Sunday, March 6, 2022
The Value in "Low-Value" Speech
Last week, another contributor to this blog, Adam Lamparello, wrote a purposefully provocative piece, arguing that low-value speech that causes emotional distress should be without First Amendment protection. By prearrangement, this post responds to it.
As I thought about my response, I recalled a television appearance I made the day before the argument in Forsyth Cnty. v. Nationalist Movement. I was asked to discuss the issues in the case, as was the attorney who would argue the case for the Nationalist Movement, the white supremacist group he had founded. He predictably used the platform to spout his “philosophy,” but did little to explain his planned argument.
I vividly recall that when I asked to respond to his offensive statements, I explained that even a person as despicable as he was fell within the First Amendment's protection, though not based on any belief that the views he expressed had inherent value. In supporting free speech, I was not supporting his detestable views; I was supporting the Bill of Rights. Our obligation was to use our own free-speech rights to denounce him and his views, rather than silence them. In this way, the First Amendment serves as a safety valve. Doing so prevents those opinions from existing only underground, lulling us into complacency only to emerge more virulently and unexpectedly. It also allows us to employ counter-speech to organize against it. The facts that gave rise to Forsyth Cnty. supply a useful example.
The county sits 30 miles northeast of Atlanta. In 1912, more than 1,000 Black residents of the county were driven from it after one was lynched on accusations of rape and murder of a white woman. By 1987, the county remained 99 percent white. It was in that year that civil rights activist Hosea Williams led a “March Against Fear and Intimidation” by 90 demonstrators. They were met by 400 counterdemonstrators from the KKK and the local affiliate of the Nationalist Movement and greeted with thrown rocks, bottles, and racial slurs that quickly brought the march to an end. Undeterred, Williams returned the following weekend. This time, he brought 20,000 fellow marchers, along with civil rights leaders, Senators, presidential candidates, and an Assistant United States Attorney General. It was the “largest civil rights demonstration in the South since the 1960s.” The march was protected by “3,000 state and local police and National Guardsmen,” rather than the small local police force that had been overwhelmed at the first march. The larger law enforcement contingent largely checked the 1,000 counterdemonstrators.
The nub, however, was that police protection produced a bill of $670,000, though the county only paid a small part of it. The county then enacted an ordinance that imposed a variable fee on future marchers that would be set in the county’s discretion each time. A later ordinance capped the fee at $1,000 per day.
In January 1989, the Nationalist Movement planned their own demonstration to voice opposition to the Martin Luther King, Jr. holiday, and Forsyth County imposed a $100 permit fee to cover the county administrator’s time in issuing the permit, but not for potential police protection. In the challenge to that fee, the Supreme Court, 5-4, held that the fee was an unconstitutional content-based burden on free speech with the fee set by the officials’ estimate of “the public’s reaction to the speech.”
Proponents of treating certain speech as low-value or subject to regulation because of its emotional impact often assume that such regulations will protect the people and causes they like and only hurt speech that they condemn. History teaches otherwise. All who would change the status quo create discomfort and perhaps even cause emotional distress to those aligned with entrenched powers. Last week, in a New York Times op-ed in support of Judge Ketanji Brown Jackson’s nomination to the Supreme Court, Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, wrote: “This is how change begins — by destabilizing comfortable narratives, with the inclusion of those who have not been seen.” In fact, free speech has its most urgent application when the ideas expressed do not have majority approval.
One need only look at the accusations made in many parts of the country that anything that smacks of racial justice or history constitutes critical race theory and must be suppressed to prevent white schoolchildren from feeling inferior. To that end, Tennessee enacted a law in June that prohibits lesson plans that cause a student to “feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.” The blatantly unconstitutional law was not enacted to protect minority students from emotional distress, but to protect the white majority from confronting racism. It, like any carve-out of an exception for low-value, emotionally distressing speech, simply gives those in power the authority to suppress dissent -- and, too often, progress.
 505 U.S. 123 (1992).
 It turned out that his philosophy was his argument. Before the Supreme Court, he spoke about “the shiny sword of reason that ousts tyranny” and announced that he hoped his tombstone would read: “The road not taken, but not the speech not given.” Chief Justice Rehnquist responded, “How about the argument not made?” Tony Mauro, “Avowed Racist Flies Solo in Speech Case,” Legal Times, Apr. 13, 1992.
 Forsyth Cnty., 505 U.S. at 125-26.
 Id. at 126.
 Id. at 126-27.
 Id. at 134.
 Sherrilyn A. Ifill, “Who’s Afraid of Ketanji Brown Jackson?,” N.Y. Times (Mar. 2, 2022), available at https://nyti.ms/3tAOkaC.
 Tenn. Code § 49-6-1019(a)(6).