Free Speech/Freedom of Expression
Free Speech/Freedom of Expression
Sections within this essay:Background
Protection of Core Political Speech
Permissible Restrictions on Freedom of Expression
Speech that Incites Illegal or Subversive Activity
Freedom of Expression in Public Schools
Obscenity and Pornography
Regulation of the Internet
State Law Protecting Free Expression
American Bar Association
American Civil Liberties Union (ACLU)
Free Speech Coalition
The First Amendment to the U.S. Constitution provides that "Congress shall make no law … abridging the freedom of speech." The rights protected under the First Amendment are among the freedoms most cherished by Americans. Democratic societies by definition are participatory and deliberative. They are designed to work best when their representative assemblies conduct informed deliberation after voters voice their opinions about particular issues or controversies. But neither elected representatives nor their constituents can fully discharge their democratic responsibilities if they are prevented from freely exchanging their thoughts, theories, suspicions, beliefs, and ideas, or are hindered from gaining access to relevant facts, data, or other kinds of useful information upon which to form their opinions.
The theory underlying the Free Speech Clause of the First Amendment is that truthful and accurate information can only be revealed through robust and uninhibited discourse and that the best way to combat false, deceptive, misleading, inaccurate, or hateful speech is with countervailing speech that ultimately carries the day with a majority of the populace and its elected representatives. Of course, the majority is not always persuaded by countervailing truthful and accurate speech, especially in capitalistic democracies where factions that spend the most money tend to have the loudest and most prevalent voices through radio and television advertisements. Supreme Court Justice Oliver Wendell Holmes articulated an extreme view of the risks underlying freedom of speech when he wrote "that a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell." (Levinson). Similarly, Holmes wrote that freedom of speech does not protect "free thought for those who agree with us, but freedom for the thought that we hate." U.S. v. Schwimmer, 279 U.S.644, 49 S. Ct. 448, 73 L. Ed. 889 (1929).
The Supreme Court has never literally interpreted the Free Speech Clause as an absolute prohibition against all restrictions on individual speech and expression. Instead, the Supreme Court has identified several kinds of expression that the government may regulate to varying degrees without running afoul of the Constitution, including the following: speech that incites illegal or subversive activity; fighting words; symbolic speech; commercial speech; stu-dent speech; and obscenity and pornography. The degree to which the government may regulate a particular kind of expression depends on the nature of the speech, the context in which the speech is made, and its likely impact upon any listeners. However, both state and federal courts will apply the same level of scrutiny to government regulation of free speech under the First Amendment, since the Free Speech Clause has been made applicable to the states via the Fourteenth Amendment's Equal Protection and Due Process Clauses. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 2d 1138 (1925).
Core political speech consists of conduct and words that are intended to directly rally public support for a particular issue, position, or candidate. In one prominent case, the U.S. Supreme Court suggested that core political speech involves any "interactive communication concerning political change." Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). Discussion of public issues and debate on the qualifications of candidates, the Supreme Court concluded, are forms of political expression integral to the system of government established by the federal Constitution. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Thus, circulating handbooks and petitions, posting signs and placards, and making speeches and orations are all forms of core political speech, so long as they in some way address social issues, political positions, political parties, political candidates, government officials, or governmental activities.
The First Amendment elevates core political speech above all other forms of individual expression by prohibiting laws that regulate it unless the laws are narrowly tailored to serve a compelling state interest. Known as "strict scrutiny" analysis, the application of this analysis by a court usually sounds the death knell for the law that is being challenged. This application is especially true when the core political speech is expressed in traditional public forums, such as streets, sidewalks, parks, and other venues that have been traditionally devoted to public assembly and social debate. Strict scrutiny is also applied to laws that regulate core political speech in "designated public forums," which are areas created by the government specifically for the purpose of fostering political discussion. For example, state fair grounds may be considered designated public forums under appropriate circumstances. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S.640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981). In nonpublic forums, however, courts apply a lower level of scrutiny, allowing the government to limit core political speech if the limitation is reasonable and not aimed at silencing the speaker's viewpoint. Examples of nonpublic forums include household mail boxes, military bases, airport terminals, indoor shopping malls, and most private commercial and residential property.
Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States people hand out leaflets imploring neighbors to write Congress, vote on a referendum, or contribute financially to political campaigns or civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures have included draft resistance during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government.
The Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless that "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed.2d 430 (1969). Applying the Brandenburg test, the Supreme Court has ruled that the government may not punish an antiwar protestor who yells "we'll take the f― street later" because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time." Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303(1973). Nor could the government punish someone who, in opposition to the draft during the Vietnam War, proclaimed "if they ever make me carry a rifle, the first man I want in my sights is [the President of the United States] L.B.J." Watts v. U.S., 394 U.S. 705,89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). Such politically charged rhetoric, the Supreme Court held, was more hyperbole and not a threat intended to be acted on at a definite point in time.
