Freedom of Speech
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
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Haiman, Franklyn S. 1981 Speech and Law in a Free Society. Chicago: University of Chicago Press.
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Freedom of Speech
FREEDOM OF SPEECH
The right, guaranteed by thefirst amendmentto the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.
Democracies have long grappled with the issue of the limits, if any, to place on the expression of ideas and beliefs. The dilemma dates back at least to ancient Greece, when the Athenians, who cherished individual freedom, nevertheless prosecuted Socrates for his teachings, claiming that he had corrupted young people and insulted the gods.
The Framers of the Constitution guaranteed freedom of speech and expression to the citizens of the United States with the First Amendment, which reads, in part, "Congress shall make no law … abridging the freedom of speech." Almost since the adoption of the bill of rights, however, the judiciary has struggled to define speech and expression and the extent to which freedom of speech should be protected. Some, like Justice hugo l. black, have believed that freedom of speech is absolute. But most jurists, along with most U.S. citizens, agree with Justice oliver wendell holmes jr., who felt that the Constitution allows some restrictions on speech under certain circumstances. To illustrate this point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" (schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 ).
During the two centuries since the adoption of the First Amendment, the U.S. Supreme Court has held that some types of speech or expression may be regulated. At the same time, the Court has granted protection to some areas of expression that the Framers clearly had not contemplated.
Public Forum Regulation
When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the U.S. Supreme Court examines whether the regulation restricts the content of the speech or merely regulates the time, manner, and place in which the speech is delivered.
If the law regulates the content of the expression, it must serve a compelling state interest and must be narrowly written to achieve that interest (Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 ). Restrictions on speech in a public forum also may be upheld if the expressive activity being regulated is of a type that is not entitled to full First Amendment protection, such as obscenity.
Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression. These so-called content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communication (see Perry). It is not necessary that a content-neutral law be the least restrictive alternative, but only that the government's interest would be achieved less effectively without it (Ward v. Rock against Racism, 491 U.S. 781, 109S. Ct. 2746, 105 L. Ed. 2d 661 ).
An important distinction is drawn between public premises that serve as traditional public forums and those that constitute limited public forums. For example, state fair grounds are public premises that have not traditionally served as public forums. The government may impose more restrictions on free speech in limited public forums than in traditional public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds.
The Court reaffirmed in Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed.2d 783 (2002) that local governments do not violate the First Amendment when they require the obtaining of a permit before individuals can hold large-scale rally events in public parks. In this case, the Chicago Park District denied a rally permit to a group that had sought to hold a "Hempfest." The park district denied the permit because of violations of park rules at previous events run by the organizers. The group challenged the denial, arguing that the park district could use its unfettered discretionary power to deny permits to those who held unpopular or controversial political views, such as support for the legalization of marijuana. The U.S. Supreme Court held that the park district's ordinance was a constitutionally permissible "content-neutral" regulation of time, manner, and place. It was directed toward all activity in a public park, not just toward communicative or political activity. It did not constitute subject-matter censorship
in any way. The Court explained that the park district's object was to coordinate multiple uses of limited space; to assure preservation of park facilities; to prevent dangerous, unlawful, or impermissible uses; and to assure financial accountability for damages caused by an event.
Although it seems reasonable to assume that public premises owned and operated by the government are public forums, some are not. In Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17L. Ed. 2d 149 (1966), the U.S. Supreme Court upheld the trespass conviction of students who demonstrated on the grounds of a jail. Although jailhouse grounds are public property, they have not been used traditionally as public forums: "No less so than a private owner of property, the state has the power to preserve the property under its control for the use to which it is lawfully dedicated." Later cases challenging restricted access to public premises focused on whether the government, in creating the premises, had intended to create a public forum. In United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld a postal-service regulation that bars the solicitation of contributions on a post office's sidewalk, because that sidewalk lacked the characteristics of a general public sidewalk. Similarly, it
declared an airport terminal to be a nonpublic forum because "the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity" (International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 ).
