Hostname: page-component-586b7cd67f-dsjbd Total loading time: 0 Render date: 2024-11-23T21:39:54.877Z Has data issue: false hasContentIssue false
  • English
  • Français

Method and Objectivity in Free Speech Adjudication: Lessons from America

Published online by Cambridge University Press:  17 January 2008

Ivan Hare
Get access Rights & Permissions [Opens in a new window]

Abstract

Following a dispute with his black neighbour, a white man in Virginia erects and ignites a crude home-made cross on the neighbouřs lawn. The white man is convicted under a law prohibiting intimidation by use of a burning cross.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 54 , Issue 1 , January 2005 , pp. 49 - 87
Copyright
Copyright © British Institute of International and Comparative Law 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Virginia v Black, Elliott and O'Mara and Elliott 123 SCt 1536 (2003) and R v British Broadcasting Corporation, ex parte ProLife Alliance [2004] 1 AC 185. The Supreme Court gave judgment in Black on 7 Apr 2003; the House of Lords decided the ProLife Alliance appeal on 10 Apr 2003 and gave their reasons the following month.Google Scholar

2 Kagan describes the distinction as ‘the keystone of First Amendment law’ (Kagan, E ‘Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine’ (1996) 63 U Chi L Rev 413, 443);CrossRefGoogle Scholar Stone regards it as ‘perhaps the most intriguing feature of contemporary first amendment doctrine’ (Stone, GR ‘Content Regulation and the First Amendment’ (1983) 25 Wm & Mary L Rev 189, 189).Google Scholar The history of content-based method is traced in Stephen, PB ‘The First Amendment and Content Discrimination’ (1982) 68 Virginia L Rev 203, 214–31.Google Scholar

3 The First Amendment itself (in relevant part) reads: ‘Congress shall make no law…abridging the freedom of speech’ (1791).Google Scholar

4 Gitlow v New York 268 US 652 (1925).Google Scholar

5 Rust v Sullivan 500 US 173 (1991) (upholding a decision which prohibited federally funded healthcare projects from advocating abortion as a form of family planning).Google Scholar

6 Hague v CIO 307 US 496 515 (1936), per Roberts, J.Google Scholar

7 See (nn 44–53) and associated text.Google Scholar

8 New York Times v Sullivan 376 US 254 (1964) (political expression); Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc 425 US 748 (1976) (commercial speech); and Young v American Mini Theatres, Inc 427 US 50, 64–5 (1976) (pornography).Google Scholar

9 Rosenbergerv Rector and Visitors of University of Virginia 515 US 819, 829 (1995), Burson v Freeman 504 US 191, 197 (1992), and Boos v Barry 485 US 312, 319 (1988) respectively.Google Scholar

10 The terms content and subject-matter neutrality are used interchangeably in the cases: see Perry Education Association v Perry Local Educators' Association 460 US 37, 59 (1983), per Brennan J (dissenting on the merits). Weinstein defines content-based laws as ‘ones in which the government seeks to regulate expression because of the message it conveys’Google Scholar(Weinstein, JHate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (Westview Press Boulder, CO 1999) 35).Google Scholar

11 468 US 641 (1984).Google Scholar

12 ibid 648, per White J.

13 Widmar v Vincent 454 US 263 (1981).Google ScholarCf Kennedy, J in Simon & Schuster, Inc v Members of New York State Crime Victims Board 502 US 105 (1991) and Burson v Freeman (n 9)211–14.Google Scholar

14 Simon & Schuster, Inc (n 13). ‘Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content’ (Turner Broadcasting System, Inc v FCC 512 US 622, 642 (1994) (emphasis added)).Google Scholar

15 See, eg, City Council of Los Angeles v Taxpayers for Vincent 466 US 789 (1984) and Ward v Rock Against Racism 491 US 781 (1989). This test has now been fused with that for expressive conduct set out in US v O'Brien 391 US 367 (1968) (see n 72 and associated text below and Clark v Community for Creative Non-Violence 468 US 288 (1984)).Google Scholar

16 403 US 15 (1971).Google Scholar

17 ibid, 26 per Harlan J.

18 In contrast, content-based (but viewpoint-neutral) restrictions on speech have been upheld from time to time by the Court. Examples include Burson v Freeman (n 9).Google ScholarSee Farber, DA ‘Content Regulation and the First Amendment: A Revisionist View’ (1980) 68 Geo LJ 727.Google Scholar

19 Ely, J ‘Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis’ (1975) 88 Harv L Rev 1482.CrossRefGoogle Scholar

20 491 US 397 (1989).Google Scholar

21 The Texas Penal Code, s 42.09 provided: ‘(b) For purposes of this section, “desecrate” means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.’Google Scholar

22 See (n 20) 406, per Brennan, J.Google Scholar

23 ibid 416–17, per Brennan J.