"Fighting words" are another form of speech receiving less First Amendment protection than core political speech. Fighting words are those words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" or have a "direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Chaplinski v. New Hampshire, 315 U.S. 568, 62 S. Ct.766, 86 L. Ed. 2d 1031 (1942). Where subversive advocacy exhorts large numbers of people to engage in lawless activity, fighting words are aimed at provoking a specific individual. For example, calling someone a derogatory epithet such as "fascist," "kike," or"faggot" may result in a street brawl, but cannot be accurately described as subversive speech.
Fighting words should also be distinguished from speech that is merely offensive. Unkind and insensitive language is heard everyday at work, on television, and sometimes even at home. But the Supreme Court has ruled that the First Amendment protects speech that merely hurts the feelings of another person. The Court has also underscored the responsibility of listeners to ignore offensive speech. Television channels can be changed, radios can be turned off, and movies can be left unattended. Other situations may require viewers of offensive expressions simply to avert their eyes. In one noteworthy case, the Court ruled that a young man had the right to wear a jacket in a state courthouse with the aphorism "F― the Draft" emblazoned across the back because persons in attendance could look away if they were offended. Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29L. Ed. 2d 284 (1971). "One man's vulgarity," the Court said, "is another's lyric," and the words chosen in this case conveyed a stronger message than would a subdued variation such as "Resist the Draft."
Not all forms of self-expression involve words. The nod of a head, the wave of a hand, and the wink of an eye each communicate something without resort to language. Other forms of non-verbal expression communicate powerful symbolic messages. The television image of the defenseless Chinese student who faced down a line of tanks during the 1989 democracy protests near Tiananmen Square in China is one example of symbolic expression that will be forever seared into the memories of viewers. The picture of three New York City firefighters raising the American flag amid the rubble and ruins at the World Trade Center following the terrorist attacks of September 11, 2001, is another powerful example of symbolic expression.
The First Amendment does not protect all symbolic expression. If an individual intends to communicate a specific message by symbolic expression under circumstances in which the audience is likely to understand its meaning, the government may not regulate that expression unless the regulation serves a significant societal interest unrelated to suppressing the speaker's message. Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). Applying this standard, the U.S. Supreme Court reversed the conviction of a person who burned the American flag in protest over the policies of President Ronald Reagan (Texas v. Johnson, 491 U.S. 397,109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)), and invalidated the suspension of a high school student who wore a black arm-band in protest of the Vietnam War (Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed.2d 731 (1969)). To the contrary, however, the Court has upheld federal legislation that prohibited the burning of draft cards. United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). Of the governmental interests asserted in these three cases, maintaining the integrity of the selective service system was the only interest of sufficient weight to overcome the First Amendment right to engage in evocative symbolic expression.
Commercial speech, such as advertising, receives more First Amendment protection than subversive advocacy, fighting words, and obscenity, but less protection than core political speech. Advertising is afforded more protection than these other categories of expression because of consumers' interest in the free flow of market information. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed.2d 346 (1976). In a free enterprise system, consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served, for instance, by the free exchange of obscenity.
At the same time, commercial speech deserves less protection than core political speech because society has a greater interest in receiving accurate commercial information and may be less savvy in flushing out false and deceptive ads. The average citizen is more conditioned, the Supreme Court has suggested, to discount the words of a politician than the words of a Fortune 500 company. The average citizen may also be more vulnerable to misleading commercial advertising. Even during an election year, most people view more commercial advertisements than political and rely on those advertisements when purchasing the clothes they wear, the food they eat, and the automobiles they drive. Thus, the First Amendment permits governmental regulation of commercial speech so long as the government's interest in doing so is substantial (e.g., the prohibition of false, deceptive, and misleading advertisements), the regulations directly advance the government's asserted interest, and the regulations are no more extensive than necessary to serve that interest.
In 1969 the Supreme Court articulated one of its most cited First Amendment pronouncements when it said that "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733,21 L. Ed. 2d 731 (1969). Despite the frequency in which other courts have quoted this passage in addressing the free speech rights of public school students, as a principle of First Amendment law the passage represents somewhat of an overstatement. The First Amendment does not afford public school student the same liberty to express themselves as they would otherwise enjoy if they were adults speaking their minds off school grounds. In fact, the Supreme Court has since qualified this principle by stating that a public school student's right to free speech is "not automatically co-extensive with the rights of adults in other settings." Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 308 S. Ct. 562, 98 L. Ed. 2d592 (1988). In Hazelwood, the Court held that educators may control the style and content of school-sponsored publications, theatrical productions, and other expressive conduct, so long as the educator's actions are reasonably related to legitimate pedagogical concerns. In short, student speech that is not consistent with a school's educational mission can be censored.
