Freedom of Speech

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FREEDOM OF SPEECH

Freedom of speech is guaranteed in the American Constitution by the first amendment. Adopted in 1791 as the first provision of the bill of rights, the First Amendment reads (excluding the clauses on religion): "Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Although the provision names four specific rights—freedom of speech, freedom of the press, freedom of assembly, and freedom of petition—the several guarantees have never been clearly differentiated; rather the First Amendment has been construed as guaranteeing a composite right to freedom of expression. The term "freedom of speech," therefore, in popular usuage as well as in legal doctrine, has been considered roughly coextensive with the whole of the First Amendment.

The precise intentions of the framers of the First Amendment have never been entirely clear. The debates in Congress when the amendment was proposed do not throw much light upon the subject. The right to freedom of speech derives from English law and tradition. And it is agreed that the English law of the time, following the lapse of the censorship laws at the end of the seventeenth century, did not authorize advance censorship of publication. The English law of seditious libel, however, did provide punishment, after publication, for speech that criticized the government, its policies or its officials, or tended to bring them into contempt or disrepute. These features of English law were under severe attack, both in England and in the American colonies, but whether the First Amendment was meant to abolish or change them has been a matter of dispute. Similarly, the application of the First Amendment to other aspects of free speech, such as civil libel, obscenity, and the like, remained obscure.

Passage of the alien and sedition acts in 1798, which incorporated much of the English law of seditious libel, stimulated public discussion of the meaning of the First Amendment. The constitutional issues, however, never reached the Supreme Court. Nor, despite widespread suppression of speech at certain times in our history, such as took place during the abolitionist movement, the civil war, and the beginnings of the labor movement, did the Supreme Court have or take the occasion to address in any major way the development of First Amendment doctrine. The reason for this failure of the constitutional guarantee to be translated into legal action seems to lie partly in the fact that the Bill of Rights had been construed by the Court to apply only to action of the federal government, not to state or local governments; partly in the fact that, insofar as suppression emanated from federal sources, it was the executive not the legislature that was involved; and partly in the fact that the role of the courts in protecting civil liberties had not matured to the point it has reached today.

In any event this state of affairs ended at the time of world war i. Legislation enacted by Congress in 1917 and 1918, designed to prohibit interference with the war effort, raised clear-cut issues under the First Amendment. Beginning in 1919, a series of cases challenging the wartime legislation came before the Supreme Court. These were followed by cases arising out of the Red scare of the early 1920s. In 1925, in Gitlow v. United States, the Court accepted the argument that the First Amendment was applicable to the state and local governments as a "liberty" that could not be denied without due process of law under the fourteenth amendment. It also became clear that, while the First Amendment literally refers only to "Congress," its provisions extend not only to the legislature but to the executive and judicial branches of government as well. As the First Amendment has come to be applied to more and newer problems growing out of the operation of a modern technological society, there has developed an extensive network of principles, legal rules, implementing decisions, and institutional practices which expand and refine the constitutional guarantee.

The fundamental values underlying the concept of freedom of speech, and the functions that principle serves in a democratic society, are widely accepted. They have been summarized in the following form:

First, freedom of speech is essential to the development of the individual personality. The right to express oneself and to communicate with others is central to the realization of one's character and potentiality as a human being. Conversely, suppression of thought or opinion is an affront to a person's dignity and integrity. In this respect freedom of speech is an end in itself, not simply an instrument to attain other ends. As such it is not necessarily subordinate to other goals of the society.

Second, freedom of speech is vital to the attainment and advancement of knowledge. As john stuart mill pointed out, an enlightened judgment is possible only if one is willing to consider all facts and ideas, from whatever source, and to test one's conclusion against opposing views. Even speech that conveys false information or maligns ideas has value, for it compels us to retest and rethink accepted positions and thereby promotes greater understanding. From this function of free speech it follows that the right to express oneself does not depend upon whether society judges the communication to be true or false, good or bad, socially useful or harmful. All points of view, even a minority of one, are entitled to be heard. The market-place of ideas should be open to all sellers and all buyers.

Third, freedom of speech is a necessary part of our system of self-government. alexander meiklejohn, the leading exponent of this view of the First Amendment, stressed that under our Constitution, sovereignty resides in the people; in other words, the people are the masters and the government is their servant. If the people are to perform their role as sovereign and instruct their government, they must have access to all information, ideas, and points of view. This right of free speech is crucial not only in determining policy but in checking the government in its implementation of policy. The implication of this position is that the government has no authority to determine what may be said or heard by the citizens of the community. The servant cannot tell the master how to make up its mind.