24 US v Eichman 496 US 310 (1990).Google Scholar

25 Consolidated Edison Company v Public Service Commission 447 US 530 (1980), per Powell, J.Google Scholar

26 Young v American Mini Theatres, Inc (n 8). The internal quotation is from New York Times v Sullivan (n 8) 270.Google Scholar

27 Among an extensive literature, see Meiklejohn, APolitical Freedom—The Constitutional Powers of the People (Harper New York 1960) and ‘The First Amendment Is an Absolute’ (1961) Sup Ct Rev 245;Google ScholarMill, JSOn Liberty (Penguin London 1985);Google Scholar and, generally, Schauer, FFree Speech—A Philosophical Enquiry (CUP Cambridge 1982).Google Scholar

28 Eg Scanlon, TM ‘A Theory of Freedom of Expression’ (1972) 1 Phil & Pub Aff 204;Google ScholarPost, R ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v Falwell’ (1990) 103 Harv L Rev 603;CrossRefGoogle Scholarand Raz, J ‘ Free Expression and Personal Identification’ in Raz, JEthics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press Oxford 1994).Google Scholar

29 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 126, per Lord Steyn. Kagan challenges speaker or audience-based justifications for content-based method (‘Governmental Motive’ (n 2) 444–50).Google Scholar

30 Sullivan, and Gunther, suggest that it is easier to mobilize political opposition to a more general law (which will by definition affect more people) than to a law directed at a particular subject-matterGoogle Scholar(Sullivan, KM and Gunther, GFirst Amendment Law (Foundation Press New York 1999) at 200).Google Scholar

31 See (n 15) and associated text.Google Scholar

32 Such as Grayned v Rockford 408 US 104 (1972).Google Scholar

33 Stone advances four justifications for the higher level of judicial scrutiny applied to viewpoint-based restrictions: equality, communicative impact, distortion of public debate and suspicion of the motives for regulation (Stone, GR ‘Content Regulation and the First Amendment’ (n 2), and ‘Content Neutral Restrictions’ (1987) 54 U Chi L Rev 46).CrossRefGoogle Scholar The doctrine has other powerful supporters: Ely ‘Flag Desecration’ (n 19) and Tribe, LHAmerican Constitutional Law (2nd ednFoundation Press Mineola, New York 1988) ch 12.Google ScholarSee also Stephen, PB ‘The First Amendment and Content Discrimination’ (1982) 68 Virginia L Rev 203Google Scholarand Stone, GR ‘Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions’ (1978) 46 U Chi L Rev 81.CrossRefGoogle Scholar

34 ‘On my view, the absence of seditious libel as a crime is the true pragmatic test of freedom of speech’ (Kalven, HThe Negro and the First Amendment (Ohio State University Press Columbus 1965) 16).Google Scholar

35 385 US 589 (1967).Google Scholar

36 ibid 603.

37 Kingsley International Pictures Corporation v Regents 360 US 684 (1959) (unconstitutional refusal to license the showing of the film of ‘Lady Chatterley's Lover’ under a statute banning films which portrayed ‘sexual immorality’ as desirable).Google Scholar

38 ‘[T]he prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate…. It is precisely this element of taking sides in a public debate that identifies viewpoint discrimination and makes it the most pernicious of all distinctions based on content’ (Rosenberger v Rector and Visitors of University of Virginia (n 9) per Souter, J (dissenting)).Google ScholarBrownstein, AE ‘Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests’ (1996) 29 UC Davis L Rev 553, 591.Google Scholar

39 Eg Police Department of Chicago v Mosley 408 US 92 (1972) and Carey v Brown 447 US 455 (1980).Google ScholarSee Karst, KL ‘Equality as a Central Principle in the First Amendment’ (1975) 43 U Chi L Rev 20CrossRefGoogle Scholarand Gale, ME ‘Reimagining the First Amendment: Racist Speech and Equal Liberty’ (1991) 65 St John's L Rev 119.Google Scholar

