Free Expression in the Warren and Burger Courts

Abstract

Free Expression in the Warren and Burger Courts Lillian R. BeVier The three and a half decades ofthe Warren and Burger Courts—1953 to 1986—were years during which First Amendment doctrine underwent profound change. The challenge of capturing even the highlights of this change in this brief essay has required me not only to be highly selective but, with regard to the material I have selected to discuss, to paint with a very broad brush, to omit significant details, and to forego nuance almost entirely. Even more frus­ trating has been the necessity of leaving all but the barest outlines of supporting arguments on the cutting room floor, for which I beg the reader’s understanding and indulgence. The free expression cases ofthe Warren and Burger era reflected the gamut ofsocial upheav­ als that flowered during those turbulent years. Not every First Amendment case that the Court decided was an artifact of the salient controversies of those times, of course, but many were. Nor was every momentous series ofevents equally productive ofFirstAmendment controversy, but—again—many were. Considerjust four signal events: the Cold War and McCarthyism, the Civil Rights movement, Vietnam, and Watergate. First, the Cold War. When Chief Justice Earl Warren took office, the Cold War was, well, still pretty hot. McCarthyism, as embod­ ied in the Senator himself, may havejust about run its course: he was censured by his Senate colleagues in 1954 and died in 1957. Still, many in the country were preoccupied by the internal threatthat, theyperceived, communists and their sympathizers posed. These preoccu­ pations generated a variety ofregulatory efforts, the operation ofwhich in turn produced a con­ siderable volume of First Amendment litiga­ tion. Suspected communists, forexample, were prosecuted and convicted for conspiracyto vio­ late the Smith Act,1 which made it a crime to advocate forcible overthrow ofthe government, and they challenged their convictions.2 The Subversive Activities ControlAct of 19503 re­ quired “Communist Action organizations” to register, and they challenged the requirement.4 Government employees subjected to loyalty programs;5 witnesses reluctant to testify before 192 JOURNAL OF SUPREME COURT HISTORY legislative investigators;5' bar applicants denied admission for their failure to answer questions concerning communist party membership;6 veterans claiming tax exemptions but refusing to disclaim advocacy ofgovernment overthrow by force or violence;7 and teachers objecting to filing annual affidavits listing the organiza­ tions to which they belonged8—all mounted First Amendment challenges. As the Civil Rights movement gained mo­ mentum, it manifested itself in a variety of ways, and its opponents devised a number of strategies that attempted to use law to impede its progress. Many of these thrusts and counterthrusts also produced important First Amendment controversies. There were sit-ins, stand-ins, parades and demonstrations.9 The government demanded information from citi­ zens, and its demands inspired refusals to com­ ply based on claims to freedom-of-association .10 Activists organized litigation,11 and tried to raise money—and public consciousness, and in the course of these efforts made an occa­ sional defamatory and false statement offact.12 Some people burned flags.13 And always, it seemed, to goad and provoke, there was the Ku Klux Kian.14 In the late 1960s and early 1970s the Viet­ nam War occupied center stage. Controversy overUS involvement drew from a deep well of protest sentiment, which expressed itselfin ac­ tivities that gave rise to some relatively novel First Amendment claims: draft protesters burned draft cards;15 students wore black armbands to school;16 newspapers published top secret Defense Department documents that a former Pentagon official had purloined.17 Young people emblazoned their clothes with words and symbols oftheir disaffection;18 they “misused” the American flag;19 they staged skits wearing military uniforms which they had no authorizationto wear;20 and they indiscrimi­ nately addressed others using language that in days gone by would have been considered in­ sulting—to say the least.21 The Watergate scandal that so distractedthe nation in 1973 and 1974 did not directly give rise to First Amendment litigation, but indi­ rectly it did. For it was purportedly in response to the campaign abuses thatthe Watergate scan­ dal brought to light that Congress passed the wide...