Fourth, freedom of speech is vital to the process of peaceful social change. It allows ideas to be tested in advance before action is taken, it legitimizes the decision reached, and it permits adaptation to new conditions without the use of force. It does not eliminate conflict in a society, but it does direct conflict into more rational, less violent, channels. From this it follows, in the words of Justice william j. brennan in new york times v. sullivan (1964), that speech will often be "uninhibited, robust, and wide-open."

There is also general agreement that speech is entitled to special protection against abridgment by the state. Freedom of thought and communication are central to any system of individual rights. Most other rights of the person against the collective flow from and are dependent upon that source. Moreover, speech is considered to have less harmful effects upon the community—to be less coercive—than other forms of conduct. And, as a general proposition, the state possesses sufficient power to achieve social goals without suppressing beliefs, opinions, or communication of ideas. Hence, in constitutional terms, freedom of speech occupies a "preferred position."

One further background factor should be noted. Toleration of the speech of others does not come easily to many people, especially those in positions of power. As Justice oliver wendell holmes remarked in abrams v. united states (1919), "If you have no doubt of your premises or your powers and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition." Hence the pressures leading to suppression of speech are widespread and powerful in our society. The mechanisms for protecting freedom of speech, therefore, must rely heavily upon an independent judiciary, standing somewhat outside the fray, and upon the creation of legal doctrines that are precise and realistic.

The principal controversies that have engaged our system of freedom of speech have concerned the formulation of these implementing rules. In general the issues have centered on two basic questions. The first is what kind of conduct is to be considered "speech" entitled to special protection under the First Amendment. The second concerns what degree of protection, or encouragement, must be given that speech under the constitutional mandate.

As to the first question—the issue of coverage—it has been argued from time to time that certain categories of speech are totally outside the purview of the First Amendment. Thus it has been contended that totalitarian and racist groups should not be permitted to advance antidemocratic ideas. The argument has been that political groups that would destroy democratic institutions if they came to power should not be entitled to take advantage of these institutions in order to promote their cause; only those who adhere to the rules of the game should be allowed to participate. Similarly it has been urged that racist speech violates the dignity and integrity of fellow persons in the community, performs no social function, and should not be tolerated in a civilized society dedicated to human rights.

While this position has been strongly urged it has not prevailed in the United States. For both theoretical and practical reasons the concept of freedom of speech has been interpreted to mean that all persons should be allowed to express their beliefs and opinions regardless of how obnoxious or "fraught with death" those ideas may be. As a matter of principle, all ideas must be open to challenge; even totalitarian and racist speech serves a useful purpose in forcing a society to defend and thereby better comprehend its own basic values. Moreover, groups that promote totalitarian or racist ideas do not operate in a political vacuum. Their speech reflects fears, grievances, or other conditions which society should be aware of and in some cases take action to deal with. Suppression of such speech simply increases hostility, diverts attention from underlying problems, and ultimately weakens the society.

In practical terms, experience has shown that it is difficult or impossible to suppress any set of ideas without endangering the whole fabric of free speech. The dividing line between totalitarian and racist speech, on the one hand, and "acceptable" speech, on the other, cannot be clearly drawn and thus is open to manipulation. The apparatus necessary to suppress a political movement—involving government investigation into beliefs and opinions, the compiling of dossiers, the employment of agents and informers—inevitably creates an atmosphere damaging freedom of all speech. Frequently actions ostensibly directed against the outlawed group are merely a pretext for harassment of unwanted political opposition. Most important, once the dike has been broken all unorthodox or minority opinion is in danger. The only safe course is to afford protection to all who wish to speak.

The Supreme Court, accepting the prevailing view, has consistently taken the position that antidemocratic forms of speech are within the coverage of the First Amendment. Thus, while upholding the conviction of the Communist party leaders under the Smith Act for advocating overthrow of the government by force and violence in dennis v. united states (1951), the Court never suggested that the defendants were not entitled to the protection of the First Amendment. Likewise in brandenburg v. ohio (1969) racist speech by members of the Ku Klux Klan was given full First Amendment protection. The viewpoint taken by the Court was perhaps most dramatically formulated by Justice Holmes when he said in Gitlow v. New York: "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the country, the only meaning of free speech is that they should be given their chance and have their way."