When private property rights conflict with the public-forum doctrine, the Court examines whether the regulation in question is narrowly tailored to serve a significant government interest. A law may not prohibit all canvassing or solicitation of, or distribution of handbills to, homeowners in a residential neighborhood, because a public street is a traditional public forum. However, it may limit specific types of speech activity that target particular individuals. In Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), the Court upheld an ordinance that prohibited the picketing of individual residences. The law had been narrowly drawn to serve the government's interest in precluding the picketing of captive householders, and allowed picketers ample alternative means of expression.
Inciting, Provocative, or Offensive Speech
Laws that limit inciting or provocative speech, often called fighting words, or offensive expressions such as pornography, are subject to strict scrutiny. It is well established that the government may impose content regulations on certain categories of expression that do not merit First Amendment protection. To illustrate this point, the Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942),"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems."
With the increase of activity in cyberspace, individuals can distribute questionable speech throughout the U.S. and the world. In Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), a federal appeals court ruled that an anti-abortion web site was not protected by the First Amendment. The web site posted photos, names, addresses, and other information pertaining to abortion providers, their family members, and others who were perceived as supporting abortion rights. Although neither the site nor the posters made explicit threats against the abortion providers, violence at clinics that provided abortions had followed poster distribution in the past. Planned Parenthood sued the group under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, and other laws. The trial judge instructed the jury that if the defendants' statements were "true threats," the First Amendment would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The Ninth Circuit stated that a jury could conclude that the postings constituted a true threat under FACE, which removed any First Amendment protection for the defendants.
The Court has also upheld laws that regulate speech activity if those laws do not limit the content of speech and impose only an indirect burden on freedom of speech. In such cases, the Court applies a less stringent test and balances the individual's free speech interests against the government's interest that is furthered by the law in question. In O'Brien v. United States, 393U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held that a statute prohibiting the destruction of draft cards did not violate the First Amendment, because the government's interest in maintaining a viable selective-service pool outweighed the statute's incidental infringement of free expression.
Since the 1980s, a number of laws have been passed that attempt to regulate or ban "hate speech," which is defined as utterances, displays, or expressions of racial, religious, or sexual bias. The U.S. Supreme Court has generally invalidated such laws on the ground that they infringe First Amendment rights. In R.A.V. v. City ofSt. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul's hate-crime ordinance, ruling that it unconstitutionally infringed free speech. The defendant in that case had been prosecuted for burning a cross on the lawn of an African-American family's residence.
The Minnesota Supreme Court held that the ordinance was limited to restricting conduct that amounted to Chaplinksky "fighting words." Therefore, the ordinance was not impermissibly content-based because it was "narrowly tailored" to further the "compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." The U.S. Supreme Court disagreed. Justice antonin scalia, in his majority opinion, wrote that, even assuming that the cross burning was proscribable under the "fighting words" doctrine, the ordinance was, on its face, unconstitutional. It violated the First Amendment because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses." Scalia agreed that the government may constitutionally proscribe content such as libel, but that it may not proscribe only libel that is critical of the government. In Scalia's view, the unprotected features of "fighting words" are their "nonspeech" element of communication. Thus, fighting words are like a noisy sound truck: each is a mode of speech, and both can be used to convey an idea, but neither has a claim on the First Amendment. The government cannot, however, regulate fighting words or a sound truck based on "hostility-or favoritism-towards the underlying message expressed."
In addition, the ordinance was not over-broad but underinclusive. The content limitation was impermissible because it displayed "the city council's special hostility towards the particular biases thus singled out." An ordinance not restricted "to the favored topics" would have the same effect the city desired, but without the discrimination against unpopular views. Justice Scalia also noted that the city could have prosecuted the defendant under traditional criminal law statutes, including arson, trespass, and terroristic threats. In his view, the city had other means to address the problem "without adding the First Amendment to the fire."
This decision did not end the debate over hate crimes. The Court took up the issue again in Virginia v. Black, 538 U.S. 343, 123 S. Ct.1536. 155 L. Ed.2d 535 (2003). This case also involved a cross burning aimed at terrorizing an African-American family. A Virginia criminal statute had outlawed cross burning "on the property of another, a highway or other public place …with the intent of intimidating any person or group." In a 6-3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners.
