Freedom of Expression/Legal Codification/US implicit
Has it been interpreted as being implicit in the US Constitution?
Yes. The First Amendment is presumed to guarantee the right to free expression by guaranteeing the right to freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, though the phrase “freedom of expression” is not explicitly used in the Constitution. The United States Supreme Court has gradually portrayed freedom of expression as being implicit in the U.S. Constitution. This reality stems from legitimate discourse on activities that may not fall under the grammatical definition of speech, but nevertheless warrant protection by the judiciary in order for democratic norms to prevail. From early cases pertaining to free religious exercise to several landmark judgments in the latter half of the 20th Century, the Court has introduced and expanded its mythology surrounding free expression. Some forms of expression that may be protected—and regulated—include religious expression, protests, fighting words, imminent threats, obscenity, and expressive student conduct in academic settings.
Prior to various cases dealing with the Free Exercise Clause of the First Amendment, no significant attempt had been made by the court to examine the relationship between free expression and American constitutional law. Despite the separate inclusion of freedom of religion in the Constitution, cases revolving around religious activity have shaped the Court’s commentary on free expression. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court ruled in favor of a group of Jehovah’s Witnesses in New Haven who had been prosecuted for engaging in religious solicitation without a license from the local government. The justices primarily asserted that the Constitution guarantees the “freedom to act” for the Cantwell solicitors, or other groups that engage in religious expression (Justice Roberts, 1940). Solicitation can neither be termed as purely speech or purely expressive, however, due to the combination of speech and physical expeditions that are typically involved. While the freedom to “act” may insinuate a right to engage in expressive activities, the justices never directly mentioned expression—a reality that, combined with the ambiguous nature of soliciting, did not establish expression as a fundamental right.
Given the legal ambiguity established by Cantwell, the Court likely understood the necessity of defining expression as it pertained to religious issues. In Sherbert v. Verner, 374 U.S. 398 (1963), the justices established a compelling interest test for government statutes that potentially abridge certain forms of religious expression. Writing for the majority in response to a lawsuit from a Seventh-Day Adventist who was fired and denied unemployment benefits for refusing to work on Saturday, Justice Brennan asserted that “the imposition of such a condition [labor mandates lacking in exemptions for religious workers] … inevitably deterred or discouraged the exercise of First Amendment rights of expression” for religious groups (Justice Brennan, 1963). Given that this ruling directly mentioned free expression in response to a lawsuit claiming religious discrimination, it can be argued that Sherbert clarified the position of free religious expression implied by Cantwell.
Following several landmark decisions on expression issued by the Warren and Burger Courts, religious exercise reintroduced itself in the ongoing debate over the extent to which freedom of expression can be invoked in the courtroom. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court rejected a Free Exercise Clause challenge of a narcotics statute in Oregon (specifically, one that regulated Peyote, which was ingested by Native American Church adherents as a religious custom) while acknowledging attempts in the past to “punish the expression of religious doctrines [the state] believes to be false” (Justice Scalia, from United States v. Ballard, 322 U.S. 78 (1944). In a ruling that was sharply criticized by religious groups following its release, the Court confirmed the implicit right of expression as it pertains to religion. While it may be argued that the decisions in Cantwell, Sherbert, and Smith merely affirmed the previously enumerated right of free religious exercise, the various references to expression in all three of these decisions fit within a broader line of judicial reasoning in expression-based cases that extend beyond religion, which will be further discussed below.
As Smith indicates, The Court’s acknowledgment of freedom of expression being an implicit right can be evidenced by decisions that limit this right altogether. In ruling that expressive activities that constitute a clear and present danger to the public are not protected, for example, the Court implies that any activities that do not exhibit this danger are lawful. This precedent was established by Schenck v. United States, 249 U.S. 47 (1919), which affirmed the ability of government officials to censor modes of expression (i.e. Charles Schenck's pamphlets, which advocated for illegally avoiding the draft) that impede on the government’s ability to wage war, while acknowledging that such activities may be protected during times of peace. As the distribution of pamphlets would likely constitute expression rather than physical speech, it may be inferred that the justices, in limiting freedom of expression in some cases, acknowledged its legality in others.
The Court furthered this assertion in United States v. O’Brien, 391 U.S. 367 (1968) by ruling that the burning of draft cards in public places during times of war is not protected speech, as the prohibition of this activity was “an important or substantial governmental interest unrelated to the suppression of free expression” (Justice Warren, 1968). In both decisions, the Court chose to constrain—rather than outlaw—forms of expression that cannot be termed as speech. Finally, governmental regulations for public protests were affirmed in Cox v. New Hampshire 312 U.S. 569 (1941), in which the justices asserted that “time, place, and manner restrictions” have the effect of “safeguarding the good order upon which [civil liberties] ultimately depend” (Justice Hughes, 1941). Given that no right can be limited without prior acknowledgement of its existence, it can be argued that the Court implicitly recognized free expression in Schenck and Cox before directly mentioning it in O’Brien.
