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Can Free Speech Go Too Far?

A neo-Nazi group's roadside message raises questions about protecting offensive speech

By Michael Cooper

When a neo-Nazi group applied to adopt a stretch of Missouri highway in 2007, state officials felt powerless to refuse.

The state knew it had to approve the application from the National Socialist Movement on First Amendment grounds: Six years earlier, the U.S. Supreme Court had ruled in a similar case that Missouri had to allow the Ku Klux Klan to adopt a highway.

The decision to let the National Socialist Movement—a group that dreams of a nation where only those "of pure white blood" who are not Jewish or gay may be citizens—put up promotional signs on a state highway upset many area residents, particularly Jews. It also raised questions, as similar cases have in recent years, about the limits of the First Amendment, and how much intolerance society should accept in trying to accommodate free speech.

"The government may not play favorites," says Charles C. Haynes of the First Amendment Center in Washington, D.C. "They can't say, 'Well, we don't like what you stand for, so you can't participate and others can.'"

The 45 words of the First Amendment lay out what the Founding Fathers regarded as the fundamental rights that Americans are entitled to: freedom of speech, religion, press, peaceful assembly, and the right to petition the government.

"Our Framers understood that the great danger of democracy was the tyranny of the majority," and that the rights of those in the minority must be protected, says Haynes. "That's why those 45 words are so important."

The courts have ruled that free speech also extends to "symbolic speech": nonverbal acts that express ideas, such as wearing an armband in protest or burning a flag.

But at the same time, the courts have concluded that some restrictions on speech are necessary. Among the things that are not protected by the First Amendment are defamation (false attacks on someone's character), child pornography, "fighting words"(statements likely to provoke a violent reaction), and speech that expresses a genuine threat to the safety of others—the proverbial "no one has the right to yell 'fire' in a crowded theater."

But the boundaries of free speech are not always so clearly marked. Indeed, over the years the question of where free speech begins and where it ends has been the subject of intense debate, and the focus of a number of landmark legal cases.

In 1977, a neo-Nazi group applied for permission to parade through Skokie, Illinois, a suburb of Chicago with many Jews who had survived Nazi Germany. In response, the town council passed an ordinance outlawing public demonstrations of hatred for groups based on their religion, race, or ethnicity.

Cross Burning

Frank Collin, the neo-Nazi group's leader, thought the ordinance violated his group's constitutional rights and sued Skokie's mayor on First Amendment grounds. Though public opinion was squarely against Collin, the U.S. Court of Appeals ruled, in Collin v. Smith, that the neo-Nazis had the right to march. The 1978 ruling affirmed the courts' commitment to protecting speech—even when it's controversial or hateful.

Where to draw the line can come down to the question of intent. Consider cross burning: Because cross burning by groups like the Ku Klux Klan has a horrible history in the U.S.—usually as a way to terrorize blacks—the Supreme Court ruled in 2003, in Virginia v. Black, that some restrictions on cross burning are permissible, but the practice cannot be banned outright.

Challenges to limits on free speech have not always come from hate groups. In 1984, Gregory Lee Johnson burned an American flag in protest at the Republican National Convention in Dallas. Johnson was convicted under a Texas law banning flag desecration. He appealed, and in 1989 the Supreme Court ruled, in Texas v. Johnson, that flag burning is political expression protected by the First Amendment.

The ruling set off a firestorm, and 21 years later Americans remain deeply divided on the subject. There have been several attempts to override the Supreme Court's decision with a constitutional amendment banning flag burning. But the amendment, which was last voted on in 2006, has never passed both houses of Congress—the first step in the process—much less gotten the approval of three-fourths (38) of the nation's state legislatures.

In Missouri, state officials who were forced to grant the adopt-a-highway request decided to counter the neo-Nazi group's speech with more speech, in the form another roadside sign. The idea was to rename the highway itself in honor of someone who better represents the ideals of the community.

Missouri State Representative Sara Lampe is currently working to rename the section of highway for Simon Wiesenthal, who devoted his life to tracking down Nazi criminals.

Lampe believes renaming the highway serves an important function. "I don't want to deny the National Socialist Movement their right to freedom of speech," she says. "I just want to make sure there is another point of view on that highway."

(The New York Times Upfront, Vol. 142, April 5, 2010)