Like fighting words, materials that are judged obscene are not protected by the First Amendment. The three-part Miller test stands as the yardstick for differentiating material that is merely offensive and therefore protected by the First Amendment, from that which is legally obscene and therefore subject to restriction (miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 ). The Miller test determines that material is obscene if (1) the average person, applying contemporary community standards, would find that it appeals to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific value.
The Seventh Circuit Court of Appeals ruled in Kendrick v. American Amusement Machine Association, 244 F.3d 572 (7th Cir. 2001) that a city ordinance that prohibited minors from playing violent or sexually explicit video arcade games was unconstitutional. The court noted that the city had not sought to regulate video games because they were "offensive" under Miller. Rather, the ordinance premised its restriction on the belief that violent fantasy video games led to real-world harm. The appeals court found no real difference between the content of the allegedly "violent" video games and generally available, unrestricted literature that depicted the same level of violence. They were both examples of "a children's world of violent adventures." The court, therefore, found that the ordinance impermissibly restricted minors' freedom of expression without any offsetting justification.
The Court uses a stringent standard when it evaluates statutes that impose a prior restraint on speech. The test that is most frequently employed asks whether the prohibited activity poses a clear and present danger of resulting in damage to a legitimate government interest. Most often, the clear-and-present-danger doctrine has applied to prior restraints on the publication of materials thought to threaten national security. This test was first expressed by Justice Holmes in the Schenck case. Charles T. Schenck had been charged with violating the Espionage Act (Tit. 1, §§ 3, 4 [Comp. St. 1918, §§ 10212c, 10212d]) by distributing pamphlets that urged insubordination among members of the military. The Court held that his activities created "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." The government's interest in maintaining national security and preventing dissension among the troops outweighed Schenck's interest in free speech.
The clear-and-present-danger test was extended during the 1950s, when widespread fear of communism led to the passage of the smith act, 18 U.S.C.A. § 2385, which prohibited advocating the overthrow of the government. The act was challenged as a prior restraint on speech. It was upheld by the U.S. Supreme Court, which stated that the clear-and-present-danger test does not require the government to prove that a threat is imminent or that a plot probably would be successful (Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137).
The Dennis decision was criticized as weakening the clear-and-present-danger test and allowing the government too much freedom to restrict speech. These results were remedied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), in which the Court invalidated a statute that punished the advocacy of violence in industrial disputes. The Court held that the government cannot forbid the advocacy of the use of force unless that advocacy is directed to inciting imminent illegal activity and is likely to succeed.
In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), Justice robert h. jackson wrote that symbols are "a short cut from mind to mind." Expressive conduct or symbolic speech involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message. Some expressive conduct is the equivalent of speech and is protected by the First Amendment.
In tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S. Supreme Court held that it was unconstitutional to suspend high-school students for wearing black armbands to protest the vietnam war, because their conduct was "akin to pure speech" and did not interfere with the work of the school or the rights of other students.
In Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed.2d 151 (2001), the U.S. Supreme Court ruled that a private Christian organization could not be denied use of the public school space for after-school activities. The Court emphasized that the Establishment Clause could not serve as a barrier to the organization's exercise of its free speech rights. Justice clarence thomas, in his majority opinion, addressed the freedom-of-speech argument. He noted that the school was a limited public forum and that the state therefore was not required to permit persons "to engage in every type of speech." However, the state's ability to restrict speech was not unlimited. In addition, the state could not discriminate against speech on the basis of viewpoint. Justice Thomas wrote that the school district decision had unlawfully imposed this requirement. He pointed to recent Court decisions that had forbidden states to prevent religious groups from using public facilities or to receive funding for an undergraduate organization.
Statutes that prohibit the desecration of the U.S. flag have been found to restrict free expression unconstitutionally. In texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the Court overturned Gregory L. Johnson's conviction for burning a U.S. flag during a demonstration. Johnson's actions were communicative conduct that warranted First Amendment protection, even though they were repugnant to many people. Similarly, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the federal Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C.A. § 700, stating that the government's interest in passing the act had been a desire to suppress free expression and the content of the message that the act of flag burning conveys.
