The Supreme Court has ruled that the First Amendment protection of free speech does not prevent the government from requiring warning labels on some products, including cigarettes. Do you think this infringes on the rights of the tobacco companies?

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      Campus Speech

      In the 1980s and 1990s, many public colleges and universities implemented speech codes that were designed to combat discrimination and harassment on campus. These codes were intended to prohibit abusive language that attacks individuals because of characteristics such as their race, ethnic origin, religious beliefs, or sexual orientation.

      Some argue that racist and sexist speech stifles intellectual exchange and that such codes actually increase free speech by removing intimidation. Others denounce such restrictions as “political correctness” and argue that the codes reflect a political agenda. For example, some conservative Christians have complained that codes have been used to vilify their views. When Roger Williams University in Rhode Island temporarily froze funding for a college Republican newspaper that ran a series of articles condemning homosexuality, Jason Mattera, the editor of the paper at the time, said, “You’re not automatically a bigot if you don’t agree with [homosexuality]. What they’re essentially doing is silencing the only conservative voice here on campus.”⁶⁹ Based on such concerns, President Trump signed an executive order in March 2019 to protect free speech on college campuses, although some—such as the University of California system—called Trump’s proposal “misguided and unnecessary.”⁷⁰

      The Supreme Court has not directly ruled on the constitutionality of campus speech codes, but some lower courts have. For example, a federal court struck down a University of Michigan code in 1989 that banned “any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status.”⁷¹ An “interpretive guide” of the code issued by the University Office of Affirmative Action included examples of conduct that could be sanctioned. One example read, “A male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thus creating a hostile learning environment.” A graduate student in biopsychology, who was studying the biological bases of individual differences in personality traits and mental abilities, challenged the law. He feared that discussion of controversial theories about biologically based differences between the sexes and races might lead to sanctions against him. Although the court struck down the University of Michigan’s code on the grounds that it was overly broad and too vague, other campus codes still stand.

      Freedom of Assembly

      In addition to the freedoms of speech and of the press, the First Amendment guarantees “the right of the people peaceably to assemble.” Such assembly is essential to the free exchange of ideas. It is at the basis of everything from political parties to protest marches. But like other First Amendment freedoms, it is not absolute. As with speech, there are certain time, place, and manner restrictions. In other words, the freedoms of speech and assembly do not mean that people can assemble anytime, anywhere, and say whatever they want however they want. Just as students are not completely free to disrupt algebra class with political speech, the right of assembly must be balanced against other interests such as traffic safety, noise restrictions, and trespass laws.

      For example, as part of the civil rights struggle of the 1960s, Harriet Adderly and other university students assembled outside a jail in Tallahassee, Florida, to protest racial segregation and the earlier arrest of fellow civil rights demonstrators. However, their assembly took place on restricted property. The county sheriff warned them to move their protest elsewhere, but the protesters refused and were arrested for trespassing. The Supreme Court upheld their subsequent convictions, noting that the trespass statute was designed to further the security of the jail. Moreover, the protesters had no lack of notice, the law was clear and uniformly applied, and the arrest took place not because of the content of the protesters’ speech but because of their conduct: where they were saying it.⁷²

      In contrast, the Supreme Court overturned the convictions of civil rights protesters who were arrested on the grounds of the South Carolina state capitol. Unlike the jailhouse grounds, the area around the state capitol was open to the public and was considered a public forum: a place where people traditionally gather to express their views. And in contrast with the trespass ordinance in Florida, the breach of the peace ordinance that police used to arrest the protesters in South Carolina was vague and randomly applied. In fact, the breach of the peace was caused more by agitated onlookers than by the protesters themselves, who were peacefully singing hymns and songs such as “We Shall Overcome.” In this case, the arrest did appear to be based upon the content of the protesters’ speech and therefore violated the First Amendment freedoms of speech and assembly.⁷³

      Once again, it is sometimes difficult to determine when assembly is permissible and when it is not, especially in trying to determine precisely which locales constitute a public forum. Balancing public safety concerns with First Amendment rights can also be tricky. For example, the Supreme Court ruled in 1978 that the Chicago suburb of Skokie, Illinois—home to a large Jewish population—could not deny a permit for a march by the American Nazi Party.⁷⁴ Many in Skokie viewed it differently. They equated the Nazi march with constitutionally unprotected “fighting words” that would provoke a riot. In a 1942 case, the Supreme Court had suggested that some words are so inflammatory, so certain to provoke a violent response, that they are not deserving of free speech protection.⁷⁵ Others insisted that preventing the march would constitute a prior restraint; if a breach of the peace or riot ensued because of the march, the conduct should be punished after the fact. In the end, a federal court forced the City of Skokie to permit the Nazis to march.

      Consider, too, the case of the Westboro Baptist Church, whose 75 members have staged hundreds of protests to highlight their belief that the ills of the United States—from the 9/11 terrorist attacks to Hurricane Katrina and other natural disasters—are God’s punishment for a society that condones homosexuality. They first gained national attention by picketing the funeral of Matthew Shepard, a college student who was beaten to death in 1998 because he was gay. Their signs proclaimed that Shepard was in hell because “God Hates Fags.” More recently, the church has targeted funerals and burials of American soldiers killed in Iraq—carrying signs such as “Thank God for Dead Soldiers” and “God Hates Your Tears”—because they believe that U.S. combat deaths are an example of God’s just retribution for homosexuality in America.⁷⁶

      time, place, and manner restrictions The stipulation that the freedoms of speech and assembly do not mean that people can assemble anytime, anywhere, and say whatever they want, however they want.

      Such actions provoked the Southern Poverty Law Center to label the church a hate group. More than half the states have passed laws restricting graveside demonstrations. Congress also entered the fray by passing the Respect for America’s Fallen Heroes Act (Pub.L. 109-228) to establish buffer zones around military cemeteries during burials; President George W. Bush signed