It has also been contended that the coverage of the First Amendment should be limited to speech that relates to "political issues." Meiklejohn, who emphasized the role of the First Amendment in the process of self-government, advocated this interpretation, although he ultimately reached a broad definition of "political speech." Other commentators, arguing for a similar limitation, have adopted a far more restrictive concept of "political speech." The position has not, however, been accepted. For one thing, the proposed restriction has no inner logic; virtually all speech has political overtones or ramifications. In any event, there is no convincing reason for restricting the coverage of the First Amendment in this way. Speech concerned with literature, music, art, science, entertainment, ethics, and a host of other matters serves the functions sought by the First Amendment and should be equally entitled to its protection. The Supreme Court has consistently so held.

Other, narrower, categories of speech have also been said to be excluded from First Amendment coverage. In chaplinsky v. new hampshire (1942) the Supreme Court observed that restrictions on speech that was obscene, profane, libelous, or involved fighting words had "never been thought to raise any Constitutional problem." But this obiter dictum has been eroded in the course of time. Obscenity is still, in theory, excluded from First Amendment protection; but in formulating the definition of "obscenity" the Court has brought constitutional considerations back into the decision. The exception for profanity has been disregarded. The dictum concerning libel has been expressly overruled. And the "fighting words" exemption, which has been narrowly construed to apply only to face-to-face encounters, turns more on the proposition that "fighting words" are not really speech at all than upon a concept of exclusion from First Amendment protection. Thus virtually all conduct that can be considered "speech" falls within the coverage of the First Amendment.

There are certain areas of speech where, although the First Amendment is applicable, the governing rules afford somewhat less protection than in the case of speech generally. These areas include speech in military institutions, which are not structured according to democratic principles, and speech by or addressed to children, who are "not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." commercial speech, that is, speech concerned solely with buying or selling goods or services for a profit, was at one time excluded from First Amendment protection. It is now covered by the First Amendment but is entitled to less stringent safeguards than noncommercial speech.

The most controversial aspect of the coverage question concerns not whether conduct that is recognized as speech is exempted from First Amendment protection but what conduct is to be considered speech and what is to be held non-speech, or "action," and hence not protected by the First Amendment. The resolution of this problem poses obvious difficulties. Clearly some verbal conduct, such as words exchanged in planning a criminal conspiracy, does not constitute "speech" within the intention of the First Amendment. Likewise some nonverbal conduct, such as operating a printing press, is an integral part of the speech which it is the purpose of the First Amendment to protect. Some conduct, such as picketing, combines elements of speech and action.

Two approaches to this dilemma are possible. One is to attempt to define "speech" or "action" in light of the values and functions served by the First Amendment. The other is to abandon any effort at a sharp definition of "speech" and to hold that any conduct containing an "expressive element" is within the coverage of the First Amendment. The advantage of the first approach is that it allows the development of more clear-cut rules for protecting conduct found to be "speech," that is, all "speech" or most "speech" could be fully protected without the need for devising elaborate qualifications difficult to apply. The advantage of the second approach is that it avoids the necessity of making refined, and in some cases unpersuasive, distinctions between "speech" and "action." The Supreme Court has, on the whole, tended to follow the second path of analysis. However, in the overwhelming majority of cases where First Amendment protection is invoked, there is no serious question but that the conduct involved is properly classified as "speech."

The second major problem in interpreting and applying the First Amendment is the determination of what degree of protection from government interference, or encouragement by government, is to be afforded "speech." Most of the controversy over the meaning of the First Amendment has involved this issue. The Supreme Court has varied its approach from time to time and no consistent or comprehensive theory has emerged. The question arises in a great variety of situations, and only a brief summary of some of the principal results is possible.

The starting point is that, as a general proposition, the government cannot prohibit or interfere with speech because it objects to the content of the communication. Legitimate government interests must be achieved by methods other than the control of speech. Thus speech that is critical of the government or its officials, that interferes with government efficiency, that makes the attainment of consensus in the society more difficult, that urges radical change, or that affects similar societal interests cannot be abridged.