The U.S. Supreme Court has generally struck down prohibitions on nudity and other erotic, but nonobscene, expressive conduct. However, in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Court upheld a ban on totally nude dancing, on the ground that it was part of a general ban on public nudity. While recognizing that nude dancing generally has been considered protected expressive conduct, the justices pointed out that such activity is only marginally within the perimeter of First Amendment protection.
In City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the U.S. Supreme Court upheld a local zoning ordinance that banned nude-dancing clubs within the city. It found that freedom of speech had not been unconstitutionally restricted because the ordinance did not ban the expressive conduct of nude dancing but only the means for expressing it within the city. It found that the city had good grounds for banning nude-dancing clubs; these were secondary effects on the community rather than the dancing itself. Therefore, the city had the authority to restrict the location of such clubs.
Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression. Generally, the First Amendment protects commercial speech that is not false or misleading and that does not advertise illegal or harmful activity. Commercial speech may be restricted only to further a substantial government interest and only if the restriction actually furthers that interest. In Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S. Supreme Court held that a statute banning promotional advertising by public utilities was unconstitutional. That case set forth a "general scheme for assessing government restrictions on commercial speech." Commercial speech will be protected by the First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted government interest is not substantial; (3) the regulation does not directly advance the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest. The U.S. Supreme Court has struck down bans on drug advertising, (Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002) and tobacco advertising, Lorillard Tobacco Corp. v. Reilly,, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), using this test.
Defamation and Privacy
In new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court declared that the First Amendment protects open and robust debate on public issues, even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." In Sullivan, a public official claimed that allegations about him that had appeared in the New York Times were false, and he sued the newspaper for libel. The Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression, particularly in the area of political debate. It decided that, in order to recover damages, a public official must prove actual malice, which is knowledge that the statements were false or that they were made with reckless disregard of whether they were false.
Where the plaintiff in a defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to the statements at issue. Public figures voluntarily place themselves in positions that invite close scrutiny, whereas private citizens have a greater interest in protecting their reputation. A private citizen's reputational and privacy interests tend to outweigh free speech considerations and therefore deserve greater protection from the courts (see Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 ).
Haiman, Franklyn S. 1993. Speech Acts and the First Amendment. Carbondale, Ill.: Southern Illinois Univ. Press.
Hall, Kermit L. 1989. The Magic Mirror: Law in American History. New York: Oxford Univ. Press.
Wagman, Robert J. 1991. The First Amendment Book. New York: World Almanac.
Freedom of Speech
FREEDOM OF SPEECH
The First Amendment says "Congress shall make no law . . . abridging the freedom of speech." Along with the First Amendment freedoms of religion, assembly, and the press, the freedom of speech is part of the larger freedom of expression. It is the right to think, believe, and learn what we want, share our thoughts with others, and listen to what others have to say.
Throughout history governments have restricted the freedom of speech. They feared that the free flow of ideas would threaten their power and lead to social disorder. In 1621 free speech restrictions in England by King James I led Parliament to issue a declaration of freedoms. During the French Revolution in 1789, the French Declaration of the Rights of Man included the freedom of expression. When Americans drafted a Bill of Rights for the new U.S. Constitution in 1789, this history influenced them to include the freedom of speech in the First Amendment. (Adopted in 1791, the Bill of Rights contains the first ten constitutional amendments.)
The Bill of Rights applies only to the federal government, so state governments did not have to recognize freedom of speech for a long time. Then in 1868, after the American Civil War (1861–65) ended, the United States adopted the Fourteenth Amendment. Part of it says states may not "deprive any person of life, liberty, or property without due process of law." In Gitlow v. New York (1925), the U.S. Supreme Court decided that free speech is a "liberty" that is protected by the Fourteenth Amendment. Because of this, state governments today must allow freedom of speech.
The arguments for free speech
The U.S. Constitution protects free speech for many reasons. Free speech is essential for people to develop as individuals. It allows people to learn and explore what they want, which allows each person to be unique and special. It also spreads knowledge to more people, which helps Americans become better informed.
Free speech is also essential to the U.S. form of government. The United States's political leaders are elected by the people. Citizens could not make intelligent decisions on election day if they could not learn about the various candidates. Free speech also helps Americans stay informed about what their political leaders are doing, both good and bad.
