Chapter I


Last updated : 22/01/01

A.        INTRODUCTION, I-2

B.        RATIONALES AND PURPOSES, I-2

            The marketplace of ideas: Abrams v. United States, I-3
            Democratic government: The Alberta Press Case, I-5
            Self-realization, I-7

C.        FREEDOM OF THE PRESS, I-9

D.        CHARTER INTERPRETATION AND SECTION 2(b), I-12
            The role of tradition I-12
            An introduction to the First Amendment I-12

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A.        INTRODUCTION

Freedom of expression and the press were valued prior to the Charter's enactment in 1982, - as part of our legal culture, but even more as a fundamental assumption of a political tradition that was committed to principles of responsible government, accountability and democratic debate. Though acknowledged in some division of powers cases, Canada's commitment to expressive freedom was otherwise not well documented in the constitutional jurisprudence.

While placing some emphasis on self-government and its importance to parliamentary democracy, the Supreme Court of Canada essentially endorsed the three primary rationales which support expressive freedom in the United States: the "marketplace" of ideas; democratic government; and self-realization. See RWDSU v. Dolphin Delivery, [1986] 1 S.C.R. 573; Ford v. A-G Quebec, [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. A-G Quebec, [1989] 1 S.C.R. 927].

By singling it out for protection, the text of the First Amendment and s.2(b) of the Charter confer preferred status on expressive activity. Each of the jurisprudential rationales which support that status presupposes that expressive activity serves a distinctive purpose which advances those values and therefore is entitled to constitutional protection.

It is questionable, however, whether and to what extent that assumption holds true. Why should we assume that expressive activity is intrinsically valuable? It is well known, for example, that expressed views can be offensive, odious or harmful. Why should "the speech we hate", as Justice Oliver Wendell Holmes once described it, be protected by the Constitution? What happens when offensive expression is protected: does it undermine the constitutional guarantee, rendering its interpretation abstract and acontextual, or does it protect unconventional and unpopular views from being censored?

It is also questionable whether conduct - as compared with expression - is intrinsically less valuable. Why does expressive activity receive a degree of constitutional protection that is not extended equally to conduct? Gestures and other forms of symbolic activity may be as communicative or as expressive as the spoken or written word. Should the courts extend the same protection to conduct as expression? In what circumstances and on what basis?

The underlying values which have been accepted in the Canadian and American jurisprudence are set out below. Do those values answer the difficult questions raised above? What role should they play in the analysis, and to what extent do you think they should influence the results? Specifically, in terms of the Charter's structure, at what stage should they be considered - initially, in determining the question of breach under s.2(b), subsequently, in assessing the justifiability of the limitation under s.1, or at both stages? This question is considered in more detail in Chapter II, which examines the evolution of the Supreme Court of Canada's methodology of expressive freedom.

Like freedom of expression, freedom of the press played an important role in our political tradition prior to the Charter. Though the Supreme Court of Canada was initially reluctant to treat the press differently under s.2(b), its decisions in Dagenais v. CBC, (1995) 94 D.L.R. (4th) 289 [dealing with publication bans] and CBC v. New Brunswick [re: Carson], [1996] 3 S.C.R. 480 [dealing with access to a sentencing hearing] reveal a greater recognition on the Court's part of the link between a free press and democratic government. Set out below are brief excerpts which introduce and discuss the role of the press.

B. RATIONALES AND PURPOSES

In its first decision interpreting the scope of s. 2(b), the Supreme Court of Canada discussed the guarantee's underlying values. RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, emphasized marketplace and self-government rationales in concluding that picketing is protected by s. 2(b). Subsequently, in Ford v. A-G Quebec, [1988] 2 S.C.R. 712, and Irwin Toy v. A-G Quebec, [1989] 1 S.C.R. 927, the Court endorsed "individual self-fulfillment and human flourishing" as additional values protected by s. 2(b).

Do you agree with the Court's decision to endorse all three rationales in defining the scope of s. 2(b)? Should any of those values have been excluded? Can you think of any activity that would be excluded from such a broad and inclusive view of expressive freedom's value? Can these values be used to limit the scope of s.2(b); is it their function instead to secure a generous and liberal interpretation of the guarantee?

More generally, how should these underlying values influence the analysis in s. 2(b) cases? Should they simply be used to determine the existence of a prima facie breach? Are all three of equal importance? If not, how should a hierarchy of values be established, and what role should it play in the analysis? Can it be used to assign a relative value to different categories of expression, or to specific expressive activity? How should this analysis be integrated into the Oakes test under s.1?

In reading the excerpts below, consider what function each of the rationales should play in the Charter analysis.

The marketplace of ideas: Abrams v. United States

The notion that a constitutional guarantee of expressive freedom should protect a "marketplace", in which a variety of ideas, opinions and beliefs compete for acceptance, can be traced to Justice Holmes's dissenting opinion in Abrams v. United States, 251 U.S. 616 (1919). Although the concept has at times been criticized, and even dismissed, as a throwback to laissez-faire values, Abrams was about political expression and a conviction for subversive activities.

During World War I, when the U.S. was at war with Germany, the defendant distributed leaflets that urged workers to rise up, through general strikes, and show solidarity with Russian revolutionaries by undermining domestic war industries.

The decision in Abrams was preceded by three earlier cases in which Justice Holmes wrote majority opinions upholding convictions under anti-subversive legislation. The first, Schenck v. United States, 249 U.S. 47 (1919), introduced the clear and present danger doctrine, which for many years was the foundation of First Amendment doctrine; see introduction infra. Holmes did not champion the cause of expressive freedom until Abrams, which was decided later the same year. There, he invoked the marketplace rationale to support a speech-protective interpretation of Schenck's clear and present danger doctrine. The passages which follow are among the most famous in the First Amendment tradition. In protecting the defendant's right to be free from criminal prosecution for promoting subversive activities, Holmes wrote as follows:

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendant had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the colour of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow - a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, ... as is which, ... no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.... Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no [law] abridging the freedom of speech." Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the [Constitution].

Democratic government: The Alberta Press Case

The relationship between expressive freedom and democratic government is considered the primary, and most critical, value which underlies the First Amendment. The American jurisprudence, therefore, frequently speaks of political expression, and expressive activity related to the democratic process, as being at the "core" of the First Amendment.

... Under the constitution established by the [BNA Act], legislative power for Canada is vested in one Parliament.... [It] can be said that [the BNA Act's] provisions manifestly contemplate a House of Commons which is to be, as the name itself implies, a representative body; constituted, that is to say, by members elected by such of the population of the united provinces as may be qualified to vote. The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom. The statute contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives.

The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth [] "freedom governed by law."

Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.....

Mr. Justice Cannon echoed the Chief Justice's views but placed the emphasis on access to information and free debate as a fundamental aspect of citizenship.

... Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government. Freedom of discussion is essential to enlighten public opinion in a democratic State: it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest.... Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. ... Every inhabitant in Alberta is also a citizen of the Dominion. The province may deal with his property and civil rights of a local and private nature within the province; but the province cannot interfere with his status as a Canadian citizen and his fundamental right to express freely his untrammelled opinion about government policies and discuss matters of public concern. The mandatory and prohibitory provisions of the Press Bill ... have a tendency to nullify the political rights of the inhabitants of Alberta, as citizens of Canada.... The federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press in discussing public affairs and the equal rights in that respect of all citizens throughout the Dominion.... No province has the power to reduce in that province the political rights of its citizens as compared with those enjoyed by the citizens of other provinces of Canada. Moreover, citizens outside the province of Alberta have a vital interest in having full information and comment, favourable and unfavourable, regarding the policy of the Alberta government....

Self-realization

The American jurisprudence has also recognized that freedom of expression advances and promotes individual self-realization and self-fulfillment. To the extent that the other two rationales - the marketplace of ideas and self-government - protect the process of communication, the concept of self-realization protects a vision of expressive freedom as valuable in and of itself. Although this value has been articulated in different ways, by different commentators and jurists, Thomas Emerson provided the classic statement, in The System of Freedom of Expression, (U.S.A.: Random House, Inc., 1970), at 6:

[F]reedom of expression is essential as a means of assuring individual self-fulfillment. The proper end of man is the realization of his character and potentialities as a human being. For the achievement of this self-realization the mind must be free. Hence suppression of belief, opinion, or other expression is an affront to the dignity of man, a negation of man's essential nature. Moreover, man in his capacity as a member of society has a right to share in the common decisions that affect him. To cut off his search for truth, or his expression of it, is to elevate society and the state to a despotic command over him and to place him under the arbitrary control of others....

Notes and Questions

1. What assumptions does the marketplace theory rest on? Do any of them seem flawed? If the answer is yes, does that suggest that Holmes's theory is unsound? Should it be abandoned, refined, or otherwise taken at face value?

3. Given The Alberta Press Case, and the distinctive features of parliamentary government, is such an argument more viable in Canada? Note that in Re Klein and Law Society of Upper Canada (1985), 50 O.R. (2d) 118, the Ontario High Court held that s.2(b) protects expression related to parliamentary process, but not commercial expression. That interpretation of s.2(b) was rejected by the Supreme Court of Canada in Ford and Irwin Toy. Would it have been inappropriate to restrict the scope of s.2(b) to political expression? Why or why not?

4. Once the Court acknowledged these rationales under s.2(b), did they have any further role to play? Are s.2(b)'s underlying values relevant under s.1; if so, what role should they play in determining the justifiability of limits on expression? Note that the Court incorporated s.2(b)'s values into the s.1 analysis through the auspices of the "contextual approach", which is discussed in Chapter II, infra.

5. Are all the rationales equal in importance and value? What are the implications of an affirmative answer to that question? And if you conclude, to the contrary, that they are not, what would a hierarchy of s.2(b) values look like, and how could it be rationalized?

6. The proposition that expressive activity is self-fulfilling is trite. How does it advance or enrich our conception of expressive freedom? How can any activity be excluded from s.2(b) under this rationale: virtually all communication is self-fulfilling, at a minimum, to the communicator. Moreover, is it a contradiction in terms for the courts to determine what is or is not fulfilling for the speaker?

7. Is self-realization as important as the marketplace and self-government rationales? Should a lower standard of justification apply in cases where "self-realization" is the only function of the expressive activity?

C. FREEDOM OF THE PRESS

In more than fifteen Supreme Court of Canada decisions under s.2(b), the claim has succeeded in only a handful of cases. First Amendment doctrine, by contrast, is based on a clear understanding of the historical roots of the press clause, of its distinctive purpose, and of the distinctive institutional role it plays in re-inforcing the separation of powers. It may be helpful, in assessing the judiciary's response under the Charter, to have some understanding of the American conception of the press.

First, the press clause was "the product of revolutionary ferment". Freedom of the press, not freedom of speech, "was the primary concern of the generation that wrote the Declaration of Independence, the Constitution, and the Bill of Rights." Whereas "[f]reedom of speech was a late addition to the pantheon of rights [,] freedom of the press occupied a central position from the very beginning." D. Anderson, "The Origins of the Press Clause", 30 U.C.L.A. Law Rev. 455, at 533-34 (1983). What are the origins of the press in Canada, and have the courts attributed any importance to its historical roots?

Second, as Anderson argues, "the press clause had its own origins, separate and distinct from the other first amendment rights", id. Potter Stewart, who was then a U.S. Supreme Court Justice, wrote an influential article, "Or of the Press", 26 Hast. L.J. 631 (1975), which explained the point in the following terms:

It is tempting to suggest that freedom of the press means only that newspaper publishers are guaranteed freedom of expression. They are guaranteed that freedom, to be sure.... If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy. Between 1776 and the drafting of our Constitution [1787], many of the state constitutions contained clauses protecting freedom of the press while at the same time recognizing no general freedom of speech. By including both guarantees in the First Amendment, the Founders quite clearly recognized the distinction between the two.

To what extent does the Canadian judiciary collapse the Charter's protection of the media into the concept of "freedom of expression"?

Third, the First Amendment tradition acknowledges the distinctive institutional function that is served by a free press. According to Justice Stewart, id., the press guarantee is "in essence, a structural provision of the Constitution". He explained that view, as follows:

Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals: freedom of speech, freedom of worship, the right to counsel [etc.] In contrast, the Free Press clause extends protection to an institution....

It is also a mistake to suppose that the only purpose of [a press guarantee] is to insure that a newspaper will serve as a neutral forum for debate, a "market place of ideas".... A related theory sees the press as a neutral conduit of information between the people and their elected leaders. These theories, in my view again give insufficient weight to the institutional autonomy of the press that it was the purpose of the Constitution to guarantee....

In setting up the three branches of the Federal Government, the Founders deliberately created an internally competitive system.... The primary purpose of [the Press Clause] was a similar one: to create a fourth institution outside the Government as an additional check on the three official branches....

For centuries before our Revolution, the press in England had been licensed, censored, and bedeviled by prosecutions for seditious libel. The British Crown knew that a free press was not just a neutral vehicle for the balanced discussion of diverse ideas. Instead, the free press meant organized, expert scrutiny of government. The press was a conspiracy of the intellect, with the courage of numbers. This formidable check on official power was what the British Crown had feared and what the American Founders decided to risk.

What functions does the press serve in Canada's political tradition? Have the courts adequately identified those functions? Have those functions been adequately protected?

Should press claims be viewed as a demand for "special privileges"? Should the media be treated as the same, or as different, under s.2(b)? Can its claims for protection be analogized to those of the ordinary citizen? In what ways might those claims be considered different, and how should such differences be recognized and dealt with in the doctrinal analysis?