Somewhat less stringent rules have been applied where the speech is of such a character as to lead to concern that it will provoke violence or other violation of a valid law. Many of the Supreme Court decisions have involved issues of this nature, and a series of legal doctrines emerged. In the earlier cases, mostly growing out of legislation designed to prevent interference with the conduct of World War I or to suppress emerging radical political parties, the Court adopted a bad tendency test under which any speech that had a tendency to cause a violation of law could be punished. Such a test, of course, gives very little protection to nonconforming speech. Subsequently, on the initiative of Justices Holmes and louis d. brandeis, the Court accepted the clear and present danger test. Under this doctrine speech could be penalized only when it created a clear and present danger of some significant evil that the government had a right to prevent. In some cases the Court has used an ad hoc balancing test, by which the interest in freedom of speech is balanced against the social interest in maintaining order. Ultimately the Court appears to have settled upon the so-called Brandenburg test. "[T]he constitutional guarantees of free speech and free press," the Court said in Brandenburg v. Ohio, "do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." An approach which attempts to separate "speech" from "action" and gives full protection to speech has never appealed to a majority of the Justices. But the Court has progressively tightened the originally loose restrictions on the government's power to punish militant political rhetoric.

In recent years the question has been posed in various forms whether or not speech can be curtailed where it may cause injury to national security. The term "national security" has never been precisely defined and could of course include virtually every aspect of national life. Generally speaking it is clear that the usual First Amendment principles apply in national security cases; the society must seek to achieve national security by methods that do not abridge freedom of speech. Nevertheless, qualifications of the general rule have been urged with increasing vigor. The chief issues have involved publication of information alleged to jeopardize national security and the conduct of intelligence agencies seeking to acquire information relating to national security matters.

The Supreme Court in new york times v. united states (1971) (the Pentagon Papers case), a landmark decision in this area, rejected attempts by the government to enjoin the New York Times and the Washington Post from publishing a secret classified history of the vietnam war obtained illicitly by a former government employee, despite government claims that publication would cause "grave and irreparable injury" to the national security. The decision rested on the ground that the government had not met the "heavy burden of showing justification for the imposition of [a prior ] restraint." The majority were unable to agree, however, upon a single theory of the case. Three Justices thought that an injunction against publication of information should never, or virtually never, be allowed, but others, including the dissenters, would have accepted less rigorous standards. In United States v. United States District Court (1972), another critical decision in the national security area, the Court ruled that government intelligence agencies were bound to adhere to constitutional limitations (in that case the fourth amendment) in gathering information pertaining to national security, but it expressed no opinion as to "the issues which may be involved with respect to activities of foreign powers or their agents." The degree to which the Supreme Court will accept claims to national security as ground for qualifying First Amendment rights thus remains uncertain.

Cases where the exercise of free-speech rights runs into conflict with other social or individual interests frequently come before the Supreme Court. Interests invoked as ground for limiting speech have included the right of an accused person to obtain a fair trial free from prejudice caused by adverse newspaper publicity; the interest of society in assuring fair elections through regulation of contributions and expenditures in political campaigns; the patriotic interest of the community in protecting the American flag against desecration by political dissenters; the aesthetic interests of the public in maintaining certain areas free from unsightly billboards; and many others. Where the countervailing interest is an appealing one the Court has tended to apply a balancing test: individual and social interests in freedom of speech are balanced against the opposing interests at stake. Likewise, where a government regulation is ostensibly directed at some other objective but has the effect of restricting speech, as in the case of government loyalty-security programs or legislative investigations, the balancing test is usually employed.

The balancing test has come to assume various forms. When most protective of free speech it requires that the government (1) has the burden of justifying any restriction on speech (2) by demonstrating "compelling" reasons and (3) showing that less intrusive means for advancing the government interest are not available. On the other hand, in some cases the balancing test is applied without giving any special weight to First Amendment considerations. The consequence of using a balancing test is that the out-come in any particular case is difficult to predict. Thus in buckley v. valeo (1976) the Supreme Court held, in substance, that limitations on the amount of funds that can be contributed to a candidate in a political campaign are permissible but limitations on expenditures are not. Moreover, the balancing test is such a loose standard that, in times of stress, it might afford very little protection to freedom of speech. Thus far, however, the balances struck by the Court have given a substantial degree of support to free-speech rights.

Special rules for measuring the protection accorded speech have evolved in several areas. With respect to laws punishing obscene publications the Supreme Court, as noted above, still adheres to the theoretical position that obscenity is not covered by the First Amendment but it does take constitutional factors into account in determining whether or not a particular publication is obscene. As set forth in miller v. california (1972), the current definition of obscenity is "(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." In practical application, as nearly as it can be articulated, the Miller test allows regulation only of "hard-core pornography."

