Free Speech on Trial FREE SPEECH ON TRIAL Communication Perspectives on Landmark Supreme Court Decisions EDITED BY RICHARD A. PARKER THE UNIVERSITY OF ALABAMA PRESS Tuscaloosa and London Copyright © 2003 The University of Alabama Press Tuscaloosa, Alabama 35487-0380 All rights reserved Manufactured in the United States of America Typeface: Granjon ∞ The paper on which this book is printed meets the mini- mum requirements of American National Standard for Information Science–Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. Library of Congress Cataloging-in-Publication Data Free speech on trial : communication perspectives on landmark Supreme Court decisions / edited by Richard A. Parker. p. cm. Includes bibliographical references and index. ISBN 0–8173–1301-X (cloth : alk. paper)—ISBN 0–8173–5025-X (pbk. : alk. paper) 1. Freedom of speech—United States—Cases. I. Parker, Richard A. (Richard Anthony), 1945– KF4772.A7 F74 2003 342.73′0853—dc21 2003001148 British Library Cataloguing-in-Publication Data available Contents Preface vii Introduction 1 Franklyn S. Haiman Communication Studies and Free Speech Law 9 Richard A. Parker Schenck v. United States and Abrams v. United States 20 Stephen A. Smith Whitney v. California 36 Juliet Dee Stromberg v. California 52 John S. Gossett Near v. Minnesota 69 John S. Gossett and Juliet Dee Chaplinsky v. New Hampshire 85 Dale Herbeck West Virginia State Board of Education v. Barnette 100 Warren Sandmann New York Times v. Sullivan 116 Nicholas F. Burnett United States v. O’Brien 130 Donald A. Fishman Brandenburg v. Ohio 145 Richard A. Parker vi / Contents Cohen v. California 160 Susan J. Balter-Reitz Kleindienst v. Mandel 172 Mary Elizabeth Bezanson Miller v. California 187 Joseph Tuman Buckley v. Valeo 203 Craig R. Smith FCC v. Paci¤ca Foundation 218 R. Wilfred Tremblay Central Hudson Gas & Electric v. Public Service Commission 234 Joseph J. Hemmer Jr. Hazelwood School District v. Kuhlmeier 250 Andrew H. Utterback Hustler Magazine, Inc. v. Falwell 264 Edward C. Brewer Texas v. Johnson 281 David J. Vergobbi Reno v. ACLU 298 Douglas Fraleigh Conclusion 313 Ann M. Gill Contributors 327 Case Index 331 Subject Index 339 Preface This collection of essays evolved from a panel presentation on “The Most Important Free-Speech Decisions of the Supreme Court” at the 1999 conven- tion of the National Communication Association. Happily, eight of the nine scholars who originally presented in Chicago remained with the project; their essays appear in print here for the ¤rst time. They are joined by twelve colleagues who share an interest in scholarly investigations at the intersection of communication studies and the law. Each essay focuses on one or two landmark Supreme Court cases. Con- tributors were asked to address two questions: Why are these cases important to the evolution of freedom of expression in America? How do communica- tion theory and free speech law interrelate within the context of the cases? In the introduction to this collection of essays, Franklyn Haiman provides much needed historical perspective to the project as he relives the origins of communication scholarship in First Amendment law. Haiman also explores some of the insights that communication scholars contribute to questions of the law. My essay “Communication Studies and Free Speech Law” offers a brief theoretical prologue to, and historical survey of, contributors’ methodologies. It also summarizes each contributor’s theoretical perspective. The 19 essays that focus on landmark cases in free speech law constitute the heart of the project. The essayists employ three major approaches and frequently combine these in fruitful ways. One procedure is to describe and interpret the situation and context of the communicative events that precipi- tated the con®ict between the state and the accused. A second method is to analyze implicit communication theories that reside in judicial opinions. The third strategy is to demonstrate how judicial opinions have advanced our understanding of what communication is and how it functions in a demo- cratic society. viii / Preface The scholar or student of communication seeking a coherent explanation of the development of case law in freedom of expression may ¤nd no better discussion than that contained in the essay which concludes this volume. Ann Gill weaves the work of the contributors into the fabric of the law with an appreciation of the grand design implicit in the work of the framers of the First Amendment. I extend my gratitude to those who contributed to the completion of this volume and my appreciation to the many whose support may have gone un- recognized. First and foremost, two scholars in®uenced the approach to re- search emphasized in this collection of essays. William A. Linsley of the University of Houston taught a course in freedom of expression and wrote extensively about the development of free speech law; his efforts sparked the academic interests of many students, including me. William Bailey of the University of Arizona was arguably the ¤rst communication scholar to con- tend that the courts have an obligation to revise or abandon pragmatic as- sumptions about the communication process that fail to accord with contem- porary knowledge. This project is, in many ways, a product of these mentors’ in®uences. Many others have helped make this collection of essays a reality. The fac- ulty and administrators of the School of Communication at Northern Ari- zona University—especially former and current Deans Sharon Porter, Paul Helford, and Roger Lavery—provided invaluable support for various aspects of the project. Nick Burnett’s eloquent insistence that communication theory and research should be a focal point of the essays helped de¤ne the book. Juliet Dee, John Gossett, Frank Haiman, and Andrew Utterback stepped in at critical moments with timely assistance. The ad parody that appears in Ed Brewer’s essay on Hustler Magazine, Inc. v. Falwell is copyrighted and is used with the express written permission of Larry Flynt Publications, Inc. Paul Siegel graciously provided a ¤le copy of the ad parody. The knowledgeable and capable staff at the University of Alabama Press, as well as copyeditor Sandra Williamson, have performed the remarkable task of converting an idea into a publication. My deepest appreciation, however, is reserved for my wife and scholarly soul mate, Lea Parker, who has encouraged, advised, consoled, and ener- gized me throughout this project’s development. This work would not be in readers’ hands without her unfailing assistance. Free Speech on Trial