II. Smut Is Not “Only Words”: Feminists and Pornography

Feminist legal theorists believe that gender significantly affects the manner in which the legal system functions.¹¹

One of the most prominent controversies in recent free speech jurisprudence is that surrounding the feminist critique of pornography, especially as articulated by University of Michigan law professor Catharine A. MacKinnon. What MacKinnon finds abhorrent about pornography is the harm it causes by perpetuating male power and gender inequality. In contrast, existing obscenity law concentrates on the moral offensiveness and prurience of pornographic material. (The Supreme Court's landmark 1973 decision Miller v. California specifies that obscenity is anything that appeals to the prurient interest, depicts or describes sexual activity in a patently offensive manner, and lacks any serious literary, artistic, political, or scientific value.)¹² MacKinnon maintains that pornography is a form of sex, not speech. She writes in Only Words (1993), her most concise discussion of the subject:

MacKinnon had provided additional support for her claim that pornography is sex, not speech, when in one of her earlier writings she confronted head-on the classic free speech response to “speech” the listener does not like: remedy the disfavored “speech” with more “speech,” not censorship. She countered that “the assumptions the law of the First Amendment makes about adults—that adults are autonomous, self-defining, freely acting, equal individuals—are exactly those qualities that pornography systematically denies and undermines for women…. Pornography makes women into objects. Objects do not speak.”¹⁴

The consequence of this for First Amendment law is that MacKinnon seeks to ban pornography, at least in the violent, extreme forms that she describes in the excerpt above, on gender discrimination grounds.

Unlike many legal theorists, MacKinnon has done more than simply announce her theory of free speech like Moses from Mount Sinai. For example, she and like-minded feminist Andrea Dworkin drafted a model antipornography, civil rights ordinance that they also helped get adopted in several localities. Importantly, the ordinance has been struck down on First Amendment grounds in seemingly every American jurisdiction that has adopted it. The most detailed judicial opinion about the ordinance is that of libertarian U.S. Court of Appeals Judge Frank Easterbrook in American Booksellers Association v. Hudnut (1985), a case involving Indianapolis, Indiana. Easterbrook, a former law professor at the University of Chicago, wrote for a Seventh Circuit panel that the ordinance in question (one limited to violent materials) amounted to unconstitutional viewpoint discrimination. He found particular fault with the ordinance's failure in its definition of pornography to address considerations mandated by the Supreme Court in Miller v. California: prurient interest, offensiveness, community standards, the work as a whole, and whether the work has literary, artistic, political, or scientific value. Judge Easterbrook wrote:

MacKinnon responded to the Hudnut decision by declaring that Judge Easterbrook, who had discussed her scholarship in his opinion, did not understand the point of the ordinance. She wrote: “[I]f a woman is subjected, why should it matter that the work has other value?”¹⁶

MacKinnon maintains that pornography is the equivalent of hate speech (see Section III below) and that it is not entitled to constitutional protection. She further insists that the Supreme Court of Canada got it right in 1992 when it upheld Canada's criminal obscenity law. That court declared in a unanimous opinion that “if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material.”¹⁷

MacKinnon's approach to pornography has been criticized by a number of legal scholars, including Nadine Strossen, a professor at New York Law School and the longtime president of the American Civil Liberties Union (ACLU). Strossen objects, like Judge Easterbrook did before her, on free speech grounds. She writes in Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (2000):

In short, it is for lawyer/law professor Strossen, as it was for judge/former law professor Easterbrook, contrary to the Free Speech Clause of the First Amendment to suggest that speech of any kind, no matter how reprehensible, should be censored. To conclude otherwise is to forget that there is freedom of speech at all.¹⁹

III. The “N-Word” Hurts: Critical Race Theorists and Hate Speech

Critical race theorists—scholars of color such as law professors Richard Delgado, Charles R. Lawrence III, and Mari J. Matsuda, who seek to reenergize the fight for racial justice in the United States—advance arguments similar to those of MacKinnon. Indeed, they frequently cite her in their work. They also frequently disagree with the more cautious strategy of the traditional civil rights community (e.g., the NAACP). Critical race theorists are characterized most strongly by their belief that race consciousness is a necessary element in any analysis that seeks to explain how legal and cultural institutions operate in the United States.²⁰