Note how the Canadian courts conceptualized freedom of the press in some of the early cases. Though not a press case, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 followed all the lower court jurisprudence in holding that the Charter does not alter the common law of defamation. In MacLeod v. Canada, (1991) 38 F.T.R. 129, in which members of the press challenged army interference with press activities during the Oka standoff, Joyal J. stated that "[f]reedom of the press as a concept does not confer any special status on media people." A more elaborate statement can be found in National Bank of Canada v. Melnitzer, (1991) 84 D.L.R. (4th) 315 at 321, a case which arose from a request for press access to bankruptcy proceedings involving lawyer Julius Melnitzer. There, Killeen J. stated as follows:

It is to be noted that freedom of the press is set out in s.2(b) as an included fundamental freedom under the broader rubric of "freedom of thought, belief, opinion and expression. This included position of the free press principle must have been deliberate ... and can hardly mean that freedom of the press was meant to be broader than the freedom or freedoms of which it was stated to be part. I say this not to denigrate the vital principle of a free press but simply to say that it is not a limitless freedom which gives the press or other media a preferred position in our constitutional scheme of things. Freedom of the press is not the equivalent of a Freedom of Information Act nor does it have the effect of appointing the press as a sort of permanent and roving Royal Commission entitled at its own demand and in every circumstance to any and all information or documentation which might be extant in civil or criminal litigation.

Although the Supreme Court of Canada invoked the rhetoric of a free press in striking legislation in Edmonton Journal v. A-G Alberta, [1989] 2 S.C.R. 1326, it has shown resistance to an interpretation of s.2(b) that would recognize that the press serves a distinctive function. In CBC v. Lessard, [1991] 3 S.C.R. 421, for example, involving search warrants which were used to seize videotape evidence, L'Heureux-Dubé stated as follows in her concurring opinion:

Notwithstanding its importance, the constitutional protection of the freedom of the press does not go as far as guaranteeing the press special privileges which ordinary citizens ... would not enjoy. The law does not make such a distinction and the Charter does not warrant it.

McLachlin J. dissented alone in Lessard. In doing so, she held that by specifically referring to freedom of the press, s.2(b) affirms the "special position of the press and other media in our society." She added that "[t]he history of freedom of the press in Canada belies the notion the press can be treated like other citizens or legal entities when its activities come into conflict with the state." Long before the Charter, the courts had recognized the "special place of the press in a free and democratic society."

It should be noted that all members of the Court joined Mr. Justice La Forest's opinion in CBC v. New Brunswick [re: Carson], [1996] 3 S.C.R. 480 at 496-8. There, he made the following comments about freedom of the press under s.2(b):

That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'être of the s.2(b) guarantee. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public's entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered. The significance of the freedom and its attendant responsibility lead me to the second issue relating to s.2(b).

Essential to the freedom of the press to provide information to the public is the ability of the press to have access to this information. In Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, I noted that freedom of the press not only encompassed the right to transmit news and other information, but also the right to gather this information. At pp. 429-30, I stated:

There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. This was the manner in which the right was originally expressed, in the first draft of s.2(b) of the Canadian Charter of Rights and Freedoms before its expansion to its present form. However, the freedom to disseminate information would be of little value if the freedom under s.2(b) did not also encompass the right to gather news and other information without undue governmental interference. [Emphasis added.]

It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts. To this end, Cory J. stated in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p.475:

The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.

From the foregoing, it is evident that s.2(b) protects the freedom of the press to comment on the courts as an essential aspect of our democratic society. It thereby guarantees the further freedom of members of hte public to develop and to put forward informed opinions about hte courts. As a vehicle through which information pertaining to these courts is transmitted, the press must be guaranteed access to the courts in order to gather information. As noted by Lamer J., as he then was, in Canadian Newspaper Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p.129: "Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measurers which prohibit the media from publishing information deemed of interest obviously restrict that freedom." Similarly, it may be said that measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts.

D. CHARTER INTERPRETATION AND SECTION 2(b)

The role of tradition

Although expressive freedom was not protected by the Constitution until 1982, it was a familiar concept in Canada's legal tradition. As noted above, it figured prominently in a few division of powers cases. In addition, common law doctrine often balanced expressive freedom against other values: the doctrine of publication bans and law of defamation provide two good examples. Although the Charter was intended to create a break with tradition, it is also clear, at the same time, that the Charter's guarantees were based on traditional constitutional and common law values. In such circumstances, what assumptions, if any, should the Court make in interpreting s.2(b): that the guarantee altered the traditional balance between expressive freedom and other values; or, that the common law [or other branches of the law] was compatible with the Charter? What criteria should the Court use to determine whether that balance should change, or remain the same?

How has the lack of a jurisprudence on rights affected our Court's assessment of American doctrine? Have the courts relied too heavily on U.S. cases to compensate for the gap in Canada's constitutional tradition? Are they critical enough, and are significant cultural and ideological differences identified and discussed? To what extent can First Amendment experience be transplanted into the Charter's distinctive framework, and which of the First Amendment's ideological assumptions, if any, are applicable here? This Chapter concludes with an introduction to the First Amendment which has been adapted from an article by J. Cameron, "The First Amendment and Section 1 of the Charter", in 1 Media and Communications Law Rev. 59 (1990).

An Introduction to the First Amendment

Introduction

The First Amendment states, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press...." Two points should immediately be noted: 1., that the guarantee is stated in absolute terms, and 2., that it is framed, in negative terms, as a prohibition that applies exclusively against Congress [and not the state governments]. Also, as numerous Charter decisions emphasize, the First Amendment's "absolute" guarantee is not qualified in the text, by any concept such as "reasonable limits".

It is important, in reading American doctrine, to be aware of relevant differences there might be between the First Amendment and ss.2(b) and 1 of the Charter. Though the constitutional text is almost never interpreted according to principles of strict construction, it is important to understand the structural and ideological importance of text. This overview accordingly begins with a discussion of the "significance of text".

From a doctrinal perspective, the First Amendment tradition can be overwhelming. Not only has the speech guarantee generated an extraordinary body of jurisprudence, the doctrine which has evolved over the years is issue-specific and context dependent. First Amendment doctrine is more atomistic and disconnected than unitary and linked. It is therefore difficult to fit the doctrines together or subsume all of First Amendment experience under a general principle of adjudication.

