In the fall of 1931, a nineteen-year-old African American named Angelo Herndon went to Atlanta to serve as an organizer for the Communist Party. Even at that young age, Angelo was already experienced in hard labor and in leftist politics. Five years earlier, he had left home to work in the mines of Kentucky and for the railroad in Alabama. He became an enthusiastic convert to Communism and his activities led to a few legal skirmishes with Alabama authorities.

In the mid-1970s, a serial killer terrorized the New York boroughs of the Bronx, Queens, and Brooklyn, leaving six dead and many more wounded. In a letter left at one of the crime scenes, the killer identified himself as the “Son of Sam.” The moniker stuck. As the shootings continued, public concern escalated and a widespread manhunt ensued. In August of 1977, police arrested one David Berkowitz, who quickly confessed and ultimately pled guilty to the crimes. He was sentenced to twenty-five-years-to-life for each murder, to be served sequentially. An oddity of New York law, however, made him technically eligible for parole every few years once he completed the first term.

In this chapter, we turn to the complex and contentious issue of speech in the public schools, focusing on problems related to student speech. The Supreme Court has issued a number of important rulings in this area. Unfortunately, they leave us in a doctrinally puzzling place, for several reasons.

As we have seen, the Supreme Court repeatedly has given primacy to freedom of speech, recognizing our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”1 And it has done so across a wide range of content and forms of expression. The Court has protected a citizen’s right to burn American flags,2 to display expletives on their clothing,3 and to criticize government officials.4

Throughout the history of First Amendment jurisprudence, the Supreme Court has struggled with the question of how to treat speech that offends and insults an individual or group of people. Proponents of restrictions on such speech generally have relied upon three arguments. First, the speech often has little value and contributes nothing to the marketplace of ideas. Second, such speech amounts to a verbal assault that injures its target, even if not physically. And, finally, such speech may prompt the targeted group or individual to respond with violence of their own.

Some of the greatest challenges in interpreting the free speech clause of the First Amendment have come in the field of campaign finance regulation. It is arguably the doctrinal area where we see the Court’s most extreme swings, overruling established precedent and ignoring empirical realities because of ideological shifts among its members. Furthermore, as we will see, the Court’s missteps began early: by initially framing the campaign finance debate as one focused on problems of “corruption,” the Court foreclosed a more nuanced understanding of the influence of money in politics.

Chapters 5 and 6 describe the very different views that the Court held of the First Amendment prior to 1919 and then from 1919 to 1963. Before 1919, the Court certainly did not think the First Amendment meaningless. But, as we have seen, the Court did view the protections that the Constitution afforded as so narrow and fragile that they collapsed under the weight of almost any articulable government interest.

As we saw in Chapter 5, prior to 1919 the Supreme Court narrowly interpreted the First Amendment and broadly construed the government’s authority to restrict worrisome speech – and did so with remarkable uniformity. Of course, so entrenched a paradigm does not change overnight. And, certainly, 1919 does not signal a sudden and complete reversal in the Court’s approach to free speech doctrine.

The Court’s increasingly categorical approach to First Amendment doctrine created a conceptual tool box: use this analysis for defamation, that one for obscenity; use this analysis for a content-based regulation, that one for a content-neutral time, place, and manner restriction; use this analysis for a traditional public forum, that one for a nonpublic forum; use this analysis for a prior restraint, that one for a subsequent punishment; and so on. In general, this approach yielded fairly clear guidance, although reasonable people can disagree about the merits of the results. Along the way, however, the Court encountered some hard cases that called for their own distinctive approaches.

Two common features characterize the Court’s First Amendment decisions prior to 1919. First, there were relatively few of them. This is, in part, attributable to the fact that it was not clear until 1925 that the First Amendment applies to the states.

Debates about free expression are a fixture of everyday discourse. Discussions of free speech issues abound, not just on college campuses and in law schools, but also in the workplace, in living rooms, around dinner tables, at social events, and in the popular media. Those conversations explore such issues as whether a professional football player has a right to protest during the national anthem, whether the government has the power to restrict the speech of people with extremist views, whether someone should be able to express dissent by burning the flag, whether “political correctness” results in objectionable self-censorship, whether campaign contributions should count as speech, and whether the media deserve the protections that the First Amendment provides or abuse those privileges in order to spread “fake news.” Mainstream debates even delve into such exotic questions as whether the President has to let people with whom he disagrees participate in his Twitter feed and whether the First Amendment gives a baker the right to refuse to make a cake for a gay wedding that he opposes on religious grounds. Across all of these issues, people recognize that speech matters but also has consequences.

Hard cases raise hard questions. Take, for example, Snyder v. Phelps.1 That case involved picketing by protestors from the Westboro Baptist Church on public grounds near the funeral of Marine Lance Corporal Matthew Snyder, who died in Iraq in the line of duty. His father, offended by the demonstrators’ signs, sued Westboro for intentional infliction of emotional distress and other claims. A jury awarded him millions of dollars in damages, but the Supreme Court found the speech protected and reversed the verdict.

In Chapter 1, we cited the Supreme Court’s decision in Cohen v. California1 and quoted its famous admonition that “one man’s vulgarity is another man’s lyric.” Reasonable people could question the lyricism of the speech at issue in Cohen, but it plainly qualified as vulgar. In that case, one Paul Robert Cohen expressed his opposition to the Vietnam War by wearing in a public courthouse a jacket that had the words “Fuck the Draft” emblazoned across its back.