With respect specifically to free speech,²¹ critical race theorists wish to ban so-called racist hate speech (use of the “n-word,” for example) on the grounds that (1) it has a direct psychic impact on the members of minority groups at whom it is directed; (2) it reinforces racist ideas in the minds of the majority, which further entrenches racism and leads to discriminatory acts; and (3) it violates the ban against racial discrimination embodied in the Thirteenth and Fourteenth Amendments and the Civil Rights Act of 1964.²²

Delgado, Lawrence, and Matsuda first try to work within the parameters of existing free speech law in their efforts to ban hate speech. For example, they insist that the Supreme Court's 1942 Chaplinsky v. New Hampshire decision, which held that “fighting words” are not entitled to First Amendment protection, can be invoked to outlaw racist speech. According to the Court in this case, there were certain types of words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” For the Court, these words included calling a city marshal a “God damned racketeer” and “a damned Fascist.”²³

For Delgado, Lawrence, and Matsuda, “fighting words” include hateful comments directed at minorities. Such comments are, in Delgado's evocative phrase, “words that wound”²⁴—words with profound physical consequences. Lawrence and Matsuda agree. In a line that could have been written by MacKinnon herself, Lawrence declares: “The racial invective is experienced as a blow, not a proffered idea.”²⁵ Matsuda adds: “Victims of vicious hate propaganda experience physiological symptoms and emotional distress ranging from fear in the gut to rapid pulse rate and difficulty in breathing, nightmares, post–traumatic stress disorder, hypertension, psychosis, and suicide.”²⁶

Lawrence and Matsuda also appeal to the law of defamation²⁷

in their efforts to ban hate speech. (Delgado disagrees on technical grounds.) Just as calling an honest person a crook can slander (if spoken) or libel (if written) the person, so, too, the argument goes, can hate speech defame minorities. Matsuda, again sounding very much like MacKinnon, makes the point particularly well:

Critical race theorists do not limit their efforts to the application of First Amendment precedents. They also maintain that existing free speech law should be fundamentally rethought. To make the point more directly, they insist that the central tenet of the Supreme Court's free speech jurisprudence—content neutrality—should be abandoned. To reiterate, the Court long has held that it is unconstitutional for the government to prohibit speech because of its subject matter (with a few exceptions, such as obscenity) or because the “powers that be” do not like the point of view being expressed by the speaker. Importantly, it was the desire to jettison the existing law's commitment to content neutrality that was behind many of the anti–hate speech codes that popped up on college and university campuses during the past decade or so. Indeed, criticism of the critical race theorists' approach to hate speech is best addressed through a brief examination of the campus speech codes.

The University of Michigan instituted in 1988 one of the first and broadest of the campus anti–hate speech codes. The code prohibited behavior that “stigmatizes or victimizes an individual on the basis of race” (or other status) and that also involves a threat to, or foreseeably interferes with, an individual's academic pursuits. An interpretative guide that accompanied the code listed examples of violations of the policy, including the distribution in a residence hall of flyers containing racist threats or the transmission of racist computer messages.

The code was struck down on free speech grounds by a federal district court in Michigan. Judge Avern Cohn, who decided the case, opened his opinion by stating, “It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict.” However, he noted that as a matter of constitutional law the case was an easy one for him to decide. Judge Cohn wrote:

The federal court in the University of Michigan anti–hate speech case, like the federal court in the Indianapolis antipornography case, plainly took a libertarian approach to the free speech question before it.³⁰

So, too, does most of the academic commentary on the subject. For example, Harvard University's Laurence H. Tribe, almost certainly the United States' most celebrated law professor, criticizes those who advocate the proscription of racist speech for essentially wanting to have their cake and eat it too. According to Tribe, that is not how the First Amendment works. He writes in his classic treatise, American Constitutional Law: “If the Constitution forces government to allow people to march, speak, and write in favor of peace, brotherhood, and justice, then it must also require government to allow them to advocate hatred, racism, and even genocide.”³¹

IV. Cool Kids Smoke Camels: Libertarians and Commercial Speech

The far Left is not alone in wishing to change at least some aspects of existing free speech law. Libertarian scholars—who maintain that each individual has the right and responsibility to make decisions that are important to his or her life³²

—disagree with the Supreme Court's practice of protecting so-called commercial speech (for example, an advertisement promoting the sale of goods or services) less vigorously than other types of speech, most notably “political” speech (for example, an election campaign stump speech). Alex Kozinski, a prominent libertarian U.S. Court of Appeals judge, sometimes jokes: “Nobody likes commercial speech. Liberals don't like it because it's commercial. Conservatives don't like it because it's speech.”³³