40 See (n 16) 24.Google Scholar

41 In Texas v Johnson (n 20), Kennedy J. stated in concurrence: ‘The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result’ (420–1). Bollinger has argued that certain of the judges who decided the Skokie controversy (permitting pro-Nazis to march in a predominantly Jewish area—Collin v Smith 578 F 2d 1197 (1978, 7th Cir)) were unhappy with the result that First Amendment doctrine compelled them to reach (Bollinger, LThe Tolerant Society: Freedom of Speech and Extremist Speech in America (OUP Oxford 1986)). Some applications of the principle of viewpoint-neutrality have proved extremely controversial. For the reaction to the Court's flag-burning cases, including a proposed constitutional amendment to permit the criminalization of flag-burning,Google Scholarsee Stone, GR ‘Flag Burning and the Constitution’ (1989) 75 Iowa L Rev 111Google Scholarand Michelman, F ‘Saving Old Glory: On Constitutional Iconography’ (1990) 42 Stan L Rev 1337.CrossRefGoogle Scholar

42 O'Connor, J has defended content-based method in part because ‘[I]t is a rule, in an area where fairly precise rules are better than more discretionary and more subjective balancing’ (Ladue v Gilleo 512 US 43, 60 (1994)).Google ScholarSee further Kretzmer, D ‘Freedom of Speech and Racism’ 8 Cardozo L Rev 445, 473 (1987)Google Scholarand Schauer, F ‘Categories and the First Amendment: A Play in Three Acts’ (1981) 34 Vanderbilt L Rev 265.Google Scholar

43 Note 7 above, and associated text.Google Scholar

44 Chaplinsky v New Hampshire 315 US 568, 571–2 (1942), per Murphy, J. It should be added that the Court has limited the scope of these exceptions: Roth v United States 354 US 476 (1957) and Miller v California 413 US 15 (1973) (on obscenity); Cohen (n 16) (on the profane); Sullivan (n 8) (on libel), and RAV v City of St Paul, Minnesota 505 US 377 (1992) (on fighting words). For a sceptical account of the usefulness of a categorical approach to free speech adjudication,Google Scholarsee Hare, I ‘Is the Privileged Position of Political Speech Justified?’ in Beatson, J and Cripps, YFreedom of Expression and Freedom of Information (OUP Oxford 2001).Google Scholar

45 Eg: ‘The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech’ Young v American Mini Theatres, Inc 427 US 50, 66 (1976), per Stevens, J.Google Scholar

46 See (n 8) and associated text.Google Scholar

47 Kennedy, J has referred to these ‘historic and traditional categories long familiar to the bar’(Simon & Schuster (n 14) 127).Google Scholar

48 The Act ‘punished false, scandalous and malicious writings against the government, either House of Congress, or the President, if published with intent to defame any of them, or to excite against them the hatred of the people, or to stir up sedition or to excite resistance to law’, see Chafee, ZFree Speech in the United States (Harvard University Press Cambridge MA 1941).CrossRefGoogle Scholar

49 Weinstein produces convincing evidence that those who framed and ratified the First Amendment would not have considered obscene speech to be outside of its protection (Weinstein, J ‘A Constitutional Roadmap to the Regulation of Campus Hate Speech’ (1991) 38 Wayne L Rev 163, 188).Google Scholar

50 See Sullivan: ‘Libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment’ (n 8) 269 and the cases (n 44).Google Scholar

51 458 US 747 (1982).Google Scholar

52 Although some examples of child pornography might also fulfil the legal definition of obscenity, the Court held that child pornography was proscribable even if it failed to satisfy three of the elements of the test of obscenity identified in Miller (n 44).Google Scholar

53 See (n 51) 763–1, per White, J. It should be conceded that Court has recently refused to extend the holding in Ferber to exclude from First Amendment protection any visual depiction which ‘appears to be […] of a minor engaging in sexually explicit conduct’ and therefore struck down the Child Pornography Prevention Act 1996 (Ashcroft v Free Speech Coalition 122 S Ct 1389 (2002) (emphasis added)). This decision is criticized in I Cram ‘Beyond Madision? The US Supreme Court and the Regulation of Sexually Explicit Expression’ [2002] PL 743.Google Scholar

54 512 US 753 (1994).Google Scholar

55 ibid 794–6, per Scalia J (dissenting, joined by Kennedy J and Thomas J).