The excerpt below explains the three major developments in First Amendment doctrine and, where relevant, attempts to relate them to the Charter's analytical framework of breach and justification. The discussion is subdivided as follows:

1. the clear and present danger standard
2. First Amendment balancing [the evolution of the public forum, definitional balancing, and ad hoc balancing], and
3. the principle of content neutrality
4. contemporary First Amendment doctrine

The significance of text

It is not immediately apparent how First Amendment jurisprudence can have any bearing on the relationship between s.2(b) and section 1 of the Charter, much less the merits of the Oakes test.... Though both Constitutions guarantee rights, only the Charter recognizes the necessity of limiting them: because the Bill of Rights lacks a limitations clause, the First Amendment and the Charter are structurally incompatible. [By absolutely guaranteeing expressive freedom, the First Amendment rejects the possibility of limitations, either on the scope of the right or through any recognition that the state's interference with individual liberty can be justified. In contrast, section 1 establishes that the Charter's rights and freedoms are subject to those "reasonable limits" that can be "demonstrably justified in a free and democratic society".] This incongruence makes a direct analogy between American speech doctrine and the Charter difficult in any context, but especially awkward in defining the relationship between s.2(b) and section 1.[] ...

Any attempt to understand First Amendment doctrine must begin with an appreciation of the status of the Constitution in American life. Despite its indeterminacy, the constitutional text is the primordial source of authority. Paradoxically, however, the consequences of the First Amendment's absolute command are as elusive as they are obvious. One riddle is that First Amendment absolutism is a fiction, but one of paramount importance nonetheless. As a matter of abstract principle, Americans believe that speech should be absolutely free. At the same time, the reality is otherwise and limitations on expressive freedom co-exist with the ideology of absolutism.[] This tension has never been resolved: despite well-known episodes of suppression, [] the rhetoric of absolutism reigns supreme.

Though the words of the speech clause are a fiction, they make an important statement about its underlying ideology. Precisely because of the text, First Amendment absolutism has never been discredited.....

The ideological contradiction between absolute rights and permissible limitations has further implications. Conceptually, the purpose of all doctrine, whether under the First Amendment or the Charter, is to prescribe the circumstances in which expressive freedom can be limited. Yet distinctive textual provisions will unavoidably set the two bodies of jurisprudence apart. In the American tradition, it has been perennially difficult to rationalize limitations on expressive freedom. By contrast, the Charter explicitly permits limitations but fails to indicate whether they should be analyzed exclusively under section 1, or can otherwise be introduced in the substantive provisions.[ ]

At the level of doctrine, the First Amendment posed a dilemma which does not exist under the Charter. Necessity challenged the American judiciary to close the gap between an unconditional guarantee and the state's need to protect democratic values. The result is a series of judge-made doctrines which contradict the text by conceding restrictions on expressive freedom. These fictions bear a functional resemblance to Canada's concepts of breach and justification. Limitations on expressive freedom exist in the form of definitional restrictions on "the freedom of speech", as well as in a variety of justificatory standards. Significantly, because the First Amendment neither compels nor contemplates a distinction between the right and its limitations, the jurisprudence simply decides whether expressive activity is protected. Thus concepts the Charter makes mandatory are masked in the American jurisprudence.

The evolution of doctrine

The clear and present danger doctrine

The First Amendment effectively lay dormant until World War I, when the espionage cases of 1919 initiated the evolution of modern doctrine.[] At that time ... a series of convictions under federal espionage and sedition legislation forced the judiciary to consider the status of unpatriotic speech.... [These cases] gave birth to a doctrine which, despite a checkered history, is one of the First Amendment's most enduring concepts. When introduced by Justice Holmes in Schenck v. United States, the language of "clear and present danger" had no apparent doctrinal vitality.[]...

In Schenck v. United States, the defendants were convicted for conspiring to cause insubordination in the military service. They sent leaflets opposing U.S. participation in the war to men already drafted for service. In upholding their conviction, Holmes J. emphasized that the surrounding circumstances - the fact that the country was at war - justified Congressional restrictions on expressive freedom. ["When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight...."]

... In every case, he declared, the constitutional issue is a question of proximity and degree, whose answer would depend on whether "the words used [were] used in such circumstances and [were] of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

The clear and present danger test should look, to a Canadian reader, very much like a section 1 standard of justification. What it seeks to do is identify the circumstances in which the state's interest in prohibiting expressive activity is sufficient and immediate enough to warrant the violation. The test is highly contextual, and it assumes that, in the absence of a concrete or particularized harm, the state is not entitled to suppress expression.

Despite being introduced in 1919, the Schenck standard did not re-emerge in any majority opinion of the U.S. Supreme Court until 1937. At that time the Court assumed that the Schenck test could be employed as a universal First Amendment standard. A flexible interpretation of "danger" made Holmes's justificatory threshold a panacea. The Roosevelt Court readily applied the test in forum, [] labour,[] and contempt cases[] before questioning its viability as a rule of general application. ...

First amendment balancing - public forum balancing

Soon after reviving clear and present danger, the U.S. Supreme Court began to devise alternative standards.... It became apparent the standard was too single-minded: a requirement of an imminent threat of a serious danger was directed primarily, though not exclusively, at violent outbreaks. Those criteria did not address the concerns of the public forum. By suggesting that individuals could assert First Amendment rights on public property, Hague v. C.I.O. effectively recognized a prima facie right of access. [307 U.S. 496 (1939) (suggesting that certain property, such as streets, parks and sidewalks, constitute a public forum for purposes of first amendment activity).]

Once Hague acknowledged this right, the permissibility of restrictions, or a section 1 analysis, became the sole issue. ... What the public forum required instead was a standard that would weigh the individual's interest in expressive freedom against the state's need to preserve the functional integrity of streets and sidewalks. Schenck's universality was first compromised by Cox v. New Hampshire, which permitted the state's interest in the functional use of public property to prevail through the concept of reasonable time, place and manner restrictions. Though Cox allowed First Amendment rights to be offset by the state's interest in regulation, it contemplated a limited balancing exercise. Time, place and manner restrictions would only be considered reasonable if they were fair and non-discriminatory, and did not "unwarrantably abridge" the right of access. Cox's framework endures to this day.[]

In structural terms the Schenck test and forum balancing are both analogous to a justificatory analysis, or section 1 review. Each assumed that any interference with expressive freedom was prima facie in breach of the First Amendment, and each employed criteria which were patently justificatory to rationalize limitations on the right. Both were also speech-protective. Whereas restrictions pursuant to the clear and present danger standard were contingent on its strict threshold being met, content neutrality was the condition precedent to all time, place and manner restrictions.

definitional balancing

Despite the introduction of forum balancing, Schenck's hegemony remained undisturbed. ... [] [T]he clear and present danger standard had assumed the breach, thereby overlooking the preliminary issue of textual interpretation. As a result, the U.S. Supreme Court did not consider the meaning of "freedom of speech" before the 1940s. Definitional balancing or the two-tier approach, as it is sometimes called, dates from the decision in Chaplinsky v. New Hampshire. There, Justice Murphy categorically excluded the "lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words" from the First Amendment.[] Those categories were singled out because, in each case, the expressive activity was perceived to be of such marginal social utility that the costs of protection presumptively outweighed the benefits of toleration. [Justice Murphy's rationale was that such utterances are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality".]