Innumerable constitutional theorists have advanced a host of arguments over the years to try to explain why commercial speech deserves less protection than other types of speech (for example, it is not about literature, art, politics, or science). However, no one has convincingly explained why the Supreme Court came to view commercial speech as deserving less protection than other speech—and in 1942 (see below), no protection at all. In fact, one of the best known articles on the subject, Judge Kozinski's “The Anti-History and Pre-History of Commercial Speech,” suggests that it just sort of happened.³⁴

Doctrinally, Valentine v. Chrestensen (1942) was the watershed. In this case, a businessman claimed that a city ordinance that had made it illegal to distribute commercial and business ads in the streets violated his right to freedom of speech. In a two-and-a-half page opinion for a unanimous Court that amounted to little more than an assertion, Justice Owen J. Roberts disagreed. He wrote:

Although the Court now affords some protection to commercial speech—the road to how the Court reached its current destination is a bumpy one littered with the justices' efforts both to articulate and to apply a series of virtually indecipherable multipart tests³⁶

—it suffices to say that commercial speech still receives less protection than most other types of speech and that libertarians such as Judge Kozinski are highly critical of this state of the law. In his first article on the subject, his influential 1990 Virginia Law Review piece with Stuart Banner, Judge Kozinski declared that the commercial/noncommercial speech distinction is meaningless. He pointed out that the text of the First Amendment draws no distinction between commercial speech and noncommercial speech, that commercial speech is no more or less objective than noncommercial speech, as well as no more or less durable, and that—the Court's oft-stated conclusion to the contrary notwithstanding—commercial speech does more than simply propose a commercial transaction. (For example, it often projects a lifestyle: drink Diet Pepsi [Budweiser, or whatever] and get the girl [or guy].)³⁷ Judge Kozinski also does not believe that, as proponents of the distinction maintain, affording the same level of protection to commercial speech as to noncommercial speech will result in the dilution of the protection afforded to noncommercial speech. He notes, by analogy, that heightening the level of protection afforded to inaccurate commentary about public officials, as was done in New York Times v. Sullivan (1964), did not result in an overabundance of libel.³⁸ In fact, he insists that greater protection of commercial speech would benefit communication, capitalism, and the free market.³⁹

Judge Kozinski's call for the elimination of the distinction in the level of protection afforded to commercial and noncommercial speech has been cited in well over a hundred law review articles. Not surprisingly, some scholars agree with his position, and some do not. For example, the Harvard Journal of Law and Public Policy, arguably the nation's most libertarian law review, published a “recent development” commentary on the Supreme Court's 1997 commercial speech case Glickman v. Wileman Brothers & Elliot, Inc., endorsing Judge Kozinski's position.⁴⁰

However, Ronald K. L. Collins and David M. Skover, two of the nation's most innovative commentators on the First Amendment,⁴¹ are critical of it. They also come close to suggesting that commercial speech deserves no First Amendment protection at all (think Valentine v. Chrestensen). They write: “If Kozinski … must divide the universe of First Amendment thinking, why must it be restricted to history-based or theory-based approaches alone? Why can't the ‘real-life First Amendment’ ([his] words, our emphasis) be understood from the vantage point of the real-life experience of commercial discourse [which is ruining the country]?”⁴²

Judge Kozinski's position also has been cited in more than a dozen cases. The most important of the cases is 44 Liquormart, Inc. v. State of Rhode Island (1996).⁴³

This case involved two 1956 Rhode Island statutes that had forbidden sellers and the media from advertising the price of alcoholic beverages. The avowed purpose of the legislation was to promote temperance by increasing the price of alcohol. The statutes were upheld by the Rhode Island state courts in 1985, but subsequently invalidated on free speech grounds by the U.S. District Court for the District of Rhode Island. The U.S. Court of Appeals for the First Circuit reversed the District Court. However, the Supreme Court reinstated the District Court's ruling by a 9–0 vote. As is so often true in major cases decided during the modern era, the justices were divided in their reasoning—especially as to what test to apply (making 44 Liquormart yet another bump in the Court's doctrinal road).⁴⁴ Chief Justice Rehnquist and Justices Sandra Day O'Connor, David H. Souter, and Stephen G. Breyer maintained that Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980)⁴⁵ provided the relevant test. Justice Scalia agreed—for the moment (i.e., until counsel in a future case could persuade him that there is a better test to apply). Justices John Paul Stevens, Anthony M. Kennedy, and Ruth Bader Ginsburg argued that a blanket ban on a particular type of commercial speech must be viewed with “special care” and cannot be approved unless the speech is misleading or related to an illegal activity. Justice Clarence Thomas, citing Judge Kozinski's 1990 article, called for the abandonment of the distinction between commercial and noncommercial speech, at least when the objective of the government regulation in question is to manipulate consumer preferences about lawful products. Justice Thomas wrote: “Nor do I believe that the only explanations that the Court has ever advanced for treating ‘commercial’ speech differently from other speech can justify restricting ‘commercial’ speech in order to keep information from legal purchasers so as to thwart what would otherwise be their choices in the marketplace.”⁴⁶