56 Eg Jersild v Denmark (1994) 19 EHRR 1 and Lingens v Austria (1986) 8 EHRR 407.Google Scholar

57 Freedman, EM ‘A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Communications Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech and Bring Obscenity, Fighting Words, and Group Libel within the First Amendment’ (1996) 81 Iowa L Rev 883. In the UK context, see Hare ‘Political Expression’ (n 44)Google Scholarand Munro, CR ‘The Value of Commercial Speech’ [2003] 62 CLJ 134.CrossRefGoogle Scholar

58 There has been some explicit judicial acknowledgement of this: ‘Deciding whether a particular regulation is content based or content neutral is not always a simple task’ (Turner Broadcasting (n 14) 642–3 (quoted by Stevens J in Bartnicki v Vopper 532 US 514, 526 (2001)). See Redish, MH ‘The Content Distinction in First Amendment Analysis’ (1981) 34 Stan L Rev 113.CrossRefGoogle Scholar

59 Ward v Rock Against Racism (quoting Clark v Community for Creative Non-Violence) (n 15).Google Scholar

60 408 US 92 (1972).Google Scholar

61 Turner Broadcasting System, Inc v FCC (n 14).Google Scholar

62 ibid 645, per Kennedy J.

63 ibid 677, per O'Connor J.

64 Baker, C Edwin ‘Turner Broadcasting: Content-Based Regulation of Persons and Presses’ (1994) Sup Ct Rev 57.Google Scholar

65 See (n 15) 314–15 (1984), (in dissent). The case concerned the application of a Park Service regulation prohibiting sleeping in public parks to a demonstration about the plight of the homeless in Lafayette Park and the Mall in Washington DC.Google Scholar

66 See (n 15).Google Scholar

67 319 US 141,146 (1943). See also March v Alabama 326 US 501 (1946). Cf Clark (n 15). It is noticeable that these case pre-date the development of content-based method.Google ScholarSee Barendt, E ‘Freedom of Assembly’ in Beatson, and Cripps, (eds) Freedom of Expression (n 44).CrossRefGoogle Scholar

68 ‘The response of the Court may be described, without exaggeration, as schizophrenic’ (Tribe, LHConstitutional Choices (Harvard University Press Cambridge, MA 1985) 195.Google Scholar

69 466 US 789 (1984). See further, the dissent of Marshall, J in United States Postal Service v Greenburgh Civic Associations 453 US 114 (1981).Google Scholar

70 ‘Viewpoint discrimination is so clearly the cardinal First Amendment sin that legislatures now will take pains not to be caught at it’ (Sullivan, KM ‘Discrimination, Distribution and Free Speech’ (1995) 37 Ariz L Rev 439, 446).Google Scholar

71 ‘[T]he Court has shown little inclination to assess content neutrality in terms of the discriminatory “effects” of a regulation’ (Post, R ‘Recuperating the First Amendment’ (1995) 47 Stan L Rev 1249, 1268).CrossRefGoogle Scholar

72 391 US 367 (1968).Google Scholar

73 The amendment was passed in 1965 at a time when the destruction of draft cards to indicate opposition to the Vietnam War was growing and supplemented a previous law which already outlawed non-possession of the card. If this was already an offence, it is difficult to see what purpose (beyond criminalizing the symbolic act of destruction) was served by the amendment.Google Scholar

74 The Bill passed both Houses and was signed by the President within a month and the only statements from Committee or House considerations refer to the ‘contumacious’ or ‘unpatriotic’ conduct of those who were protesting against the conflict.Google Scholar

75 The Court used a number of expressions to describe the governmental interests involved which demonstrated that the existence of the draft card was facilitative, rather than indispensable, to the operation of the system (n 72) 378–80, per Warren, CJ.Google ScholarSee Velvel, LR ‘Freedom of Speech and Draft Card Burning Cases’ (1968) U Kan L Rev 149, 163–6.Google Scholar

76 Alfange, D ‘Free Speech and Symbolic Conduct: The Draft-Card Burning Case’ (1968) Sup Ct Rev 1. The Court refused to inquire into the legislative motivation for the law (n 76) 383–4 per Warren CJ.Google Scholar

77 See Kagen, ‘Governmental Motive’ (n 2);Google ScholarMichelman, F ‘Exchange, Property and the Politics of Distrust: Liberties, Fair Values, and Constitutional Method’ (1992) 59 U Chi L Rev 91;CrossRefGoogle ScholarDorf, MC ‘Incidental Burdens of Fundamental Rights’ (1996) 109 Harv LR 1176;CrossRefGoogle Scholarand Williams, SH ‘Content Discrimination and the First Amendment’ (1991) 139 Pa L Rev 615.CrossRefGoogle Scholar

78 530 US 703 (2000). See Weinstein, J ‘Free Speech, Abortion Access, and the Problem of Judicial Viewpoint Discrimination’ (1996) 29 UC Davis L Rev 471Google Scholarand Raskin, JB and LeBlanc, CL ‘Disfavored Speech about Favored Rights: Hill v Colorado, The Vanishing Public Forum and the Need for an Objective Speech Discrimination Test’ (2001) 51 Am U L R 179.Google Scholar

79 See (n 78) 723, per Stevens, J.Google Scholar

80 ‘[T]he prohibition here is content based: those who wish to speak for purposes other than protest, counsel, or education may do so at close range without the listener's consent, while those who wish to speak for other purposes may not’ ibid 746, per Scalia J (dissenting, joined by Thomas J).

