Communication Currents

Ipse Dixit and the Authoritarian Threat to Free Expression

October 1, 2010
Freedom of Expression

It is commonly acknowledged that the First Amendment exists to impede federal government abridgement, or limitation, of expression, whether that expression is speech, press, religion, assembly or petition. The due process clause of the Fourteenth Amendment provides a similar impediment to abridgement by state and local governments. (See, e.g.,Gitlow v. New York, 268 U.S. 652 (1925)

The impediment to governmental abridgement of expression is not absolute notwithstanding the “make no law” prohibition in the First Amendment. The United States Supreme Court has adopted strategies for interpreting the amendment so as to exclude from constitutional protection certain categories of speech deemed to be of low value (Chaplinsky v. New Hampshire315 U.S. 568 (1942)) or to balance other interests against the protection of expression. (Schenck v. United States, 249 U.S. 47 (1919))

In most cases where the abridgment of expression is based on the content of the expression, the constitutionality of the governmental restriction is to be evaluated by application of a “strict scrutiny” test. (Ashcroft v. ACLU (II)542 U.S. 656 (2004)) “Expressive” conduct is also entitled to First Amendment protection in the same manner that “speech” is protected, and the constitutionality of any governmental restriction will be evaluated with “exacting scrutiny.” (Texas v. Johnson, 491 397 (1989))

Under strict or exacting scrutiny, the government seeking to justify an abridgement of expression must articulate a compelling governmental interest served by the restriction. It is in this articulation of compelling interest that authoritarian ipse dixit poses the greatest threat to free expression.

Ipse dixit is defined in Black’s Law Dictionary (8th ed. 2004) as “Something asserted but not proved.”  In other words, ipse dixit is an unsupported assertion of “fact” or “law” by one in a position of authority.  The Supreme Court of the United States has used the term in 95 opinions beginning with Henderson v. Tennessee (51 U.S. 311 (1850)) and most recently in Stop the Beach Renourishment, Inc. (130 S.Ct.2592) decided in June 2010. The phrase is used in a pejorative manner which leads one to conclude that it really means, “It is so because I say it is so.”

The threat to freedom of expression posed by the practice of accepting ipse dixit for a fact-based justification of a governmental interest advanced to support the abridgement of expression is seen in two cases, one well-known and the other barely known.

The well-known case is Morse v. Frederick (551 U.S. 393 (2007)), or as it is popularly known, “the BONG HiTS FOR JESUS” case.  In that case students at an Alaska high school were released from class to attend the corporate sponsored Olympic Torch Relay that passed in front of the school.  Students standing across the street from the school held a banner emblazoned with the “BONG HiTS” message.  When directed by the school principal to remove the banner one student refused.  In response the banner was confiscated and the student was suspended from school.  The principal’s justification, unsupported by evidence other than her bald statement, was that the message endorsed drug usage contrary to school policy. 

The student sued the principal, and the case ended up before the Supreme Court where a majority accepted without meaningful evaluation the principal’s contention that the banner was a drug advocacy message.  The student testified that his intent was to get on television, and the banner was designed to attract the attention of the television cameras.  In that context it is far more likely that the banner was nonsensical, but acceptance of such a conclusion by a court would no doubt undermine the authority to a school principal to stamp out speech she didn’t like.  Since the Olympic Torch Relay was sponsored by Coca-Cola would a banner reading “COKE FOR JESUS” have been suppressed?   Is that drug or product advocacy?  Would that have been more or less ambiguous that the BONG HiTS message?

The lesser known case involved the arrest of Columbia, SC anti-war activist Brett Bursey during a 2002 Republican campaign appearance by President George W. Bush.  Bursey was at the municipal airport with a sign stating opposition to the invasion of Iraq.  A security zone had been established by the Secret Service, but the zone was not marked except by the presence of law enforcement officers "on the perimeter."  Told to leave the area to go to a remote “Free Speech Zone” nearly a mile distant, Bursey refused.  He was arrested for trespass notwithstanding that the South Carolina Supreme Court had ruled 30 years earlier in a case involving Bursey that one could not be arrested on a public roadway for trespass while engaged in political protest. 

Four months later the trespass charge was dropped and Bursey was charged with a federal offense for failing to leave the security zone. (18 U.S.C. sec. 1752(a)(1)(ii))  Bursey was convicted and his conviction upheld (U.S. v. Bursey, 416 F.3d 301 (4th Cir. 2005)) on grounds that the security zone was where the Secret Service said it was, even in the absence of any barricades or markers to alert the public to the boundaries of the zone.  Clearly the Secret Service agents were operating on the premise that the zone was wherever it was said to be, even in the absence of physical barriers, an act of geographic ipse dixit.

Many reasons are advanced for the governmental restriction of speech, including disruption, drug endorsement interpretations and double-secret, undisclosed boundaries, which can and are used to punish or suppress speech deemed unacceptable by those in positions of authority.  Unfortunately, today’s courts seem all too willing to defer to the unsupported assertions of authoritarians, and expression is suppressed.  

Contrast these contemporary court decisions with the decision of the United States Supreme Court in Edwards v. South Carolina, 83  U.S. 680  (1963).  The petitioners in the case, 187 high school and college students “of the Negro race” had walked to the South Carolina State House from a nearby church.  The police chief testified that the walk was orderly and no pedestrians or vehicles were impeded.  Less than an hour after their arrival at the State House, the students were told by police that they had 15 minutes to disperse.  Rather than disperse the students listened to a speech and sang “The Star Spangled Banner” and other religious and patriotic songs.  After the passage of 15 minutes the students were arrested for breach of the peace.  The students were convicted, and their convictions were upheld by the Supreme Court of South Carolina.  In reversing the convictions, the United States Supreme Court noted its obligation to examine the entire record rather than defer to the judgments and characterizations of local officials. Upon review of the record the court concluded that the students were convicted of an offense “so generalized as to be, in the words of the South Carolina Supreme Court, ‘not susceptible of exact definition.’” 

The 1963 Court stated forcefully, “The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.”  Based on the examples of Morse and Bursey, it seems likely that a court of today would defer to the city manager’s conclusion that the peace was breached because he said it was so, and he was in a position of authority.  Unless the trend is reversed, it is our democracy that will be abridged.

About the author (s)

Jay Bender

University of South Carolina

Reid H. Montgomery Freedom of Information Chair