that it was not only what the Court called “symbolic expression” or “expressive conduct.” The Court also found that protected speech didn't have to be about politics and elections, as the founding generation had thought of it, but could be about many other things. Indeed, as the cases in their entirety show, they could be about almost everything. Thus, in the 1977 case of
Abood v. Detroit Board of Education,
the Burger Court could fairly observe, “It is no doubt true that a central purpose of the First Amendment was to protect the free discussion of governmental affairs. But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexclusive list of labels—is not entitled to full First Amendment protection.”
Around the margins of expression, the Court sometimes said no. In 2000, for example, the Rehnquist Court said that the First Amendment did not protect from government regulation nude dancing in a commercial establishment. It was not that this activity had no First Amendment protection as a form of expression, but it was sufficiently removed from core free-speech concerns that government could regulate it in the interest of public morality and decency.
Such cases as this duly noted, the Court's decades-long march has been toward greater protection for a wide array of expressive activity. Issues involving our system of self-government merit the highest level of protection, but the First Amendment's sweep is vast, encompassing the full range of human expression—save for a small category of patently antisocial speech or communication, such as “fighting words” and obscenity.
In the process, the Court demonstrated a deepening reliance on the principle of
equality.
That is, government should treat similarly situated individuals and groups alike. “Thou shalt not discriminate” is the moral underpinning of not only equal protection but also of free speech. Almost a Golden Rule of constitutional law now embodied in First Amendment jurisprudence is this: Do unto others as you would have them do unto you.
Equality has proved a powerful tool in deciding free-speech questions, a strongly unifying principle in the Rehnquist Court years. For example, the Court has considered whether certain disfavored voices or perspectives, while not being prohibited, may nonetheless be treated differently from other speech. Overwhelmingly, the Court has upheld the claims of those who have been excluded from “speaking” by well-meaning but mistake-prone government officials. (We explore these cases later in the chapter.) Equality principles have carried the day in these and other cases. The High Court often has had to overturn a contrary lower court judgment. Indeed, lower federal courts have been somewhat slow to understand equality's power.
One issue where equality's power has been especially evident involves speech with religious content. Government officials know enough to permit political or social groups to speak on an equal footing. It won't do to say that Naderites are in but conservative groups are out. But the harder question is whether religious voices may be excluded from a forum—a place for speaking—provided by a government trying to maintain church-state separation. How, in other words, does the ban on “establishment” of religion fit with the free-speech guarantee?
State and federal judges alike have struggled with what seemed to them an Establishment Clause-free speech riddle. Courts around the country tilted strongly toward keeping speech with religious content out of the public forum. Their reasoning has been grounded in the Establishment Clause's requirement of separation of church and state. The relevant words of the First Amendment are simple but not immediately self-evident: “Congress shall make no law … respecting an establishment of religion.” Yet, time and again, the Supreme Court has disagreed with and
Abood v. Detroit Board of Education,
the Burger Court could fairly observe, “It is no doubt true that a central purpose of the First Amendment was to protect the free discussion of governmental affairs. But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexclusive list of labels—is not entitled to full First Amendment protection.”
Around the margins of expression, the Court sometimes said no. In 2000, for example, the Rehnquist Court said that the First Amendment did not protect from government regulation nude dancing in a commercial establishment. It was not that this activity had no First Amendment protection as a form of expression, but it was sufficiently removed from core free-speech concerns that government could regulate it in the interest of public morality and decency.
Such cases as this duly noted, the Court's decades-long march has been toward greater protection for a wide array of expressive activity. Issues involving our system of self-government merit the highest level of protection, but the First Amendment's sweep is vast, encompassing the full range of human expression—save for a small category of patently antisocial speech or communication, such as “fighting words” and obscenity.
In the process, the Court demonstrated a deepening reliance on the principle of
equality.
That is, government should treat similarly situated individuals and groups alike. “Thou shalt not discriminate” is the moral underpinning of not only equal protection but also of free speech. Almost a Golden Rule of constitutional law now embodied in First Amendment jurisprudence is this: Do unto others as you would have them do unto you.
Equality has proved a powerful tool in deciding free-speech questions, a strongly unifying principle in the Rehnquist Court years. For example, the Court has considered whether certain disfavored voices or perspectives, while not being prohibited, may nonetheless be treated differently from other speech. Overwhelmingly, the Court has upheld the claims of those who have been excluded from “speaking” by well-meaning but mistake-prone government officials. (We explore these cases later in the chapter.) Equality principles have carried the day in these and other cases. The High Court often has had to overturn a contrary lower court judgment. Indeed, lower federal courts have been somewhat slow to understand equality's power.
One issue where equality's power has been especially evident involves speech with religious content. Government officials know enough to permit political or social groups to speak on an equal footing. It won't do to say that Naderites are in but conservative groups are out. But the harder question is whether religious voices may be excluded from a forum—a place for speaking—provided by a government trying to maintain church-state separation. How, in other words, does the ban on “establishment” of religion fit with the free-speech guarantee?
State and federal judges alike have struggled with what seemed to them an Establishment Clause-free speech riddle. Courts around the country tilted strongly toward keeping speech with religious content out of the public forum. Their reasoning has been grounded in the Establishment Clause's requirement of separation of church and state. The relevant words of the First Amendment are simple but not immediately self-evident: “Congress shall make no law … respecting an establishment of religion.” Yet, time and again, the Supreme Court has disagreed with and
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