Applying the standard set forth in Hazelwood, the U.S. Court of Appeals for the Sixth Circuit up held the disqualification of a candidate for student council president after he made discourteous remarks about an assistant principal during a campaign speech at a school-sponsored assembly. Poling v. Murphy, 872F.2d 757 (6th Cir. 1989). "Civility is a legitimate pedagogical concern," the court declared. Even state universities may adopt and enforce reasonable, nondiscriminatory regulations as to the time, place, and manner of student expressions. Bayless v. Martine, 430 F.2d 873 (5th Cir. 1970). However, a state university's refusal to recognize a gay student services organization violated the First Amendment because it denied the students' right to freely associate with political organizations of their choosing. Gay Student Services v. Texas A&M University, 737 F.2d 1317 (5th Cir. 1984).
Artful depictions of human sexuality highlight the tensions between lust and love, desire and commitment, fantasy and reality. Vulgar depictions can degrade sexuality and dehumanize the participants, replacing stories about love with stories about deviance, abuse, molestation, and pedophilia. State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and discouraging unacceptable depictions. Libidinous books such as Lady Chatterley's Lover and pornographic movies such as Deep Throat have rankled communities struggling to determine whether such materials should be censored as immoral or protected as works of art.
The Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating, which is protected. Justice Potter Stewart once admitted that he could not define obscenity, but he quipped, "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676,1683, 12 L. Ed. 2d 793 (1964). Nonetheless, the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that the material's predominant theme appeals to a "prurient" interest; (2) the material depicts or describes sexual activity in a "patently offensive" manner; and (3) the material, when taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S.15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
Although the Supreme Court has failed to clearly define words and phrases such as "prurient," "patently offensive," and "serious artistic value," literary works that deal with sexually related material are protected by the First Amendment, as are magazines like Playboy and Penthouse. More difficult questions are presented in the area of adult cinema. Courts generally distinguish hard-core pornography that graphically depicts copulation and oral sex from soft-core pornography that displays nudity and human sexuality short of these "ultimate sex acts." In close cases falling somewhere in the grey areas of pornography, outcomes may turn on the "community standards" applied by the jury in a particular locale. Thus, pornography that could be prohibited as obscene in a small rural community may receive First Amendment protection in Times Square.
Although the Internet has increased the amount of information available to the average person by many times, it has also become the medium for the transmission of information that some deem harmful. This is particularly true in the case of child pornography. Congress and several state legislatures have attempted to enact legislation that would ban the transmission of this type of pornography. For instance, the Child Pornography Prevention Act of1996, Pub. L. No. 104-208, 110 Stat. 3009, banned the electronic transmission of depictions of pornographic images of children, including computer-generated images.
Groups have successfully opposed these laws on the grounds that they are overly broad and infringe upon First Amendment rights to free speech. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), the U.S. Supreme Court struck down the Child Pornography Prevention Act. Although the statute banned pictures of actual children engaged in sexual acts, it is also applied to images that appeared to be of a minor engaged in such an act. Because the statute prohibited protected speech (i.e., images that did not involve children) in addition to unprotected speech (i.e., pictures of actual children), the Court found that the statute was unconstitutional.
Other statutes related to the use of the Internet have withstood constitutional challenges. In United States v. American Library Association, Inc., 539U.S. 194, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003), the Court reviewed the Children's Internet Protection Act, Pub. L. No. 106-554, 114 Stat. 2763 (2000), which requires libraries that receive public funds to install filters on their computers so that neither adults nor children can access inappropriate materials. Despite arguments that the filtering software could effectively block access to constitutionally protected speech, the Court held that the statute was a valid exercise of Congress' spending power. The Court noted that the use of filtering software was no different in a library setting than was the selection of books and other physical items and that patrons could request that the filtering software be disabled.
The federal Constitution establishes the minimum amount of freedom that must be afforded to individuals under the First Amendment. State constitutions may offer their residents more freedom of speech than is offered under the federal Constitution, but not less. Below is a sampling of state court cases decided at least in part based on their own state's constitutional provisions governing freedom of speech and expression.
ARKANSAS: A state statute penalizing night-riding did not abridge the freedom of speech guaranteed by the state or federal constitutions. Johnson v. State, 126 S.W.2d 289 (Ark. 1939).
ALABAMA: A city's ordinance forbidding a business from permitting consumption of alcoholic beverages and nude dancing at the same time regulated conduct and not individual expression; thus, the ordinance did not violate the state's constitutional right to freedom of speech. Ranch House, Inc. v. City of Anniston, 678 So. 2d 745 (Ala. 1996).