Finally, free speech is essential for social change. For example, slavery was legal when the United States was formed. It took decades of discussion about the evils of slavery to spark the American Civil War, which ended slavery. If the government had been allowed to stop people from talking about the evils of slavery, it might have taken even longer to build a strong opposition.
Many types of speech
Supreme Court cases deal with three kinds of speech: pure, symbolic, and speech plus conduct. Pure speech is the most basic kind of First Amendment speech. It covers words that are written or spoken. Pure speech includes books, magazines, newspapers, radio, television, the Internet, motion pictures, public speeches, and much more. Pure speech is so important that the First Amendment prevents the government from regulating it based on its content, meaning the message it contains. For example, a state could not pass a law preventing people from writing books about legal ways to avoid taxes.
This is true even when speech is hateful or offensive. For example, in Brandenburg v. Ohio (1969), the Ku Klux Klan held a rally to protest against the federal government. During the rally, Klansmen shouted racist language about African Americans and said all Jews should be sent to Israel. Although the language was offensive, the Supreme Court said it was protected by the constitutional guarantee of freedom of speech. In the 1990s laws designed to prevent hate crimes often violated the First Amendment by prohibiting such hateful speech.
The second kind of speech is symbolic speech. Neither written nor spoken, symbolic speech involves action that is meant to convey a message. For example, in Tinker v. Des Moines Independent Community School District (1969), the Supreme Court decided that students who wore black armbands to school to protest the Vietnam War (1954-1975) were exercising their right to free speech.
The most controversial cases concerning symbolic speech have involved the American flag. In 1898 Pennsylvania started a trend by passing a law that made it a crime to damage the American flag. Other states followed with their own laws, including laws about other flags. In 1919 opposition to communism led California to pass a law banning displays of red-colored flags. In Stromberg v. California (1931), the Supreme Court overturned the law, saying it violated the right to engage in symbolic speech. It was not until Texas v. Johnson (1989), however, that the Court finally decided that flag burning is a form of symbolic speech protected by the First Amendment. The Court said that government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
The third kind of speech is called speech plus conduct. It combines the exercise of free speech with some course of conduct. This makes it hard to distinguish from symbolic speech. For instance, United States v. O'Brien (1968) involved Vietnam War opponents who burned their military draft cards—documents they were required to carry in preparation for being called into military service. The Supreme Court said that even though the protesters were exercising free speech, the government could outlaw the conduct of burning draft cards. The protesters still could oppose the military draft with other forms of speech.
No coverage for obscenity
Some speech is not protected by the First Amendment. Obscenity has little value and does not meaningfully contribute to the free flow of ideas. Obscenity, however, is hard to define. It generally means material of a sexual nature that is offensive. But different people are offended by different things. For example, some people would be offended by an artist's painting of nude people having sex, while others would consider the painting to have artistic value. To handle obscenity cases, the Supreme Court decides whether the material is sexually offensive and lacks literary, artistic, political, or scientific value. If so, the material is not protected by the First Amendment.
Fighting words also are not covered by the right to freedom of speech. Chaplinsky v. New Hampshire (1942) concerned a Jehovah's Witness who created a public disturbance by calling a city marshal a "damned racketeer" and a "damned Fascist." Chaplinsky was convicted under a state law making it a crime to call another person offensive names in public. The Supreme Court decided the conviction did not violate the freedom of speech guarantee. It said the First Amendment does not protect "fighting words," words that by themselves tend to cause injury or an immediate breach of the peace.
Not an absolute freedom
The First Amendment says Congress shall make "no law" interfering with free speech. Some people think "no law" means what it says, that government cannot pass any laws that interfere with free speech. Most people, however, do not think "no law" means "no law." Instead, they believe government can interfere with speech to serve an important governmental purpose.
The Supreme Court agrees with the latter view, that the freedom of speech is not absolute. The Court has not, however, been able to create a consistent test for determining whether a law violates freedom of speech. Instead, it has created many tests over the years to handle different situations. The best one can do to understand freedom of speech is to study some of these tests.