Cox's forum doctrine and Chaplinsky's definitional limitations proposed a viable alternative to the dogma of clear and present danger. In lieu of a prescribed threshold, each purported to weigh the interest in expressive freedom against the legitimate demands of the state.[] Despite that analytical bond, forum and definitional balancing rest on contradictory assumptions. The time, place and manner doctrine employs cost-benefit analysis to accommodate conflicting interests. Significantly, no balance is struck unless and until the condition precedent of content neutrality is satisfied. Absent that requirement, local authorities could make access contingent on their subjective approval of expressive activity. Because it would acknowledge a censorial power inconsistent with the concept of access, Cox's balancing exercise prohibited any restrictions which would permit administrative censorship.[]

By contrast, Chaplinsky is based on the converse assumption that the First Amendment does not prohibit content discrimination. Justice Roberts broached the idea that "[r]esort to epithets or personal abuse is not in any proper sense communication ... safeguarded by the Constitution" in Cantwell v. Connecticut. [] Citing that passage, Justice Murphy proclaimed in Chaplinsky that some speech activity is "no essential part of any exposition of ideas."[] On this view, communication which lacks social utility can be excluded from the First Amendment. Contrary to the egalitarianism of forum balancing, definitional balancing linked the Constitution's protection to the content of speech. ... []

The two-tier approach was extended in two subsequent decisions excluding group libel and obscenity from the Constitution through an analogy to `fighting words'. First the U.S. Supreme Court upheld a statute prohibiting group libel in Beauharnais v. Illinois, 343 U.S. 250 (1952).

A few years later, and on the strength of similar analysis, Roth v. United States decided that obscene speech is not covered by the First Amendment, 354 U.S. 476 (1957). Though Beauharnais was not based on an explicit assessment that group libel makes no contribution to the "exposition of ideas", the statement that obscenity is "utterly without redeeming social importance" made Roth a classic case of definitional balancing.

Meanwhile, shortly after the decision in Chaplinsky but without reference to any two-tier theory, the U.S. Supreme Court excluded commercial expression from the First Amendment. Curiously, in doing so it declined to elaborate why "purely commercial advertising" did not implicate the Constitution. [Valentine v. Chrestensen, 316 U.S. 52 (1942); overruled in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976)] It is likely that the Court's post-crisis policy of deference on questions of socio-economic policy controlled this result.[] Though for different reasons, commercial expression was also categorically excluded from the First Amendment.

Functionally, the two-tier's definitional interpretation of the First Amendment is the equivalent of s.2(b)'s concept of breach. ...

However, from the outset, Justice Murphy emphasized that his list of exclusions was short, and limited in number. Chaplinsky was intended to apply selectively to a few "well-defined and narrowly limited" classes of speech. []... Without overruling Chaplinsky, the U.S. Supreme Court gradually rejected the assumption that the First Amendment's protection depends on the perceived social utility of the activity. ... The movement away from a two-tier approach did not gain momentum, however, until the civil rights movement deflected the Court's attention from the Cold War debate between absolutists and balancers.

Ad hoc balancing

Neither Chaplinsky nor the time, place and manner doctrine displaced the clear and present danger standard. First amendment debate would not be transformed until 1951, when the U.S. Supreme Court substituted ad hoc balancing for Schenck's prescribed standard of justification. Thereafter, a majority of the Court found the threat of communism sufficient to legitimize the suppression of political speech in almost every case that decade. In a series of vehement counterpoints, Justices Black and Douglas urged adoption of a literal interpretation of the speech clause.

The predecessor Roosevelt Court had been reluctant to acknowledge Schenck's flaws as a general principle of adjudication. Throughout the 1940s, Frankfurter's warnings about the consequences of treating Holmes's test as dogma were unceremoniously dismissed. ...

American Communications Ass'n v. Douds contains the first hint of revisionism.[] There Chief Justice Vinson dismissed Schenck's threshold requirement of a "substantial", "relatively serious" or "extremely serious" evil as rigid and an absurdity.[] He claimed that "it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation."[] It was more sensible, he suggested, to weigh the effect of a prohibition on expressive freedom against the public interest to be protected. Where the intrusion was "relatively small" and the public interest "substantial", the individual right should yield to the state's interest in regulation. The result in Douds was a decision upholding mandatory affidavits of non-affiliation with communist organizations.

... Then in Dennis v. United States the Court made a definite choice in favour of an open-ended balancing test.[] Ironically, by trivializing the speech he so eloquently defended, Holmes facilitated the demise of his own constitutional standard. If the disloyal speech of his era could be dismissed as "political drool", or "puny anonymities" incapable of turning the colour of "legal litmus paper", the altered circumstances of the Cold War required realistic apprehension of the threat inherent in a well-organized, nation-wide conspiracy. In Dennis, Frankfurter's insistent view that a formalistic application of clear and present danger would demean Holmes's legacy finally prevailed. In its place, a balancing test asked whether the "gravity of the 'evil', discounted by its improbability, [would justify] such invasion of free speech as is necessary to avoid the danger." By characterizing the interest at stake as the right of self-preservation, "the ultimate value of any society", and the Communist Party, as an "apparatus designed and dedicated to the overthrow of the Government", this methodology foreordained the result in a series of decisions.

Dennis did not invent balancing, but instead adapted existing strands of First Amendment analysis to the Court's perception of Cold War exigencies. The result was yet another hybrid which joined the contextual focus of forum balancing with definitional balancing's assumption of content discrimination. In place of Schenck's prescribed criteria was a balancing test which rejected imminent violence as the threshold of justification. Moreover, unlike the forum's presumption of neutrality, which made any balancing contingent on the even-handed treatment of speech, Cold War analysis permitted the suppression of thoughts considered "un-American".

Ad hoc balancing constitutes the closest American equivalent to section 1's open-ended contextual assessment of "reasonable limits". Throughout the 1950s, this cost-benefit analysis made the protection of expressive freedom contingent on the judiciary's subjective assessment of international diplomacy. Even if a weighing of interests is unavoidable in constitutional adjudication, the ad hoc balancing of this era could not escape its roots in the suppression of "dangerous" ideas. For sacrificing core speech values to McCarthyist hysteria, the apologism of this jurisprudence is universally deplored.

The next era of First Amendment adjudication reacted against the anti-textual deference of ad hoc balancing. ...

The demise of balancing

Though they introduced limitations at opposite ends of the spectrum, definitional and ad hoc balancing both legitimated greater interference with expressive freedom than either the clear and present danger test or a literal interpretation of the text would permit. Whereas the two-tier theory undermined the constitutional guarantee through an interpretation that was categorical and uncompromising, ad hoc balancing was based on "unprincipled case-to-case pragmatic judgment". Definitional balancing potentially excluded whole categories of speech without reference to their contextual setting. But ad hoc balancing was not the solution because its purely contextual focus had served as an apology for state censorship. ...