ARIZONA: The state's statutory ban on targeted residential picketing was a valid accommodation for the right to freedom of speech explicitly protected by the state constitution. State v. Baldwin, 908 P.2d483 (Ariz. App. 1995).
CALIFORNIA: The free speech clause in the state constitution contains a state action limitation and, thus, that clause only protects against government regulation of free speech and not private regulation thereof. Golden Gateway Center v. Golden Gateway Tenants Ass'n, 29 P.3d 797 (Cal. 2001).
ILLINOIS: The defendants' arrest for protesting on the premises of an abortion clinic did not violate the defendants' state constitutional right of free speech, since the clinic's policy required removal of all demonstrators from the clinic's premises regardless of their beliefs, and there was no indication that the clinic's policy of excluding demonstrators was ever applied in a discriminatory manner. People v. Yutt, 597 N.E.2d 208 (Ill. App. 1992).
MAINE: The state's statute allowing the State Employees Association to pay 80% of the collective bargaining unit dues for association members, while contributing nothing toward the dues of nonmembers, violated neither the state nor federal guarantees to freedom of speech. Opinion of the Justices, 401 A.2d 135 (Me. 1979).
MARYLAND: A county zoning ordinance for adult entertainment businesses violated the federal and state constitutions because the ordinance failed to leave open adequate alternative channels of communication. The land in the county that was available for adult businesses was less than one-tenth of one percent of the land available for commercial enterprises in the county. Pack Shack, Inc. v. Howard County, 832 A.2d 170 (Md. 2003).
MASSACHUSETTS: A conviction for threatening to commit a crime does not violate a defendant's free speech rights under the federal or state constitution if the evidence is sufficient to satisfy each element of the crime, since those elements are defined in a way that prevents a conviction based on protected speech. Commonwealth v. Sholley, 739 N.E.2d 236 (Mass. 2000).
MICHIGAN: A state administrative rule prohibiting simulated sexual conduct in licensed liquor establishments did not violate the state's constitutional provision guaranteeing free speech. Kotmar, Ltd. v. Liquor Control Comm'n, 525 N.W.2d 921 (Mich. App. 1994).
MINNESOTA: Differences in terminology between the free speech protection in the federal Constitution and the free speech protection under the state constitution did not support a conclusion that the state constitutional protection should be more broadly applied than the federal. State v. Wicklund, 589 N.W.2d 793 (Minn. 1999).
NEW JERSEY: Although the right to free speech under the state constitution is broader than the corresponding right under the federal Constitution, nothing in the state constitution gives a person the right to videotape public proceedings. Tarus v. Borough of Pine Hill, 886 A.2d 1056 (N.J. Super. 2005).
NEW YORK: A state statute banning the televising of any court proceeding in which the testimony of a witness by subpoena is or may be taken denies free speech guarantee by the state and federal constitutions. Coleman v. O'Shea, 707 N.Y.S. 308 (N.Y. Sup. Ct. 2000).
OHIO: The state constitution's separate and independent guarantee of free speech applies to defamatory statements only if those statements are matters of opinion, and citizens who abuse their constitutional rights to freely express their sentiments by uttering defamatory statements of fact will remain liable for the abuse of that right. Wampler v. Higgins, 752 N.E.2d 962 (Ohio 2001).
OREGON: A statute prohibiting a "live public show" during which participants engage in "sexual conduct" violated rights to freedom of expression under the state constitution. However, a statute prohibiting the promotion of prostitution was not unconstitutional. State v. Ciancanelli, 121 P.3d 613 (Ore. 2005).
PENNSYLVANIA: Regulations that barred nude dancing in public places violated both the federal and state constitutions. Pap's A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002).
TEXAS: The state constitution offers greater free speech protection than the federal Constitution for political speech, but this greater protection does not extend to exotic dancing businesses. Society has a lesser interest in protecting material on the borderline between pornography and artistic expression than it does in protecting the free dissemination of ideas of social and political significance. Kaczmarek v. State, 986 S.W.2d 287 (Tex. App. 1999).
WASHINGTON: Nude dancing receives constitutional protection under the free speech guarantees of the First Amendment and the state constitution, although nudity itself is subject to the police powers of the state. DCR, Inc. v. Pierce County, 964 P.2d 380 (Wash. App. 1998).
American Jurisprudence. Thomson/West 2005.
Fan Letters: The Correspondence of Holmes and Frankfurter. Levinson, Sanford, 75 Tex. L. Rev. 1471, 1997.
First Amendment Law in a Nutshell. Barron, Jerome A. and C. Thomas Dienes, Thomson/West, 2004.
West's Encyclopedia of American Law, 2nd Edition. Thomson/Gale, 2004.
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