81 See (n 78) 721, per Stevens, J.Google Scholar

82 Kennedy, J described it as ‘one of the most basic moral and political issues in all of contemporary discourse, a question touching profound ideas in philosophy and theology’ (n 79) 768.Google Scholar

83 The dispute is similar to that between Kennedy, J and Brennan, J in Kokinda v United States 497 US 720,739, 753 (1990) in which the Court upheld a prohibition on soliciting contributions by the entrance to a post office.Google Scholar

84 Weinstein, notes that between 1977 and 1993 there were more than 1,000 acts of violence against abortion service providers, including 36 bombings, 84 assaults, 131 death threats, 81 cases of arson, two kidnappings, 327 clinic invasions and one murder ‘Free Speech’ (n 78).Google Scholar

85 Even the majority accepted that the legislative history made it clear that the enactment was primarily motivated by activities in the vicinity of abortion clinics. See (n 78) 715, per Stevens, J.Kennedy, J, makes a similar point in dissent at 767.Google Scholar

86 Eg Justices Scalia, and Thomas, have made clear their opposition to the Supreme Court's famous abortion ruling in Roe v Wade 410 US 113 (1973).Google Scholar

87 487 US 474 (1988). The ordinance made it ‘unlawful for any person to engage in picketing before or about the residence or dwelling of any individual’.Google Scholar

88 ‘Restrictions based on the “status” of a speaker, although often upheld, bear a troublesome correlation with viewpoint’ (Tribe American Constitutional Law (n 33) 803). See Williams, SH ‘Content Discrimination and the First Amendment’ (n 77).Google Scholar

89 See (n 10).Google Scholar

90 Contrast Perry with Madison v Wisconsin Employment Relations Commission 429 US 167 (1976). Like any other, this argument can be overstated: eg the discussion of Arkansas Educational Television Commission v Forbes, 523 US 666 (1998) by Chemerinsky, E ‘Content Neutrality as a Central Problem of Free Speech: Problems in the Supreme Court's Application’ (2000) 74 S Cal L Rev 49, 56.Google Scholar

91 340 US 268 (1951), followed in Fowler v Rhode Island 345 US 67 (1953).Google Scholar

92 ibid 272.

93 ‘In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue’ First National Bank of Boston v Bellotti 435 US 765, 784–6, per Powell, J (1978) (emphasis added). See further Cornelius v NAACP Legal Defense and Educational Fund 473 US 788 (1985).Google Scholar

94 Tribe American Constitutional Law (n 33) 820.Google Scholar

95 See (n 8). The earlier decision in Paris Adult Theatre I v Slaton 413 US 49 (1973) was clearly relevant, but concerned speech identified as obscene and therefore failing outside of First Amendment protection.Google Scholar

96 An adult film theatre was defined as one used to present ‘material distinguished or characterised by an emphasis on matter depicting…“Specified Sexual Activities” or ’Specified Anatomical Areas”.’ The other regulated uses included adult book shopshops, cabarets, bars, taxi dance halls, and hotels.Google Scholar

97 475 US 41 (1986). In Renton the ordinance applied only to adult film theatres and simply prohibited them to encroach within 1,000 feet of any family dwelling, church, park, or school.Google Scholar

98 ibid 47, per Rehnquist J. Tribe has described the consideration of the secondary effects of speech as ‘an ill-advised dimension’ to free speech analysis (American Constitutional Law (n 33) 798 n 17).

99 ‘Renton's zoning ordinance selectively imposes limitations on the location of a movie theater based exclusively on the content of the films shown there’ Renton (n 97) 55, per Brennan J (dissenting, joined by Marshall J). The dissents also questioned whether the ordinances were really viewpoint-neutral since the films shown were almost certain to favour more, rather than less, relaxed sexual mores (ibid 56 n 1, citing Stone (n 2)).

