Topic: First Amendment - Freedom of Speech
Senator: DeWine
Date: SEPTEMBER 13, 2005
Contents
DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.
In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.
At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.
The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.
I want to quote it very briefly: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens," end of quote.
Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.
In a recent case, a Wisconsin woman was kicked off a city bus. And this is what she was kicked off a city bus for doing: She was trying to distribute a book containing Bible stories to individuals sitting next to her.
Another case that's repeated time and time again across this country and has been for many years in towns and cities, villages across the country: Individuals are prohibited from placing political signs -- and it could be not just for candidates; it could be for school levy, against the school levy -- on their own property, on their own property, except during specified times and specified ways.
Government tells them, so many days before the election: You can't put that up there until so many days before the election -- not just for candidates but for bond issues, whatever the issue that they want to talk about through their own political speech, on their own property.
DEWINE: Another example: People who wish to exercise free speech in many public places -- these individuals are forced into so- called free speech zones, which many times are far away from the event that they wish to protest about; so far away that that they can't ever be seen or ever be heard -- out of sight.
Again we go back to the issue of you have to be heard.
In one recent case, the New York City Housing Authority refused to let a woman conduct Bible studies in a community center of a housing project, even though the community center was used for a host of activities, even weddings.
I must say, in that case, she actually won the case.
So I'm concerned when I see these restrictions. I think at the core of the First Amendment is the idea that individuals should be able to speak and be heard in public places.
Judge, I know you can't tell us how you'll decide any particular case; I'm not asking you to do that. But it is important to me that you talk to us a little bit about how you will evaluate these cases involving the right to speak in public places -- public places such as buses, metro stations, city sidewalks, public parks -- and tell us, if you could, Judge, what factors will you consider when deciding restrictions on speech in the public square as we traditionally know it.
What is proper under the First Amendment? And which ones are not? What tools will we use to decide that?
ROBERTS: Well again, of course, without commenting on any of the particular hypotheticals or actual cases.
DEWINE: I'm not asking you. And they're all real cases. But I want you to talk about that.
ROBERTS: I do think, though, first as a general matter and then to get into the law, that it is important that people keep a basic principle in mind when they're addressing these types of concerns.
And it's not a provision in the Constitution.
ROBERTS: It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country.
And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right.
Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum?
And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.
I remember, years ago, I argued one of the cases in the Supreme Court about post office and what could be done in a post office area and whether the restriction of that area to postal business meant they could exclude people who wanted to engage in political speech. And I remember thinking at the time that the precedents were very unsettled.
And I'm not sure that the court has made much progress since then.
But you do try to focus a little bit on whether you are dealing with a public forum, one that has traditionally been open to expression, and if it has, then any restrictions on expression are going to be subject to a very exacting standard before they'll be upheld.
If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction -- that was the government's argument in the post office case I litigated -- then it's a less-demanding standard in those situations.
DEWINE: Let me just follow up that with a short question, if you can give me just a reaction to this, if I could.
Do you think the First Amendment is flexible enough in the year 2005 to account for what I believe, at least, is the shrinking public square?
DEWINE: Now, I know we have the Internet, we have TV, we have radio; a lot of things that we didn't have when our founders wrote the Constitution. But I think there is a shrinking public square.
What do I mean by this? Someone who wants to run for school board today, someone who wants to support a school levy, oppose a school levy -- when you and I were growing up -- you are younger than I am, but when we were growing up in the Midwest, you could go downtown -- if you supported a school levy, let's say, you could go downtown and pass out literature in front of the hardware store or the grocery store. And that was a public place, because there was a sidewalk. And you knew everybody in town was probably going to go by there.
If you lived in a city, there were communities in the city where you could do the same thing.
Today, most people -- we just don't live that way. Most people don't. Some do, but most don't.
Today people get in their car and they go to the grocery store. They go to a strip mall, and they go to a grocery store that is surrounded all by private property, and the people who own that strip mall usually say, "You cannot come on and distribute any literature of any kind on this facility." And basically they're upheld in that right, because it's private property.
Or they go buy their clothes or everything else, their hardware, they do in a big mall, and that mall clearly -- there's a Supreme Court case right on point that says they can be excluded.
So the traditional public forum, as we know it, is really shrunk.
Does the court take that into consideration when they look at the precedents, they look at all the decisions that have been made? How does that -- without deciding any case or talking about any specifics...
ROBERTS: Well, I do know...
DEWINE: The world that we live in today.
ROBERTS: I appreciate the point. And I do know that even the analysis in this particular area, one of the factors that the court considers is the availability of alternative avenues for expression, and a concern, if they're cutting off a particular mode of expression, a particular avenue, are there alternatives available?
ROBERTS: And I think that's a very important consideration.
I think you're quite right that this one of those areas in which technology is going to figure in a very prominent way. And the question of whether this type of analysis that grew up when you are talking about a public square or town hall-type thing applies in the Internet situation and whether there's changes that do need to be made in the analysis.
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