The Other Free Speech Clause

On a sunny April day at Princeton University, a young man was hanging out, engaging in a bit of political activity, when he was suddenly arrested by campus police. The case got a lot of media coverage, more so when the man was convicted in municipal court of criminal trespass.

The man appealed, and the case was eventually heard by the New Jersey Supreme Court, which ruled unanimously to overturn the trespassing conviction, concluding that the man’s free speech rights had been violated. Afterward, the man returned to campus, vindicated and unimpeded.

Campus protests have ramped up in the last few years, including at Princeton. Thirteen students had their trespassing charges dropped last year for a pro-Palestinian sit-in. Was the young man described above one of these students?

Actually, he wasn’t. The man was twenty-six-year-old Chris Schmid. He had been distributing political flyers related to an upcoming Newark mayoral race. In 1978.

Here’s the cool thing about his case, however: It was not decided on the basis of the First Amendment to the US Constitution. Why? Princeton is a private entity, not a government agency. The First Amendment is a bulwark only against government censorship. Rather, Schmid’s free speech rights were upheld according to the New Jersey Constitution.

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It is a fact often overlooked in free speech debates: States have constitutions, too. All of those constitutions have provisions that protect free speech, a free press, the free exercise of religion, and similar rights.

What’s more, some of those provisions offer greater protection than the corresponding elements of the US Constitution. That was what exonerated Chris Schmid. As Henry Hsiao explains in a recent article,

"Whereas the First Amendment’s language was negatively phrased as a restriction upon governmental interference in expressional channels — 'Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble'— the New Jersey Constitution’s language was positively phrased and individual-oriented. Article I, paragraph 6 stipulated that 'Every person may freely speak, write and publish his sentiments on all subjects . . . No law shall be passed to restrain or abridge the liberty of speech or of the press.'"

(Incidentally, James Madison’s first draft of what became the First Amendment used language similar to New Jersey’s: “The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” Madison introduced this version to Congress on June 8, 1789. By the time of ratification by the states, however—December 15, 1791—it had been softened into its current form.)

New Jersey isn’t the only state whose constitution offers stronger protections. For example, according to the Illinois Constitution,

"All persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense."

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Similarly, the New York Constitution promises that

"Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact."

Oregon’s constitution states that “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right,” which the Oregon Supreme Court in 1987 interpreted as “broader” than the First Amendment. California likewise goes beyond the federal constitution in conferring free speech rights, a fact the US Supreme Court recognized in a 1980 case, Pruneyard Shopping Center v. Robins.

These and other cases centered on state constitutions owe a debt to former Supreme Court Justice William J. Brennan, Jr. An Irish Catholic and former labor leader, Brennan anchored the court’s liberal contingent for thirty-four years, writing the opinions in such landmark cases as Baker v. Carr, New York Times v. Sullivan, and Island Trees v. Pico.

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In 1977, Brennan wrote an article for the Harvard Law Review that would further his image as a civil rights exponent. Entitled “State Constitutions and the Protection of Individual Rights,” the essay observed that “there exists in modern America the necessity for protecting all of us from arbitrary action by governments more powerful and more pervasive than any in our ancestors’ time.” Recognizing that the US Constitution isn’t always up to the task, Brennan advised state courts to rely on their own constitutions for these protections, regardless of what federal courts might do in the same situation. This was permissible because, as Brennan pointed out, “state decisions not only cannot be overturned by, they indeed are not even reviewable by, the Supreme Court of the United States.”

This is one of several advantages of state constitutions for those who seek expanded enforcement of individual rights. Other advantages include the following:

• State constitutions often provide greater access to the courts than their federal counterpart.
• State constitutions are often more easily amended.
• State constitutions specifically enumerate rights—e.g., privacy, debt limits, prohibitions against gifts of public funds—on which the US Constitution is silent.

What Brennan said about “the necessity for protecting all of us from arbitrary action by governments” is just as true today as it was in 1977. In light of that urgency, it is a relief to know that the First Amendment is not the only weapon in the fight.

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