100 Renton (n 97) 49, per Rehnquist, CJ.Google Scholar

101 See (n 9). On the merits, this argument was rejected on the basis that the impact of speech on its intended audience could not be regarded as the kind of secondary effect referred to in Renton.Google Scholar

102 Boos (n 9) 335.Google Scholar

103 529 US 277 (2000). See Rumney, P ‘City of Erie at al v Pap's AM, tdba “Kandyland”: Low-Value Speech and the First Amendment’ [2001] PL 158 and Cram ‘Beyond Madison?’ (n 53).Google Scholar

104 Scalia, J (in a concurring opinion joined by Thomas, J) appeared to accept this: ‘I am highly skeptical, to tell the truth, that the addition of pasties and G-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease’ (n 103) 310.Google Scholar

105 See (n 13).Google Scholar

106 Lamb's Chapel v Center Moriches Union Free School District 508 US 384 (1993).Google Scholar

107 See Rosenberger v Rector and Visitors of University of Virginia (n 9) and Good News Club v Milford Central School 533 US 98 (2001).Google Scholar

108 524 US 569 (1998).Google Scholar

109 ibid 583, per O'Connor J.

110 The three justices in the minority defined the amendment as ‘unquestionably’ (Scalia, J) and ‘quintessentially’ (Souter, J, dissenting) viewpoint-based.Google Scholar

111 This was the basis of the concurrence by Scalia, J (joined by Thomas, J). As we have seen, he accepted that the provision was unquestionably viewpoint-based, but held that this did not offend the First Amendment in line with Rust v Sullivan (n 5).Google Scholar

112 See (n 20).Google Scholar

113 ibid 429, per Rehnquist CJ (dissent, joined by White J and O'Connor J). Stevens J also filed a dissenting opinion on the basis that he did not regard the statute as viewpoint-based.

114 The minority's hostility to Johnson's form of expression is evident from the following statement. ‘Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning’ per Rehnquist, CJ 435.Google Scholar

115 See (n 44).Google Scholar

116 The State Supreme Court had confined the statute to ‘fighting words’. However, the majority held that the provision was impermissibly content-based since it singled out only certain kinds of fighting words. The minority held it to be unconstitutionally overbroad since it criminalized expressive conduct which induced only hurt feelings, offence, or resentment.Google Scholar

117 See (n 44).Google Scholar

118 ibid 435. A point supported by Greenawalt ‘Although the ordinance could sometimes result in viewpoint discrimination, that is far from its main thrust’ (Greenawalt, KFighting Words-Individuals, Communities, and Liberties of Speech (Princeton University Press Princeton 1995) 57).Google Scholar

119 Rehnquist, CJ was a member of the minorities in Johnson and Eichman and yet joined the opinion of Scalia, J in RAV. There is, of course, an argument based on ‘the uniquely universal character of the national flag’ (Washington v Spence 418 US 405, 414 (1974)).Google Scholar

120 See (n 44) and associated text.Google Scholar

121 At 388.Google Scholar

122 See (n 1). For an analysis of the case, see Hare, I ‘Inflammatory speech: cross-burning and the first amendment’ [2003] PL 408.Google Scholar

123 Black, Elliott and O'Mara v Commonwealth of Virginia 553 SE 2d 738 (2001).Google Scholar

124 The majority consisted of Rehnquist, CJ, Stevens, , O'Connor, , Scalia, , and Breyer, JJ.Google Scholar

125 ‘[w]hen a cross burning is used to intimidate, few if any messages are more powerful’ (n 1) 1547.Google Scholar

126 Donald, WLemons, J for the majority in the Virginia Supreme Court in Black (n 123) 741.Google Scholar

127 ‘In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan’ (Capitol Square Review and Advisory Board v Pinette 515 US 753, 770–1 (1995), per Thomas, J concurring).Google Scholar

128 Hare, ‘Inflammatory speech’ ( n 122) 413.Google Scholar

129 Hare, ‘English Lessons in Comparative Public Law: Will the First Amendment have the Last Word?’ (2000) 10 Trinity Law Review 29.Google Scholar

130 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 citing New York Times v Sullivan (n 8) and City of Chicago v Tribune Co 139 NE 87 (1923).Google Scholar

131 Eg, the ‘actual malice’ rule for defamation claims by public officials and figures was roundly rejected by the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.Google Scholar For criticism of the rule in Sullivan, see, eg, Kentridge, S ‘Freedom of Speech: Is it the Primary Right?’ (1996) 45 ICLQ 253.CrossRefGoogle Scholar