The Supreme Court has also imposed substantive limitations upon actions for libel. Criminal libel laws have been narrowly construed and, although a group libel law was upheld in beauharnais v. illinois (1952), subsequent developments have cast doubt upon the present validity of that decision. In the field of civil libel the Supreme Court held, in New York Times v. Sullivan, that public officials could maintain a suit for libel only when they can establish that a damaging statement about them was not only false but was made with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." Later the "actual malice" rule was extended to "public figures." As to others, namely "private individuals," the Court has held that the state or federal government could adopt any rule respecting libel so long as it required at least a showing of negligence on the part of the defendant. Although the Court in recent years has tended to take a narrow view of who is a "public figure," and the costs of defending libel actions frequently operate as a restraint upon speech, the curtailment of public discussion through libel laws has been somewhat held in check.

Constitutional doctrine for reconciling the right to freedom of speech with the right of privacy remains unformed. In most respects the two constitutional rights do not clash but rather supplement each other. Conflict may arise, however, at several points, such as where a communication contains information that is true, and hence is not covered by the libel laws, but relates to the intimate details of an individual's personal life that are not relevant to any issue of public concern. The scope of the constitutional right of privacy has never been clearly delineated. Nor has the Supreme Court ever held that the right of privacy prevails over the right to freedom of speech. Nevertheless the issue is a recurring one and sooner or later an accommodation between the two constitutional rights will have to be formulated.

The degree of protection afforded speech under the First Amendment may also hinge on various other factors. Where the physical facilities for communication are limited, and the government is therefore forced to allocate available facilities among those seeking to use them, the government has the power, indeed the obligation, to lay down certain conditions in order to assure that the scarce facilities will be used in the public interest. This is the situation with respect to radio and television broadcasting where, at least at the present time, the number of broadcast channels is limited. On this theory, government regulations such as the fairness doctrine, requiring that broadcasting stations give adequate coverage to public issues and that such coverage be fair in accurately reflecting opposing views, have been upheld by the Supreme Court. Such regulatory powers, however, extend only to what might be termed a "macro level" of intervention. The government may require that a broadcasting station devote a certain proportion of its time to public interest programs, but it may not censor or determine the content of particular programs, that is, it may not exercise control at the "micro level."

Likewise special considerations enter when a person seeking to exercise rights to freedom of speech is an employee of the government or is confined in a government institution such as a mental hospital or a prison. Here the relationship of the individual to the government is somewhat different from the relationship of the ordinary citizen to the general community; the goals and interests of the particular institution involved are entitled to more immediate recognition. The Supreme Court has dealt with these issues by applying a balancing test, but the weights have been cast largely on the government side of the scales.

One further aspect of government attempts to regulate the content of speech should be noted. The letter and spirit of the equal protection clause have had an important bearing upon the right to freedom of speech. The equal protection element guarantees the universality of the rules protecting the right to speak. It means that the government cannot differentiate, at least without a compelling reason, between speakers on the basis of the content of their communications. Hence if the government allows a patriotic organization to march down the main street of town it must grant equal opportunity to unpopular or radical organizations. If it grants the use of a public building for a meeting to a group of one political persuasion it must grant the same use to all political groups. This combination of the First Amendment and the equal protection clause thus helps to assure that unorthodox speech will receive the same treatment as conventional speech.

Apart from attempts to control the content of speech, government regulation has also dealt with various issues in the administration of the free speech system. Thus the requirement of a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, clearly constitutes a justifiable regulation. Likewise, a municipal ordinance may legitimately keep soundtrucks from operating in a residential area during certain hours of the night. It is frequently said that "time, place, and manner" restrictions on speech are permissible so long as they are "reasonable." Such generalizations, however, are overbroad. In many situations, "time, place, and manner" restrictions can be used to curtail freedom of speech to the same degree as content regulations. And to accord them all validity would be inconsistent with the basic premise that the right of free speech is entitled to a preferential position among competing interests. A more precise statement of the applicable legal doctrine would be to say that administrative regulations dealing with physical incompatibilities between the exercise of free speech rights and other interests are permissible. Thus government could validly allocate use of the streets between those seeking to hold a demonstration and those using the streets for passage. And the physical intrusion of noises from soundtrucks would also be subject to control. The principle for resolving such physical conflicts is not mere "reasonableness" but a fair accommodation between the competing interests.

Other legal doctrines play an important role in maintaining the system of freedom of speech. Thus the courts have held that the rules against undue vagueness or overbreadth in legislation or administrative regulation will be applied with special rigor where First Amendment rights are affected. And the prohibition in the Fourth Amendment against unreasonable searches and seizures is given added force when invoked to protect freedom of speech. Perhaps the most significant supportive doctrine of this nature is the rule against prior restraint. Attempts by the government to prevent publication in advance, through a system of censorship, an injunction, or similar measures, are presumptively invalid and rarely allowed. Thus the silencing of speech before it is uttered—a particularly effective form of suppression—is normally not available as a method of control.

