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Chapter 13 · The Hard Cases of Free Speech
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From the page before
What did Plessy v. Ferguson allow?
The answer: Separation by race, if the separate things were 'equal'
Why: Plessy let a state separate people by race if the separate things were 'equal'. That promise was the legal floor under Jim Crow for almost sixty years. The equal part never came.
What makes Mendez v. Westminster different from the other cases in this module?
The answer: It was won in a federal appeals court, before Brown
Why: Mendez was won in a federal appeals court, not the Supreme Court. It was fought in California, seven years before Brown. Brown had a road built before it. Mendez laid part of that road.
What did Brown v. Board of Education hold about separate public schools?
The answer: They are unequal by their very nature
Why: Every justice agreed. Separate schools are unequal by their very nature, the Court said. The buildings do not matter. In public schools, Plessy's rule was done.
The hard cases of free speech
Free speech is easy to praise when the speech is easy to like. Two cases test the promise where it hurts — and both held.
New York Times v. Sullivan (1964). A police official in Alabama sued the Times over an ad about civil-rights protests. The ad had small errors. He won half a million dollars at trial. The Court reversed, with every justice agreeing, and set the rule that guards critics of power: a public official who sues over criticism must prove 'actual malice' — that the speaker knew the claim was false, or did not care whether it was. Honest mistakes about the powerful are protected. Debate about power needs breathing space, and this rule is the breathing space.
Texas v. Johnson (1989). A man burned an American flag at a protest. Texas convicted him. The Court reversed, five votes to four. The principle is the bedrock of the whole amendment: the state may not punish the expression of an idea just because most people find the idea deeply wrong. The flag ruling protects the speech you hate — which is the only kind that ever needs protection.
Neither case says the speech was good. Both say the choice is not the state's to make.
Before you turn the page
A public official sues a newspaper over critical claims that turn out to have an honest error. What must the official prove?
What principle did Texas v. Johnson rest on?
Trying to recall a thing before you read it again is what makes it stick. That is why the question is here.
Nothing is scored. Nothing is saved. No one sees your answer, and there is no account to make.