132 Eg, Feldman, D ‘Content Neutrality’ in Loveland, I (ed) Importing the First Amendment—Freedom of Speech and Expression in Britain, Europe and the USA (Hart Publishing Oxford 1999).Google Scholar

133 Eg, Barendt, E ‘The First Amendment and the Media’ and Sedley, S ‘The First Amendment: A Case for Import Controls?’ in Loveland Importing the First Amendment (n 132).Google Scholar

134 Some commentators in other parts of the common law world have advocated the wholesale adoption of content-based method: Harris, B ‘Viewpoint Neutrality and Freedom of Expression in New Zealand’ (1996) 8 Otago L Rev 515.Google Scholar

135 Exceptions or defences to free speech regulation may also be based on the content of the expression, such as s 4(1) of the Obscene Publications Act 1959, s 5 of the Contempt of Court Act 1981, and s 3 of the Data Protection Act 1998. See also s 12(4) of the Human Rights Act 1998.Google Scholar

136 S 321 of the Communications Act 2003. The apparent incompatibility arises from a decision of the Strasbourg Court that the Swiss national broadcasting ban on political advertising breached the applicant's Art 10 rights (Vgt Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 4). See the Joint Committee on Human Rights, Nineteenth Report (2002) HC 1102, paras 18–24; First Report of 2002–3, HC 191, paras 11–16; and Fourth Report of 2002–3, HC 397, paras 38–42.Google Scholar

137 The Public Order Act 1986, s 18, prohibits the use of threatening, abusive, or insulting words or behaviour with intent to stir up racial hatred or where racial hatred is likely to be stirred up thereby. See Sadurski, W ‘On “Seeing Speech Through an Equality Lens”’ [1997] 16 OJLS 713CrossRefGoogle Scholarand Coliver, S (ed) Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination (Article 19 London 1992).Google Scholar

138 House of Lords Select Committee on Religious Offences, First Report, 2003, para 137.Google Scholar

139 S 2A of the Local Government Act 1986 (inserted by s 28 of the Local Government Act 1988) repealed by s 122 of the Local Government Act 2003.Google Scholar

140 Education (No 2) Act 1986, s 43. See Barendt, E ‘Free Speech in the Universities’ [1987[ PL 344 and R v University of Liverpool, exparte Caesar-Gordon [1990] 3 All ER 821.Google Scholar

141 ProLife Alliance (n 1). See also the Divisional Court's decision in Percy v Director of Public Prosecutions [2001 EWHC Admin 1125 in which the defendant's convictions under s 5 of the Public Order Act 1986 for defacing the US flag were held to be incompatible with her Convention rights.Google Scholar

142 See Hare, I ‘Debating Abortion—The Right to Offend Gratuitously’ [2003] 62 CLJ 525CrossRefGoogle Scholarand Barendt, E ‘Free Speech and Abortion’ [2003] PL 580.Google Scholar

143 See (n 1) para 8, per Nicholls, Lord and para 58, per Lord Hoffmann.Google Scholar

144 [2001] 1 WLR 1040. To similar effect, see Fernando v Sri Lanka Broadcasting Corporation (1996) 1 BHRC 104.Google Scholar

145 ibid paras 26 and 27, per Lord Slynn of Hadley.

146 ibid paras 49 and 50, per Lord Slynn of Hadley.

147 Haider v Austria (1995) 83 DR 66,74, quoting X and the Association of Z v United Kingdom(1971) 38 CD 86.Google Scholar

148 Haider, above, and Huggett v United Kingdom (1995) 82A DR 98.Google Scholar

149 ProLife Alliance (n 1) para 63. Lord Nicholls stated: ‘A restriction on the content of a programme, produced by a political party to promote its stated aims, must be justified’ ibid, para 8.

150 Certain decisions of the Australian High Court are also motivated by concerns about content-based distinctions. Eg Australian Capital Television Pty Ltd v The Commonwealth [1992[ 177 CLR 106, 143–6, per Mason, CJ.Google Scholar

151 Laws, LJ has argued in favour of the development of autonomous domestic principles of rights protection rather than strict adherence to Strasbourg doctrine (eg ProLife Alliance [2002] 2 All ER 756 paras 33–6 and Runa Begum v Tower Hamlets London Borough Council [2002” 1 WLR 1249 para 17).Google Scholar

152 Barendt, E ‘The First Amendment and the Media’ in Loveland Importing the First Amendment (n 132) above at 48. Singh also accepts that viewpoint discrimination ‘should be the most difficult, if not impossible, to justify’, but he exempts speech ‘used as a verbal weapon to attack vulnerable minorities’Google Scholar(Singh, RThe Future of Human Rights in the United Kingdom: Essays on Law and Practice (Hart Publishing Oxford 1997) 73).Google Scholar

153 ibid 43.

