Reflection: Struggle between the empowered and the unempowered

By Emma Collins, F/G Scholar

Supreme Court cases often involve a legal struggle between the unempowered minority and the empowered majority, and First Amendment cases are no different. In fact, First Amendment cases may present this struggle more clearly because in many cases, those who are being silenced are the same people whose voices often have little power. Such is the case for the following five cases: Abrams v. United States (1919), Edwards v. South Carolina (1963), Tinker v. Des Moines (1968), Texas v. Johnson (1989) and Snyder v. Phelps (2010).In Edwards, Abrams and Tinker, the petitioners (Edwards, Abrams and Tinker) were all members of groups that have historically been disenfranchised in the United States: African Americans, immigrants and children, respectively. The other two cases, Johnson and Phelps (or the Westboro Baptist Church), involved individuals who, while not typically in minority groups, were members of minority groups because of their beliefs. In Texas v. Johnson, Johnson, a white man, burned a flag protesting President Ronald Reagan’s administration. At the time, protesting the president and its administration would have been going against the majority opinion. In Snyder v. Phelps, Fred Phelps with the Westboro Baptist Church was a minority because a majority of the country did not agree with the group’s views, which blamed the deaths of soldiers on America’s tolerance of homosexuality.

In all five cases, the groups challenged the beliefs of the people in power. The ways they expressed their First Amendment rights were viewed as a threat to the status quo or the peace. This was particularly true in Abrams when six Russian immigrants released pamphlets encouraging a strike of the production of munition necessary for the war effort. This, in the majority opinion of the Supreme Court justices, directly challenged the safety of the United States by potentially jeopardizing the war movement. This is the only one of the five cases discussed in class where the Supreme Court ruled in favor of restricting the First Amendment.

The Johnson case was similar in that, to some opponents, the action of burning the American flag threatened the peace. When Johnson burned the flag, he offended people by desecrating what was considered by some to be a sacred object. The Supreme Court ruled in Johnson’s favor, making it clear that an offensive form of speech or expression did not justify restricting that type of First Amendment right.

Edwards and Tinker also offended some people. In Edwards, the African American protestors were protesting what was the majority opinion that separate but equal was acceptable. In this case, the Supreme Court justices ruled that protesting the majority opinion was not grounds for arrest. The students in Tinker v. Des Moines also offended those who supported the Vietnam War. The students’ actions could also be viewed as an insult to those who believed that the First Amendment did not extend protections to middle school students. The justices ruled in favor of Tinker which extended First Amendment protections to students.

Snyder v. Phelps differs from the other four cases because unlike the other cases, the views expressed by Phelps were hateful. The group protested at a marine’s funeral with signs condemning both gays and the military. Although most people would find what the Westboro Baptist Church did as unacceptable, the Supreme Court ruled that even hateful speech is protected by the First Amendment.
What is protected under the First Amendment is often determined by past cases, as evidenced by the numerous previous First Amendment cases that are cited when justices’ write their opinions.

The cases tend to build off each other with previous cases impacting the outcome of current cases. Abrams v. United States was different in that the minority opinion written by Justice Oliver Holmes was more significant than the actual ruling against Abrams. Holmes’ dissent challenged the “clear and present danger” test, which he had supported only a few months before in another First Amendment case. In his dissent, Holmes criticized the clear and present danger test as being too restrictive of free speech. Although this dissent did not impact the legality of Abrams, it changed how future cases were determined. (It is also worth noting that a case in 1969, Brandenburg v. Ohio, officially overturned the clear and present danger test (“Brandenburg v. Ohio”).)

Although Abrams didn’t necessarily broaden the law in the legal sense, it changed how future cases were decided by expanding the protections offered under the First Amendment. Edwards expanded these protections. Edwards affirmed the legality of protests, particularly protests that challenged a majority opinion. Justice Potter Stewart, in his majority opinion, referred to the protest in this case as “an exercise of these basic constitutional rights in their most pristine and classic form” (“Edwards v. South Carolina”). This case set the precedent that peacefully protesting an unpopular opinion was protected under the First Amendment.

The rights guaranteed in Edwards v. South Carolina were extended to children in Tinker v. Des Moines. Wearing black armbands in school was not viewed by the Supreme Court justices as disruptive, which was an important precedent set in Edwards v. South Carolina. The protestors in Edwards won their case because they weren’t disruptive; they remained peaceful the entire time. The students in Tinker v. Des Moines were likewise peaceful and did not disrupt class; thus, their right to protest was protected under the First Amendment.

Tinker also addressed symbolic speech. The students used black armbands as their means of protesting the war rather than actual speech. Tinker helped establish that symbolic speech was also protected under the First Amendment, which impacted Texas v. Johnson because flag burning was also viewed as symbolic speech. When taken literally, the First Amendment forbids Congress from passing laws that restrict religion, speech, the press, peaceful assembly and the ability to petition the government (LII Staff). Nowhere in the First Amendment is symbolic speech, such as wearing black armbands or burning a flag, mentioned, but the justices ruled in Tinker, and later Johnson, that symbolic speech was protected under the First Amendment.

Johnson helped set the precedent that an offensive means of expression was not justification for First Amendment restrictions. This benefited Snyder v. Phelps because the signs used by the Westboro Baptist Church were considered hateful and offensive by most people. The justices ruled, just as they did in Johnson, that offensive expression is not illegal.

Together, the cases have narrowed down what can be legally prosecuted. Their outcomes clearly indicate that symbolic speech, peaceful protests that challenge the majority opinion and offensive forms of expression are not grounds for restriction of free speech. In today’s time, these cases remain relevant because they make it clear that the expression of offensive ideas, such as the increased speech by white supremacists, is protected under the First Amendment.
These cases also make it clear that the First Amendment protects peaceful speech. Disruptive protests or violence, like violence instigated by the Antifa movement, are not protected under the First Amendment (Williams). These five cases do expand the First Amendment protections, but they also clearly illustrate what is and is not protected under the First Amendment. Most peaceful speech, expression or protest is protected, regardless of what it challenges. But if that speech or protest moves into territory that becomes disruptive or potentially dangerous, then protection is not guaranteed.

Works Cited
“Brandenburg v. Ohio.” Global Freedom of Expression, Columbia University, Accessed 23 Sept. 2018.
Class presentations

“Edwards v. South Carolina.” Oyez, Accessed 23 Sept. 2018.

LII Staff. “First Amendment.” LII / Legal Information Institute, Legal Information Institute, 10 Oct. 2017, Accessed 23 Sept. 2018.

Williams, Jennifer. “Antifa clashes with police and journalists in Charlottesville and DC,” Vox, 12 Aug. 2018, Accessed 23 Sept. 2018.

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