... Chaplinsky's two-tier theory also met its demise. The Court [soon] discovered how difficult it was to maintain a distinction between speech that is categorically excluded and speech that is included, but justifiably limited in the circumstances of a particular case. Justice Harlan's concurring opinion in Roth v. United States was the first to expose that flaw. In his view, abstract classifications could not determine concrete results because "every communication has an individuality and 'value' of its own." Accordingly, any assumption that obscenity is a "peculiar genus" that is "distinct, recognizable, and classifiable" was unrealistic. Because the problems of decision-making do not "lend themselves to generalized definitions", particularized judgments were unavoidable. Those comments suggested the futility of attempting to abstract the right from its context.

Beyond the difficulties associated with abstract, categorical exclusions, definitional balancing posed another problem. The Court also found it difficult to articulate a definition that would separate gratuitous personal insults from offensive opinions on questions of social or public importance. As early as 1949, Terminiello v. Chicago indirectly questioned whether Chaplinsky's concept of social utility was consistent with First Amendment ideology, 337 U.S. 1 (1949).

The speaker in Terminiello provoked a near riot. Although the facts suggested an archetypal application of the fighting words doctrine, the majority opinion reversed the speaker's conviction under a breach of the peace ordinance. ...

... By asserting that speech "best" serves its "high purpose" when it "induces a condition of unrest, creates dissatisfaction with conditions ... or even stirs people to anger", Douglas rejected the assumption that speech which offends others presumptively lacks social utility. ... Having discovered positive value in speech having "profound unsettling effects", Douglas created a tension between Terminiello's hostility toward any "standardization of ideas" and Chaplinsky's assumption that "speech" under the First Amendment must advance social truth through the exposition of ideas....

By 1964, the First Amendment was at the crossroads. Despite subsequent decisions extending Chaplinsky to group libel and obscenity, Terminiello had identified the flaw of two-tier theory. As the tension of the McCarthy era subsided, the censorial implications of ad hoc balancing became glaring. The Supreme Court's pronouncement in New York Times v. Sullivan that the First Amendment protected seditious libel shook the foundation of the Cold War jurisprudence. But without belittling that development, Sullivan was equally important for its retreat from Chaplinsky and revival of a jurisprudential approach to First Amendment interpretation.

The evolution of content neutrality

... Throughout the 1950s, the repressive Cold War decisions co-existed with the Court's landmark pronouncement in Brown v. Board of Education, 347 U.S. 483 (1954). The implementation of the desegregation principle, the U.S. Supreme Court's willingness to re-draw legislative districts and the extension of its supervisory authority over the state criminal justice systems together signalled the advent of an interventionist era of review. The First Amendment was one of many beneficiaries. Although the U.S. Supreme Court's complicity in the suppression of political speech diminished in the late 1950s, the breakthroughs of the next era were motivated less by regret over the treatment of communist sympathizers than by the events of the civil rights movement....

Through decisions vindicating associational privacy, self-help measures, and the right to demonstrate, the civil rights movement opened "a broad vista of free-speech theory". ...

Sullivan concerned a civil action in libel arising from the publication of a full-page advertisement in the New York Times, claiming that officials from Montgomery, Alabama had mistreated civil rights activists. ... Without directly attacking the two-tier theory, New York Times v. Sullivan challenged the concept of classification by announcing that, like a variety of "other formulae for the repression of expression", libel could claim no "talismanic immunity" from the Constitution's requirements.

The reputational insult in Sullivan was not protected by the Constitution in spite, but because of, its content. Justice Brennan's methodology is crucial to any understanding of the turnabout whereby words whose content had been presumed injurious now implicated "the central meaning" of the First Amendment. Through an appeal to traditional values, he transformed a false, defamatory statement into an exemplary act and the sine qua non of self-government.

Censorship of any kind is odious to Americans. This cultural attitude rests on a distinctive conception of self-government which represents a commitment to a democratic form of government, but has deeper roots in the idea of popular sovereignty. Parliamentary democracies do not share America's profound suspicion of content-based restrictions on expressive freedom. [In a tradition of parliamentary supremacy it is understood that freedom of expression is not absolute. By contrast, American constitutional ideology is based on a distrust of democratic authority, which means that the state lacks the authority to prescribe the content of expressive activity.] As Justice Brennan explained in Sullivan, the first principle of American constitutionalism is that "[t]he people, not the government, possess the absolute sovereignty." Because the people are sovereign, the power of self-government is their unique and exclusive prerogative. Any attempt to stifle views critical of the state presumptively violates the fiction that, in America, "the censorial power is in the people over the Government, and not in the Government over the people."...

Once the Court articulated the relationship between self-government and censorship, the consequences of an action in defamation against civil rights activists became obvious. Without the protection of the First Amendment, a "good-faith critic of government [might] be penalized for his criticism." Rather than risk liability by subjecting official conduct to rigorous scrutiny, "would-be" critics might practice self-censorship. Because of its chilling effect on the press, the threat of civil liability was indistinguishable from direct state censorship. [As Brennan stated, the fear of damage awards "may be markedly more inhibiting than the fear of prosecution under a criminal statute". He concluded that the "pall and fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive". Doctrinally, this is known as the "chilling effect".]

The law of defamation could have such an adverse effect on the press that debate about the state and the conduct of its officials would be inhibited. Given the implications for self-government, a cause of action initiated by public officials would strike at "the very center of the constitutionally protected area of freedom of speech."

In the immediate aftermath of the Cold War, Sullivan made a bold statement about the perils of censorship. By establishing a connection between censorship and the law of defamation, the U.S. Supreme Court demonstrated how any interference with public debate conflicted with the American ideology of self-government. Several years later, Sullivan's process rationale would crystallize in a requirement of content neutrality....

Though Justice Brennan's opinion may have revitalized First Amendment values, it did not discover them. It is the contextual setting that makes his discussion of first amendment values noteworthy. The New York Times advertisement contained allegations which were defamatory and injurious. It was equally apparent that expressive freedom would suffer if public officials could invoke tort law every time their conduct was criticized. The Court's dilemma was that a decision protecting defamation could not be easily reconciled with Chaplinsky or Beauharnais. The press case effectively forced a choice between a categorical exclusion of libel and an embryonic principle of content neutrality. In Sullivan the U.S. Supreme Court chose to re-inforce the proposition, first announced in N.A.A.C.P. v. Button, that neither its truth nor its perceived social utility has any bearing on the constitutional status of expressive activity.

By making the connection between censorship, self-government and content neutrality more explicit, [Justice Brennan recognized that] [f]ree debate ... can only thrive if the state is denied all "authoritative selection" over its content. Whether described in negative terms, as a denial of the state's authority, or in positive terms, as the right to engage in self-government, the result is the same: a requirement of content neutrality....