154 McCrudden, C ‘Freedom of Speech and Racial Equality’ in Birks, P (ed) Pressing Problems in the Law Volume 1: Criminal Law and Human Rights (OUP Oxford 1995).Google Scholar

155 The decisions of the European Commission and Court of Human Rights in Glimmerveen and Hagenbach v Netherlands, Appn nos 8348/78 and 4806/78, 18 D & R 187 (1979) and Kosiek v Germany (1986) 9 EHRR 434 (see now Jersild v Denmark (n 56) and the Canadian Supreme Court's decision in R v Keegstra [1990] 3 SCR 697.Google Scholar

156 See(n 154) 141.Google Scholar

157 Feldman, D ‘Content Neutrality’ in Loveland, Importing the First Amendment (n 132).Google Scholar

158 ibid 139 and 146.

159 See (n 18) and associated text.Google Scholar

160 See (n 132) 141–6.Google Scholar

161 See, eg, Davies, NThe Isles: A History (Macmillan London 1999);Google ScholarKearney, HThe British Isles: A History of Four Nations (CUP Cambridge 1999)Google Scholarand Colls, RIdentity of England (OUP Oxford 2002).CrossRefGoogle Scholar

162 Tribe, American Constitutional Law (n 33) ch 18.Google Scholar

163 From this perspective, the fact that some judges may be unhappy with the outcomes which the rigours of content-based method require them to reach, may be regarded as an advantage and a demonstration of the power of the doctrine. Feldman cites Bollinger for the proposition, referred to above, that certain of the judges who decided the Skokie controversy were unhappy with the result (see n 41).Google Scholar

164 Eg the oft-cited judgments of Holmes, J in Abrams v US 250 US 616 (1919) and of Brandeis, J in Whitney v California 274 US 357 (1927).Google Scholar

165 Buckley v Valeo 424 US 1 (1976) and First National Bank of Boston v Bellotti (n 99), criticized in Ingber ‘The Marketplace of Ideas: A Legitimizing Myth“ (1984) LJ Duke 1Google Scholarand Sunstein, CRDemocracy and the Problem of Free Speech (Free Press New York 1993). See now the Court's recent decision in McConnell v Federal Election Commission 540 US_(2003).Google Scholar

166 Feldman, repeatedly refers to the marketplace of ideas in his account: eg 140,142,147,148,150, 155, and 169.Google Scholar

167 One passage suggests that Feldman is aware of this: ‘[R]eal contextual flexibility may make it impossible to formulate rules for the constitutionality of interferences with speech’ (n 157) 154. Weinstein, ‘Free Speech’ (n 78) 473. Some English judges have also warned of the dangers of discretionary balancing in free speech disputes (R v Central Independent Television Plc [1994] Fam 192, 202, per Hoffmann LJ).Google Scholar

168 Most US free speech doctrine dates from the last three-quarters of the twentieth century. For earlier developments, see Rabban, DMFree Speech in its Forgotten Years (CUP Cambridge 1997).Google Scholar

169 Weinstein, ‘An American's View of the Canadian Hate Speech Decisions’ in Waluchow, WJ (ed) Free Expression: Essays in Law and Philosophy (Clarendon Press Oxford 1994).Google Scholar

170 ‘[w]nere messages are proscribed because they are dangerous, balancing tests inevitably become intertwined with the ideological predispositions of those doing the balancing—or if not that, at least with the relative confidence or paranoia of the age in which they are doing it…’ (Ely ‘Flag Desecration’ (n 19) 1501).Google Scholar

171 This includes the otherwise unsatisfactory decision in Verein Vgt (n 136). Although the ban on political advertising was facially viewpoint-neutral, its effect was to prevent those who opposed the consumption of intensively reared meat from expressing their views while permitting those in the meat industry to promote their products through commercial advertising.Google Scholar

172 Simon Brown, LJ gave examples in which these same broadcasters had defended before regulatory bodies their decisions to broadcast graphic depictions of the victims of terrorist bombings or of animals being killed for sport (n 151) para 61).Google Scholar

173 R (Farrakhan) v Secretary of State for the Home Department [2002] QB 1391.Google Scholar