The Supreme Court’s decision in Bond v. Floyd, 385 U.S. 116 (1966) — that legislators do not forfeit their constitutional rights to speak out on public issues — reaffirmed the principle that the First Amendment protects controversial political speech, even speech critical of the country’s war effort.

State congressman endorsed press release criticizing Vietnam War

In June 1965 Julian Bond was elected to a seat in the Georgia House of Representatives, becoming one of the first six African-Americans elected to that body since Reconstruction. A few months later, the Student Nonviolent Coordinating Committee (SNCC), a civil rights group in which Bond served as the communications director, issued a press release criticizing U.S. involvement in the Vietnam War and the draft law.

Although Bond did not write the release, he endorsed it in a news interview, stating, "I don’t think that I, as a second-class citizen of the United States, have a requirement to support that war.” He described himself as a pacifist who opposed all war, but he did not see that as an issue that should prevent him from taking his oath of office.

State house tried to exclude congressman for his comments

Other members of the Georgia House disagreed, however, and filed challenges to Bond’s right to be seated. He was not permitted to take the oath. After a House hearing, Bond’s colleagues, led by Rep. James “Sloppy” Floyd, voted 184-12 to exclude Bond for his comments, which they argued were not consistent with a legislator’s oath of support for the Constitution.

Bond filed a lawsuit in federal court, contending that the move to expel him because of his political speech violated his First Amendment rights. A divided three-judge district court rejected his claim by a 2-1 vote, reasoning that Bond’s free-speech rights as a citizen were limited to a degree by his taking a seat in the Georgia House of Representatives and the mandatory oath.

Court upheld legislators' right to free speech

Bond appealed to the Supreme Court, which unanimously reversed in an opinion written by Chief Justice Earl Warren. Attorneys for Floyd had contended that Bond’s statements on the war called into question whether he could in good faith take the oath of office.

Warren reasoned that “while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy.”

Warren’s opinion provided broad free-speech protection for legislators’ political speech. “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issue of policy,” Warren wrote. “Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.”

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

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