In light of the Court’s commentary on free expression when confronted with issues pertaining to free exercise and public disturbances, its decisions in Barnette, Tinker, and Morse represent the most notable examples of free expression being recognized as an implicit right. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the court condemned an effort by school administrators to force students to salute the American Flag as an “effort” to “muffle expression” in the schoolhouse (Justice Jackson, 1943). Despite their dissent being primarily motivated by personal religious beliefs, the plaintiffs alleged a violation of the Speech Clause of the First Amendment. The Court clearly interpreted the situation as compelled expression, as defining it as physical speech would not accurately reflect the situation.
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court broadly affirmed the implicit right to free expression in a decision that largely reflected the language of cases that have already been discussed. The justices affirmed that any governmental interest in promoting order in public schools is “not enough to overcome the right to freedom of expression” enjoyed by students, who “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Justice Fortas, 1969). In this instance, the Court emphasized freedom of expression without qualification, as its commentary on restrictions that school officials could plausibly enact without abridging the rights of students serves to further affirm the existence of free expression. This rationale was reaffirmed by Morse v. Frederick, 551 U.S. 393 (2007), in which the Court limited student speech (or, more precisely, displaying a banner) that can be “reasonably regard[ed] as promoting illegal drug use,” which remains a major example of the judiciary restricting the implicit right of free expression (Justice Roberts, 2002). In reaffirming and providing exceptions for the precedent set by Tinker (with the exception of Justice Thomas, who called for Tinker to be overruled), the Court maintained its record of acknowledging and limiting free expression.
Following the Court’s landmark decision in Tinker, the question of implicitness was all but resolved, and nearly all subsequent cases served to determine the scope—rather than legitimacy—of free expression. Eventually, the justices were again confronted with the issues of anti-war expression and profanity following peace activist Paul Cohen’s arrest in a California courthouse for wearing a shirt depicting an explicit anti-war slogan. In Cohen v. California 403, U.S. 15 (1971), the Court asserted that California’s law prohibiting such behavior “infringed [Cohen's] rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution,” which were extended to the states via selective incorporation through the Due Process Clause (Justice Harlan, 1971). In Texas v. Johnson, 491 U.S. 397 (1989), the Court again confronted the issue of expression deemed profane by governmental actors in ruling that the burning of the American Flag represented “expressive conduct” that was “sufficiently imbued with elements of [political] communication,” making it protected under the Due Process Clause (Justice Brennan, 1989).
In Cohen and Johnson, the Court rejected attempts by state government officials to impose limitations on forms of expression it viewed as offensive to the general public—a remarkable feat for freedom of expression, which would nevertheless be limited in other cases. Expression pertaining to pornographic material was hindered in Miller v. California, 413 U.S. 15 (1973), which concerned the right (or lack thereof) of businesses to distribute explicit content through the U.S. Postal Service. In ruling that obscene expression can be regulated while “acknowledging the inherent dangers of undertaking to regulate any form of expression,” the Court established a clear standard for certain forms of explicit expression that can be regulated (Justice Burger, 1973). In Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015), the justices ruled that state governments can reject proposed license plate designs on account of their potential to offend the general public due to their established history of “communicat[ing] messages from the States.” In particular, the Court cited Arizona's “Hereford Steer” License Plate, New Hampshire's “Old Man of the Mountain” License Plate, and various other examples of license plates in other states to affirm this argument (Justice Breyer, 2015).
In summary, the implicit right of free expression has developed from the commentary of free exercise cases and evolved into an implied right that the Supreme Court no longer questions. It does not contain any strict limitations, as any standard beyond the establishment of an overbearing governmental interest would negate its effect of addressing the shortcomings of the free speech clause.
Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/
Sherbert v. Verner, 374 U.S. 398 (1963) https://supreme.justia.com/cases/federal/us/374/398/
Employment Division v. Smith, 494 U.S. 872 (1990) https://supreme.justia.com/cases/federal/us/494/872/
United States v. Ballard, 322 U.S. 78 (1944) https://supreme.justia.com/cases/federal/us/322/78/
Schenck v. United States, 249 U.S. 47 (1919) https://supreme.justia.com/cases/federal/us/249/47/
United States v. O’Brien, 391 U.S. 367 (1968) https://supreme.justia.com/cases/federal/us/391/367/
Cox v. New Hampshire 312 U.S. 569 (1941) https://supreme.justia.com/cases/federal/us/312/569/
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) https://supreme.justia.com/cases/federal/us/319/624/
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) https://supreme.justia.com/cases/federal/us/393/503/
Morse v. Frederick, 551 U.S. 393 (2007) https://supreme.justia.com/cases/federal/us/551/393/
Cohen v. California 403, U.S. 15 (1971) https://supreme.justia.com/cases/federal/us/403/15/
Texas v. Johnson, 491 U.S. 397 (1989) https://supreme.justia.com/cases/federal/us/491/397/
Miller v. California, 413 U.S. 15 (1973) https://supreme.justia.com/cases/federal/us/413/15/
Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015) https://supreme.justia.com/cases/federal/us/576/200/
Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.