Justice Thomas, like Judge Kozinski before him, is plainly a libertarian on at least some aspects of free speech law—including on the need to afford commercial speech the same level of protection as noncommercial speech. Consequently, Judge Kozinski has one member of the Supreme Court in his corner.⁴⁷

For both of these provocative jurists, speech is speech, and free speech law should both value and vigorously protect it as such.

V. William Shakespeare, Yes; Danielle Steel, No: Legal Republicans and Deliberative Democracy

Some constitutional theorists have taken a strong interest in republicanism—the ideology, not the political party affiliation (academics are notoriously leftist in partisan orientation)⁴⁸

—in recent decades.⁴⁹ Cass R. Sunstein, a law professor at the University of Chicago, is the most prolific of the theorists who have done so. The cornerstones of what Sunstein alternatively terms a “deliberative democracy” and a “republic of reasons” are political deliberation, citizenship, agreement as a regulative ideal, and political equality. The four are interrelated, with political deliberation being the primary virtue and the other three elaborative of it. While it is difficult to summarize Sunstein's often open-ended argument, at bottom he seeks discussion among politically equal and active citizens about what choices should be made in the interest of the common good. And in typically republican fashion, he claims that such discussion will lead to “correct answers.”⁵⁰

In contrast to some of the other leading legal republicans who merely state their respective theories without offering suggestions for how their theories can be actualized, Sunstein supplements his theory with reform proposals. It is in these reform proposals where his theory of free speech takes center stage.

Sunstein advances what he claims is a Madisonian reading of the Free Speech Clause—an approach that he insists makes the protection of political speech the dominant purpose of the First Amendment.⁵¹

(Robert H. Bork, arguably the nation's most influential legal conservative, makes a similar argument in his classic article on the subject, “Neutral Principles and Some First Amendment Problems.”)⁵² Sunstein maintains that the prevailing libertarian approach to free speech law protects too much speech in some areas (for example, pornography and racist speech) and too little speech in other areas (for example, access to government information and to the media during political campaigns). He therefore proposes that racial slurs be banned (but that other hate speech not be), that violent pornography be outlawed (but that erotic speech not be), and that the public be permitted to access government information (but that the government be allowed to decide which speech it will fund). He also supports limits on individual campaign expenditures (but argues for increased access by politicians to the media during political campaigns). He favors controls on advertisers (but maintains that corporations have First Amendment rights), and he calls for a dramatic improvement in the quality of television shows. (Mike Wallace and 60 Minutes apparently are okay, but Mary Hart and Entertainment Tonight are not.)⁵³

It is difficult to know quite what to make of Sunstein's proposals. Indeed, Burt Neuborne, a law professor at New York University and the former executive director of the ACLU, concludes in a review of Sunstein's book Democracy and the Problem of Free Speech (1993) that “many of Professor Sunstein's distinctions lack a principled basis, other than Cass Sunstein's own view of what should or should not be censored…. In the end, his argument comes down to allowing [his] social class to use the government to elevate its speech preferences over everyone else's.”⁵⁴

In short, Neuborne maintains, Sunstein's book is merely the most prominent example of the impatience the “reformist left” has for certain types of “uncongenial” speech (for example, corporate speech) that previously had not enjoyed the impact on American society that it currently does.⁵⁵

Neuborne appears to disagree with almost everything Sunstein says in his book. For example, he rejects the “prime value” that Sunstein chooses to “run his machine”: political equality.⁵⁶

Neuborne invokes the work of the late Thomas I. Emerson of Yale Law School to suggest that “respect for individual autonomy is an integral part of any complete conception of the First Amendment.”⁵⁷ Perhaps most importantly, Neuborne fears that “reformist censors”⁵⁸ such as Sunstein likely will rue the day they championed the suppression of any type of speech. He concludes his review with the following admonition:

Neuborne would be pleased to know that Sunstein's theory of free speech has been fully embraced by only one judge of record. In Painter v. Graley (1994), a tort action by a former municipal chief deputy clerk who claimed he was wrongfully discharged for running for city council, Justice James A. Brogan of the Ohio Supreme Court wrote:

Unfortunately for legal republicans, Justice Brogan's opinion was a dissent. (It is also not clear from this dissent that Justice Brogan understands Sunstein's often open-ended argument.)

