When legal commentators speak of First Amendment greats on the U.S. Supreme Court, they often mention Oliver Wendell Holmes and Louis Brandeis, the so-called “Fathers of the First Amendment” who contributed greatly to the development of free-expression jurisprudence with their seminal opinions in the 1910s and 1920s. Holmes crafted the clear-and-present-danger test and wrote about the marketplace-of-ideas justification for free speech with his “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Brandeis articulated the fundamental First Amendment principle of counterspeech when he wrote that the preferred remedy to harmful speech is “more speech, not enforced silence.”
Many mention Hugo Black, who was famous for carrying a copy of the Constitution in his pocket and noting that “no law” in the First Amendment really meant no law. In his opinion in the Pentagon Papers case of New York Times Co. v. United States (1971), Black opined that “the press was protected so that it could bare the secrets of government” and that “only a free and unrestrained press can effectively expose deception in government.”
Still others speak of William J. Brennan, whose 34 years on the Court included a remarkable turnabout on obscenity law and the authoring of the seminal free-press, libel-law decision of New York Times Co. v. Sullivan (1964), in which he wrote about the “profound national commitment to the principle that debate on public issues should be robust, uninhibited and wide-open.” Today, many laud Justice Anthony Kennedy for his vigilant protection of First Amendment interests. For example, Kennedy believes that content-based restrictions on political speech are per se unconstitutional. He explained in Republican Party of Minnesota v. White (2002) that “content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests.”
Yet, there is another justice who deserves mention with all these First Amendment judicial giants. Though he served less than a decade on the high court from 1940 to 1949, Justice Frank Murphy distinguished himself for his passionate defense of individual liberties. He wrote the Court’s opinion in Thornhill v. Alabama (1940), finding that labor picketing was entitled to First Amendment protection. “Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society,” Murphy wrote.
Murphy repeatedly voiced his belief that religious freedom was entitled to great constitutional protection, and he showed concern over the plight of Jehovah’s Witnesses, who were often persecuted for their religious beliefs and expression. In his concurring opinion in Martin v. City of Struthers (1943), he wrote: “I believe that nothing enjoys a higher estate in our society than the right given by the First and Fourteenth Amendments freely to practice and proclaim one’s religious convictions.” The next year, he dissented in the Court’s decision in Prince v. Massachusetts (1944), in which the majority convicted a Jehovah Witness woman for allowing children to sell religious magazines on the street. Murphy explained that “Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.”
Along with fellow Justices William Douglas and Hugo Black, Murphy changed his mind with respect to compulsory flag-salute laws in public schools. These laws, enforced against Jehovah Witnesses and their children, resulted in expulsions for the children and fines and worse for their parents. Murphy had voted to uphold such a Pennsylvania law in Minersville School District v. Gobitis (1940) but changed his mind and invalidated a similar West Virginia law in West Virginia State Board of Education v. Barnette (1943) three years later. Murphy explained: “Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.”
However, Murphy’s First Amendment record includes his famous opinion Chaplinsky v. New Hampshire (1942), which created the fighting-words exception to the First Amendment. More than that, the opinion contains a passage that is cited frequently by courts when they stress that the First Amendment does not protect all forms of speech. The passage reads: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Murphy’s passage establishes the categorization model of First Amendment law — that one way to distinguish protected from unprotected expression is to determine whether speech falls into certain categories, such as fighting words, obscenity or child pornography.
Other members of the Court and lower courts have seized upon this language when emphasizing that the First Amendment does not protect all forms of speech. Justice Black did so in his dissenting opinion in Cohen v. California (1971) when he said that a person could be punished for wearing a “Fuck the Draft” jacket into a courthouse. While a narrow majority ruled that an individual’s profane message on a jacket in a courthouse was protected expression, Black contended that Cohen’s profane “Fuck the Draft” message was a form of fighting words. He wrote: “the case [Cohen] appears to be well within the sphere of Chaplinsky v. New Hampshire, where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench.”
The Chaplinsky decision notwithstanding, Justice Murphy’s record on the First Amendment comports with Black’s characterization — that Frank Murphy was a “known champion of First Amendment freedoms.” This “champion” should take his rightful place in the pantheon of free-speech giants.