dissenting viewpoints on this case. But what I love about this case, a lot of different, just as this discussion showed, there are a lot of people who like the Pledge of Allegiance, but then it gets really strange when we’re talking about, do you require it? Like, I love the Pledge of Allegiance. I loved seeing it as a kid. I was a Boy Scout. I am an Eagle Scout, so like that stuff is really important to me. At the same time, I agree with the Supreme Court that you can’t force somebody to do that.
“And here’s what the Supreme Court said, who said it far better than I ever could: ‘The freedom to differ is not limited to things that do not matter much. They’re being a mere shadow of freedom. The test of its substance is the right to differ as to the things that touch the heart of the existing order.’ And here’s my favorite quote (from Justice Robert Jackson)I think of any first amendment case coming up: ‘If there is any fixed star that are in a constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act in their faith therein. If there are any circumstances which permit an exception, they do not now occur to us, we think the action of the local authorities in compelling to fight; salute and pledge transcends constitutional limitations on their power. and invades the spirit, the spirit of intellect, and spirit, which is the purpose of the Constitution, to reserve from all official control.
“This case was in 1943. I think about that. Like, what was going on in 1943 in the United States? World War II, and the United States Supreme Court is now saying, at that time, you cannot force kids to do this. And I love the ‘fixed star and the constitutional constellation’. It’s such a powerful, in my mind, turn of phrase, and it’s been used since then.”
“The village of Skokie, IL, had about 70,000 people, which I think is maybe a little bit smaller than Lawrence, Kansas. About 40,000 of the residents were Jewish, and thousands of those residents had survived the Holocaust, had survived concentration camps. And what the Nazi Party wanted to do was parade or essentially march through the town of Skokie. And so, they had announced their intention to do this, and there were a lot of concerns, obvious concerns about what would happen if the Nazis were actually allowed to parade through this predominantly Jewish town. And so the town of Skokie passed several ordinances; you had to get a permit to conduct these marches, but in connection with the permit, you had to post a $300,000 bond. You had to have the $50,000 property damage insurance policy, and there was a prohibition on materials that would promote hatred toward persons.
“I was struck by the verbiage in the opinion because it was clear to me that the court was struggling so much with this decision. And here’s what they said: If any philosophy should be regarded as completely unacceptable to a civilized society, it’s that of the plaintiff. Who, while disavowing on the way to stand any advocacy of genocide, have never, nevertheless, deliberately identified themselves with a regime whose record of brutality and barbarism is unmatched in modern history. That would be a good place to start. But under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.”
This was a 5-4 decision by Justice Brennan, and it’s a really interesting opinion. I would commend you to read it. What happened was Greg Johnson burned an American flag in front of the Dallas City Hall. He was protesting the Reagan Administration. If memory serves, there are a lot of people who were demonstrating, but he was the only one who was prosecuted, and there’s evidence in the record that says several offenders were seriously offended by the flag burning. And he was convicted of flag desecration, and then it goes up to the United States Supreme Court.
The majority opinion said: We were tempted to say, in fact, that the flags deservedly cherished place in our community will be strengthened, not weakened by our holding today. The holding was, you can be able to burn the flag. Our decision is a reaffirmation of the principles of freedom, and inclusiveness that the fund best reflects, and that the condition that our toleration of criticism, such as Johnson’s, is a sign and source of our strength.Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is that in the bombardment, the flag has survived at Fort McHenry. It is a nation’s resilience, not its rigidity, that Texas sees reflected on the planet. And it is that resilience that we reassert today. And the way to preserve the fund special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
MacRoberts concluded his presentation by recounting cases that KJI has represented in recent years.