In Tinker v. Des Moines School District, the U.S. Supreme Court vindicated the right of public school students to protest the Vietnam War during classroom hours by wearing black armbands. Only one year previous, the Supreme Court had relied on a quasi-definitional distinction between speech and conduct to reject the First Amendment claim of an individual convicted for publicly burning his draft card, in United States v. O'Brien, [391 U.S. 367 (1968). O'Brien defied a federal regulation prohibiting any knowing destruction or mutilation of his draft card by burning it on the steps of a Boston courthouse.] Following that decision, Tinker could have denied the student armband protest First Amendment status. Instead, the Court characterized the symbolic display as "akin to pure speech"....

Justice Fortas refused to acquiesce in restrictions on debate aimed at avoiding controversy about the Vietnam War. If the First Amendment "means what it says", he claimed, the guarantee could not be "so circumscribed that it exists in principle but not in fact." He acknowledged that expressive freedom may provoke or threaten, sometimes resulting in "undifferentiated fear or apprehension of disturbance". Such by-products are inherent in the commitment to an open, participatory democracy. He concluded, therefore, that freedom may be hazardous, but the openness it prizes is "the basis of [America's] strength and of the independence and vigour of Americans who grow up and live in this relatively permissive, often disputatious, society."

If the result in Sullivan was surprising, the decision in Tinker is even more remarkable. Students unarguably attend public school under a regime of discipline and authority. By extending the first amendment's protection to dissident students, Tinker forged an important conceptual link between Terminiello and Sullivan. The latter could be read as a press case which simply acknowledged that the press plays a special role in effective self-government. Significantly, Tinker applied the process rationale of Sullivan to individuals engaged in a participatory act of self-government.... The lesson of Tinker is that tolerance of provocative, offensive speech is the unalterable prerequisite of any commitment to participatory democracy.

Although Tinker was preceded by the draft card case, it was the first in a series of three decisions which vindicated the principle of content neutrality without adopting it as doctrine. Notwithstanding the decision in United States v. O'Brien, the U.S. Supreme Court next reversed an individual's conviction for burning the American flag.... When he burned the flag in protest against the death of civil rights activist James Meredith, Street declared "[w]e don't need no damn flag.", 394 U.S. 576 (1969)....

[Parenthetically,] under the Charter, these cases - O'Brien, Tinker and Street - raise a preliminary question of scope, or the definition of "expression" under s.2(b). In American jurisprudence, the speech-conduct distinction assumes that words and actions are different. Doctrinally, it determines whether the expressive element is so attenuated that the activity should be described as conduct rather than speech. Analytically, therefore, it serves the same function as our concept of breach. At the same time, it should be noted that the U.S. Supreme Court rarely invokes this distinction to exclude communicative activity from the First Amendment. The speech-conduct distinction is relevant to determine the level of protection the protest would receive.

In Street's case, the Court stated that the offensive content and shock value of his protest was irrelevant. While noting that disrespect for the flag should be deplored, no less in vexed times than in calmer periods, the Court concluded that "the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Inherent in the assertion that the Constitution tolerates and protects all forms of expression, "however distasteful", is a requirement of content neutrality.

Although Terminiello, Button, Sullivan, Tinker and Street rejected the underlying assumption of content discrimination, the U.S. Supreme Court still had not spelled out a doctrinal requirement of neutrality. After Cohen v. California, the emergence of this principle became virtually inevitable, 403 U.S. 15 (1971).

Cohen wore a jacket in a Los Angeles courthouse which said "fuck the draft". The state claimed it had complied with traditional forum doctrine: Cohen's conviction for disturbing the peace was not censorship but instead, a time, place and manner restriction which was reasonable in the circumstances. The U.S. Supreme Court reversed his conviction because any distinction between the content of Cohen's message and the manner of its delivery was formalistic. Whether convicted for his opposition to the Vietnam War or not, the impact was the same. By punishing him for wearing the jacket, the state committed an act of censorship.

... Beyond the forum argument, the state argued that Cohen's jacket stated fighting words, that it was obscene, and that it would incite violence. Significantly, Harlan rejected those analogies because the content discrimination each of those doctrines permitted could only be justified by criteria which were absent in Cohen's case.

By suggesting that those doctrines tested the permissibility of content distinctions, he effectively recognized that the First Amendment is based on a prima facie rule of neutrality. Given that rule, the purpose of the fighting words, obscenity and incitement doctrines is to articulate the circumstances in which limitations on the freedom of expression are permissible. The result in Cohen was a realization that in the absence of "additional justifying circumstances", which only applied to a "relatively few categories", the First Amendment denied the state all authority to censor expressive activity because of its content.

Harlan's analysis inadvertently confirms the structural logic of the Charter. Ironically, the complex jurisprudence of the First Amendment reduces to two basic concepts: a prima facie concept of breach and diverse criteria of section 1 review. Content neutrality states a preliminary rule of entitlement and the doctrines California invoked, the section 1 exceptions to that rule. As stated above, however, Cohen's jacket-wearing exposed a gap in the doctrine. To determine the status of offensive speech, Harlan added a fourth exception to the general rule of neutrality, but circumscribed it narrowly. Under this rule the state can only protect unwilling listeners from an offensive speaker where "substantial privacy interests [are] invaded in an essentially intolerable manner". ...

Justice Harlan also explained why First Amendment ideology protected Cohen's graphic, offensive message. In response to the charge that the jacket incident was an "absurd and immature antic", he appealed to underlying values. The purpose of the First Amendment is "to remove governmental restraints from the arena of public discussion," thereby putting the responsibility "largely into the hands of each of us." In Harlan's view, whatever the merits of Cohen's individual contribution, his freedom had to be protected to ensure "a more capable citizenry and a more perfect polity." While he acknowledged that tumult, discord, and offensiveness may be the results of this process, he claimed that a society's willingness to confront and resolve its differences reflects a more enduring commitment to self-government. Thus the "verbal cacophony" inherent in a process of open debate is "not a sign of weakness but of strength".

Once again, a distinctive concept of self-government explains why Cohen could not permit the state to protect some citizens from the views of others. A truly self-governing people must accept the responsibility to confront the views they oppose. Those who are unwilling to do so must suffer the expression of those views, or otherwise bear the burden of avoiding them. Allowing the state to cleanse public debate to appease the most squeamish would offend a romantic conception of self-government as an exercise directed by "the people" as participating citizens. Accordingly, those who did not like Cohen's message had the obligation to avoid it because he was not simply exercising an individual right. He was discharging a duty and as such, he was engaged in an act of participatory citizenship which was valuable per se.

This conception of self-government requires extreme value-scepticism because any other result would legitimize censorship. Cohen re-inforced and extended Sullivan's perception that the enduring values of the first amendment relate to the process of debate, not its content. As Cohen acknowledged, such a conception of expressive freedom requires an interpretation of the speech clause that is unconditionally objective. So egalitarian was Harlan's interpretation of the First Amendment that he rejected any distinction between the cognitive and emotive aspects of communicative activity.