The constitutional doctrines thus far discussed have been of a negative character in that they have been directed against government interference with freedom of speech. In recent years, however, increasing attention has been given to questions relating to the affirmative side of the constitutional guarantee: to what extent does the First Amendment allow or require the government to encourage or promote a more effective system of free speech? These issues are important because of growing distortions within the system. More and more, as the mass media have become concentrated in fewer hands and have tended to express a single economic, social, and political point of view, the concept of a marketplace of diverse ideas has failed to conform to original expectations. The problems are difficult to solve because they involve using the government to expand freedom of speech while at the same time continuing to prohibit the government from controlling or inhibiting speech.

Not only does government itself engage in speech, for example, through schools and libraries and the statements of officials (see government speech), but government also promotes the freedom of speech in many ways. One of the most significant involves assuring access to the means of communication. The courts have gone some distance in recognizing the obligation of government to make facilities for communication available. Thus the courts have held that the streets, parks, and other public places must be open for meetings, parades, demonstrations, canvassing, and similar activities. Other public facilities have likewise been considered public forums and available, to the extent compatible with other uses, for free speech purposes. At one time the Supreme Court ruled that shopping centers and malls, privately owned but open to the public, could not exclude persons seeking to engage in speech activities. However, the Court later withdrew from this position. A very limited right of access to radio and television, justified by the scarcity principle, has been upheld. On the other hand, the Court has refused to allow a right of access to the columns of privately owned newspapers, on the grounds that intervention of this nature would destroy the independence of the publisher. Expansion of a right of access, without jeopardizing the rights of those already using the facilities of communication, remains a critical problem, the solution to which appears to depend more upon legislative than judicial action.

Affirmative governmental promotion of speech also takes the form of subsidies. Government contributions to educational, cultural, research, and other speech activities are widespread. Most of these subsidies have gone unchallenged in the courts. In Buckley v. Valeo, however, the Supreme Court did consider the constitutionality of legislation providing for the public financing of presidential election campaigns, upholding that measure upon the grounds that the use of "public money to facilitate and enlarge public discussion … furthers, not abridges, pertinent First Amendment values." The decision apparently accepts the basic validity of all government funding that can be found to promote public discussion. Nevertheless certain limitations on the power of government to finance nongovernment speech would seem to be clear. Thus government subsidy of religious speech would certainly be prohibited under the religion clauses of the First Amendment. And although the government would be free to choose at the "macro" level of intervention, that is, to determine the nature of the speech activity to be subsidized, it would have no power to intervene at the "micro" level, that is, to control the content of a particular communication. Likewise some rules against invidious discrimination, though giving government more leeway than when it is undertaking to regulate speech, would certainly apply. Development of these and other limiting principles, however, remains for the future.

Further support for affirmative promotion of speech rests on the constitutional doctrine of the right to know. The concept of a right to know includes not only the right of listeners and viewers to receive communications but also the right of those wishing to communicate to obtain information from the government. In earlier decisions the Supreme Court rejected right-to-know arguments that news reporters had a constitutional right to be admitted to prisons in order to observe conditions and interview inmates. But in richmond newspapers v. virginia (1980) the Court, changing directions, ruled that the public and the press could not be excluded from criminal trials, thereby holding for the first time that some right to obtain information from the government existed. How much further the Court will go in compelling the government to disclose information remains to be seen. Most likely the right of would-be speakers to obtain information from the government will continue to rest primarily upon freedom of information and sunshine laws.

Efforts to expand and improve the system of free speech by affirmative governmental action, although they incur serious risks, remain essential to the continued vitality of the system. Major progress in this area will probably depend, however, more on legislative than judicial action.

The right to freedom of speech embodied in the First Amendment has expanded into an elaborate constitutional structure. This theoretical framework has some weaknesses. At some points it does not extend sufficient protection to speech, and at other places loosely formulated doctrine may not stand up in a crisis. On the whole, however, the legal structure provides the foundation for a workable system. The extent to which freedom of speech is actually realized in practice depends, of course, upon additional factors. The underlying political, economic, and social conditions must be favorable. Above all, freedom of speech, a sophisticated concept, must rest on public interest and understanding.

Thomas I. Emerson
(1986)