VI. Looking for Law in All the Wrong Places⁶¹

See the classic country song “Looking for Love in All the Wrong Places” written by Wanda Mallette, Patti Ryan, and Bob Morrison.

If the prior pages of this essay have demonstrated anything, they have demonstrated that politics is at the heart of the theories of free speech articulated by a number of the nation's most prominent constitutional theorists. Feminists such as MacKinnon and critical race theorists such as Delgado, Lawrence, and Matsuda are seeking to make the Free Speech Clause more egalitarian than the Supreme Court's existing free speech jurisprudence permits. (MacKinnon focuses on women's rights, while Delgado, Lawrence, and Matsuda concentrate on the rights of minorities.) Judge Kozinski, as a libertarian, wants the Court to limit the government's power to curtail all forms of freedom, including the freedom to express the virtues or vices of particular commercial transactions. Finally, Sunstein, a legal republican, wishes to ensure that the American people are being exposed to the “right” kind of speech so that the community as a whole will be better off.

After examining these specific free speech theories, the question that quickly came to my mind was: Is it possible to articulate a theory of free speech that is not simply a vehicle for effectuating a given set of preconceived political value choices, whatever those value choices might be (e.g., the empowerment of women; the empowerment of blacks; the expansion of the sphere of individual liberty; making individuals and, hence, the community better)? My hunch, as someone who has written about the relationship of political values to constitutional law at a more generalized level than free speech—that of the Constitution as a whole—was that it is not.⁶²

However, in an effort to avoid the all too common trap of being overly comfortable with the conclusions of my prior research, I posted the following query to the “ConLawProf” discussion list:⁶³

Gregory C. Sisk, then a law professor at Drake University, replied that the “absolutist approach” of the late Supreme Court Justice Hugo L. Black might fit the bill. “[F]rom a textual and legalistic standpoint, one might argue that the seemingly mandatory and absolute prohibition of ‘no law’ creates a rather powerful presumption against limiting any expression for any reason, regardless of theory or politics or even (mostly) practical policy arguments.”⁶⁵

Intriguingly, Sisk's post sparked a brief debate over whether Justice Black's approach was a “theory” at all. Craig N. Oren, a professor at Rutgers School of Law–Camden, insisted that it was not because Black's approach simply collapses into the question, “[S]o what does ‘freedom of speech’ mean?”⁶⁶ Sisk was resolute, though. He maintained:

Oren, of course, remained committed to his view that the answer cannot be found in Justice Black's absolutism.⁶⁸

(Law professors, even more than most people, do not like to admit they might be wrong.)

I agree with Oren. However, before I explain why, I need to explore in more detail than Sisk was able to do in his post what Justice Black's “theory” of free speech was. Justice Black, who was appointed to the Supreme Court from the Senate by President Franklin Delano Roosevelt in 1937 and who served on the high bench until his death in 1971, insisted that the First Amendment declaration that the government⁶⁹

shall make “no law” abridging the freedom of speech means just that: the government shall make no law abridging the freedom of speech. Justice Black made the point in dramatic fashion in a 1962 public interview with Professor Edmond N. Cahn of New York University School of Law:

Justice Black's commitment to free speech absolutism was not limited to public conversations with law professors. He wrote numerous judicial opinions employing the approach, and in those opinions he purported to oppose any prior restraint of the press and any regulation of speech. For example, with respect to prior restraint of the press, in a concurring opinion in New York Times v. United States (1971), the so-called Pentagon Papers case in which the Court held by a 6–3 margin that a court order stopping publication of excerpts from a top-secret Defense Department history of the Vietnam War violated the First Amendment, Justice Black stated that, even when national security might be at stake, “the history and language of the First Amendment support the view that the press must be left to publish news, whatever the source, without censorship, injunctions, or prior restraints.”⁷¹

With respect to more general regulations on free speech, Justice Black dissented in a string of cases in which the Court upheld laws that penalized individuals for advocating the overthrow of the government.⁷² In the most famous of these cases, Dennis v. United States (1951), wherein the Court affirmed the petitioner's conviction of conspiracy to organize a Communist party, Justice Black wrote:

It is difficult not to be moved by Justice Black's evocative words. However, only one other member of the Supreme Court consistently shared his absolutist interpretation of the First Amendment: Justice William O. Douglas. Importantly, Justices Black and Douglas parted company on the so-called symbolic speech cases—a state of affairs that calls into serious question whether the absolutist approach to free speech is a purely law-based approach after all. Two cases decided a year apart illustrate the point: Street v. New York (1969)⁷⁴

and Tinker v. Des Moines Independent Community School District (1968).⁷⁵

Street found the Court, in a 5–4 vote, reversing the conviction of appellant Sidney Street for violating a New York law that had made it a crime publicly to mutilate or “publicly [to] defy … or cast contempt upon [any American flag] either by words or act.” Street, outraged that civil rights activist James Meredith had been shot and wounded, took an American flag he owned to a street corner near his Brooklyn home and ignited it. He shouted: “We don't need no damn flag…. If they let this happen to Meredith, we don't need an American flag.”

Justice John Marshall Harlan II wrote for the Court that the New York law violated Street's right to freedom of speech because the record indicated that Street's conviction was either based solely upon his words or upon his words and his conduct. Justice Harlan explained:

Justice Douglas signed on to Justice Harlan's opinion for the Court. Justice Black, however, filed a dissenting opinion.⁷⁷

He stated: “If I could agree with the Court's interpretation of the record as to the possibility of the conviction's resting on [Street's] spoken words, I would firmly and automatically agree that the law is unconstitutional.”⁷⁸ For him, though, Street's conviction was for “the burning of the flag and not the making of any statements about it.”⁷⁹

Tinker found the Court striking down, in a 7–2 vote, a public school regulation banning the wearing of armbands, as applied to the wearing of black armbands in protest of the Vietnam War. The Court, speaking through Justice Abe Fortas, treated this symbolic conduct as “pure speech” and concluded that the regulation discriminated on the basis of the speakers' viewpoint. The Court recognized that students' speech is not immune from regulation when it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” but concluded that such was not the case with the speech at issue because the three students in question had been quiet and passive when wearing the armbands. In Justice Fortas's memorable phrase, students do not leave their free speech rights “at the schoolhouse gate.”⁸⁰

Justice Douglas joined Justice Fortas's opinion for the Court. Justice Black filed another impassioned dissent. Importantly, he assumed for the sake of argument that the wearing of the armbands by the students in protest of the war was speech. This type of speech could be banned, however. He wrote: “[I]f the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.”⁸¹

To borrow a line from the late singer Marvin Gaye, “What's going on?”⁸²

Why was Justice Black, the consummate absolutist, willing to regulate conduct that was clearly accompanied by speech (in the flag burning case) and conduct that he was willing to assume was speech (in the armband case)? The most plausible explanation seems to be that the speech in question ran contrary to certain values to which he was strongly committed: patriotism (in the flag burning case) and discipline in the schools (in the armband case). With respect to Justice Black's patriotism, the opinions he wrote on the Court during his three-plus decades of service and the books, articles, and speeches he authored as a private citizen are replete with references to his love of country. For example, he concluded his most well-known book, A Constitutional Faith (1968), as follows:

Justice Black's patriotism was not lost on his biographers. Indeed, Roger K. Newman describes the public outpouring of emotion at Justice Black's funeral as tears shed for a patriot:

Apparently, for Justice Black, as for the members of the Court who dissented from Texas v. Johnson twenty years later, the flag was “different,”⁸⁵

and, therefore, it was entitled to all the protection the law could afford—even if a consistent absolutist would recognize that an individual had a First Amendment right to burn it while saying why he was burning it.

Turning to the armband case—the case in which Justice Black was willing to assume that the wearing of a black armband in public school in protest of the Vietnam War was speech—Justice Black's belief in the importance of education, coupled with his obvious subscription to the adage that children should be “seen and not heard” in school, was apparently so strong that it trumped his absolutist reading of the First Amendment. His memoirs are replete with so many passages illuminating how highly he valued education⁸⁶

that it seems fair to conclude that it was where the speech occurred in Tinker that trumped his absolutist approach to the First Amendment in that case. Indeed, it is not unreasonable to suggest that Justice Black, himself an opponent of the Vietnam War, would have afforded absolute protection to the students in question had they been wearing the armbands outside of school—like, say, on the street corner near Sidney Street's Brooklyn home.