The Supreme Court did not formally adopt content neutrality until Police Dep't of Chicago v. Mosley, and Justice Marshall's pronouncement that the first amendment requires "an equality of status in the field of ideas." Describing content control as the "essence of [] forbidden censorship", he stated that "[a]ny restriction on expressive activity because of its content would completely undercut" the principle of Sullivan. Above all else, he claimed, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."

In the abstract, the concept is not difficult. Content neutrality prohibits the state from using its coercive power to favour or disfavour expressive activity on the basis of its content. ... Given an entire backdrop of first amendment jurisprudence, however, its impact on doctrine was far from clear.

Primarily, the problem was that whether analyzed in terms of breach or justification, Mosley's strict egalitarianism conflicted with existing doctrine. Even without that complication, a rule which treated content regulations as per se invalid was unrealistic.... Neither clear and present danger nor first amendment absolutism stated an effective rule of general application because neither gave democratic values sufficient recognition. Similarly, an absolute prohibition against content distinctions also failed to recognize the role of justifiable limits. Content neutrality could not provide a fundamental organizing principle because, as a per se rule of breach, it only addressed half of the constitutional equation.

The U.S. Supreme Court's subsequent attempts to reconcile Mosley with prior doctrine exposed that flaw. Equality in the field of ideas was at odds with a jurisprudence which judged content distinctions by a series of issue-specific standards of justification....

... Strict neutrality [also] suggests that all limitations on speech must be judged by the same standard of review. In this sense, Mosley's egalitarianism can be analogized to section 1's idea of a single standard of justification.... As Justice Stevens subsequently complained, however, though many might defend Voltaire "to the death", few would "march [their] sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities'". This observation created a second predicament.

According to the logic of Sullivan, Cohen and Mosley, content discrimination is presumptively censorial. In theory, any attempt to introduce a hierarchy of values through tiers of review was patently in conflict with Mosley, because it would make "the visage of the censor [] all too discernible". Such a requirement put instinct at war with logic, thereby compelling the U. S. Supreme Court to choose between the counter-intuitive objectivity of content neutrality and the censorial subjectivity of content discrimination.

Trapped between the two, the U.S. Supreme Court found a way to rank first amendment values without directly retreating from content neutrality. A distinction between viewpoint and content discrimination provided the solution.... Though the state enjoys a wider latitude in cases of non-political expressive activity, censorship of political messages is strictly scrutinized. By contrast, viewpoint neutrality denies the state the authority to discriminate against different opinions within the same category of speech. This distinction between content and viewpoint neutrality enabled the U.S. Supreme Court to develop different standards of review without compromising the underlying rationale of Mosley. ...

Contemporary first amendment doctrine

Current first amendment doctrine is both simple and complex. In concept, it is simple because it does not draw any distinction between the right and its limitations: the only relevant question is whether the first amendment has been violated. Moreover, to the extent it rests on a fundamental assumption of content neutrality, it is doctrinally simple. As stated, however, content neutrality did not displace a pre-existing myriad of specialized standards. Although the principle advanced the conceptual unity of the first amendment, it could not render the doctrine coherent....

The concept of breach

At present, definitional limitations on "the freedom of speech" are virtually non-existent in the American jurisprudence. Though the assumption that fighting words, defamation and obscenity are outside the first amendment endures, it endures primarily as a fiction. In theory, there is no breach of the speech clause when the state prohibits fighting words. In practice, however, the judiciary cannot decide the status of provocative speech without assessing the surrounding circumstances. Realistically, every case asks whether the speaker can be denied the Constitution's protection because the particular words he used in a particular context created a risk of violent retaliation by the listener.... It is also apparent, on close examination, that the defamation and obscenity cases are resolved by an analysis that is justificatory in nature....

Definitional limitations have lingering significance in two areas.... The tension between categorical and ad hoc styles of decision-making continues to affect the speech-conduct distinction and questions of access to non-traditional public property. If the words "freedom of speech" have any literal meaning, doctrine has to distinguish between pure speech and pure conduct.

The public forum raises the different question whether the Constitution requires the state to grant individuals access to non-traditional public property for purposes of first amendment activity. Though the justifiability of restrictions is the only relevant issue in the traditional forum, the access cases are problematic because the U.S. Supreme Court cannot decide whether the test should be definitional, or ad hoc and functional.

The concept of justification

General standards of review

A prima facie violation of the First Amendment occurs whenever the state breaches the principle of content neutrality or denies access to a traditional forum. In the absence of a special standard of justification, strict scrutiny governs in cases of content discrimination. The time, place and manner doctrine applies in access cases. There, the Court assesses the reasonableness of restrictions on activities in the public forum by the following criteria: in addition to being content neutral, such limitations must be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication....

Specialized standards of justification

In addition to the general standards which determine the permissibility of content distinctions and forum restrictions, a number of special doctrines govern particular issues. At present, the concept of clear and present danger applies selectively in cases of incitement to violence. Brandenburg v. Ohio expresses the governing standard.[] This standard has a direct analogy in the fighting words doctrine, which addresses the converse problem of incitements to retaliatory violence. The object of each is to determine whether the probability of imminent lawlessness was sufficient to justify the abridgment of speech.

Special doctrinal standards also govern prior restraints. For cultural, historical and ideological reasons, Americans consider prior restraints definitionally censorial and presumptively unconstitutional.... Though distinctive rationales may make censorship of the press especially odious, a deep suspicion of prior restraints can be found in cases not implicating the press.

In addition to the law of obscenity and defamation, a host of other special doctrines deal with disparate issues including access to judicial proceedings, broadcasting, freedom of association, compelled expression, and overbreadth.

Hierarchical standards of justification

In addition to the general and special standards of justification already discussed are other doctrines which establish a hierarchy among broad categories of speech. Political speech is at the apex of this hierarchy, commercial expression is situated in the middle, and "offensive" speech is at the bottom. This hierarchy reflects an appreciation that different categories implicate distinct speech values. It also creates some structure in the First Amendment jurisprudence.

Accordingly, choice of standard will often determine the permissibility of restrictions on expressive freedom. When the state prohibits political expression, the First Amendment's protection is "at its zenith", and the burden of justification is "well-nigh insurmountable". Although limitations are possible in theory, political expression effectively enjoys absolute protection in the United States. By contrast, limitations on commercial expression are considered regulatory, not censorial, and the constitutional standard is designed to allow the state greater latitude....

Other speech activities which can be generally described as "artistic" or "literary" are governed by a variety of standards. Interferences with artistic speech of unquestioned literary or educational value may be judged by the strict scrutiny that is reserved for content discrimination. Artistic speech of no redeeming value and prurient is judged by the special test for obscenity. Otherwise, the Court has recognized a broad discretion to regulate "offensive speech". ... Because the Court deals with offensive speech expediently, this is one of the most troubled areas of First Amendment jurisprudence. ...