Clear and present danger test
In U.S. history, federal and state governments have passed sedition laws to prevent people from speaking against the government. Sedition laws were designed to foster respect for the government and to prevent people from starting a violent revolution. In Schenck v. United States (1919), the U.S. Supreme Court decided whether the federal Sedition Act of 1918 violated freedom of speech. Passed during World War I (1914–18), the Sedition Act made it a crime to say anything to cause disrespect for the U.S. government.
Schenck, the secretary of the Socialist Party in America, was convicted under the Sedition Act for distributing pamphlets urging people to resist the military draft. The Supreme Court ruled that Schenck's conviction did not violate freedom of speech. In the Court's decision, Justice Oliver Wendell Holmes, Jr., made a famous observation about freedom of speech. He said free speech is not absolute because a person is not allowed to shout "fire" in a crowded theater when there is no fire. In other words, the government may punish words that create a "clear and present danger" of causing evils the government has a right to prevent. Because Congress had a right to stop people from avoiding the military draft, punishing Schenck for encouraging such conduct did not violate the First Amendment.
It is important to realize that sedition laws usually are enacted during times of great national stress, such as war. Generally, the First Amendment says government may not prevent people from speaking against war.
A balancing act
Besides protecting itself, government has many other reasons to pass laws that restrict speech. Often it is trying to protect a societal interest, such as a defendant's right to a fair trial or the public's interest in fair elections. If the Supreme Court finds the interest compelling, meaning very important, it will balance the interest against freedom of speech to decide which is more important. Sometimes it asks if the government has restricted speech as little as necessary to serve the compelling interest. The balancing test makes it hard to predict which way the Court will rule in a particular case.
For instance, in Ward v. Rock Against Racism (1989), Rock Against Racism began holding concerts in New York's Central Park in 1979. After people complained about the volume, New York City's government decided to require bands to use a sound system and sound engineer approved by the city so it could control the noise. Rock Against Racism filed a lawsuit saying that stopping the bands from using their own equipment and engineers violated freedom of speech. They said it prevented bands from making the music sound the way they wanted. The Supreme Court balanced the freedom of speech against the city's interest in controlling noise to rule in favor of New York City.
Commerce, jails, and schools
The government does not always have to show a compelling interest to restrict speech. The Supreme Court has decided that certain categories of speech deserve less protection than others. For a long time, commercial speech, such as advertising, did not receive any protection. Today the Court says commercial speech is protected by the First Amendment. Government, however, can regulate commercial speech as long as it does not stop it.
Speech in prison also receives less First Amendment protection. The Supreme Court says that government has an interest in maintaining order in jails. It also says criminals have given up the full right to free speech by breaking the law. This means the government can restrict speech in jails more than out in public.
The same thing happens in schools. The Supreme Court has ruled that students do not give up their freedom of speech by going to school. Schools, however, have an interest in maintaining order and discipline while teaching good values. This means schools can restrict speech more than other settings. For example, in Bethel School District No. 403 v. Fraser (1986), a high school student named Matthew Fraser gave an assembly speech nominating a fellow student for class vice president. He described the student using language that had a double meaning that referred to sexual intercourse.
Bethel High School suspended Fraser for using language that was obscene. The U.S. Supreme Court ruled that the suspension did not violate the right to freedom of speech, even though Fraser would have been free to speak as he did outside school or in another place. The Court said, "A high school assembly or classroom is no place for a sexually explicit monologue." The school was allowed to enforce the "fundamental values of public school education."
Time, place, and manner restrictions
Restrictions on speech in public are much less severe. In fact, the Supreme Court has ruled that government must allow people to exercise free speech in public places. Cities, for example, cannot prohibit speech in parks, on sidewalks, or in other areas where people traditionally gather to express themselves.
Government, however, is allowed to regulate speech for public convenience and safety. In Cox v. New Hampshire (1941), sixty-eight Jehovah's Witnesses were convicted for marching in a parade without getting a permit. They argued that the permit requirement violated their freedom of speech. The Supreme Court disagreed. It said that as long as government issues permits fairly to all persons, government may control the time, place, and manner of free speech for public convenience and safety. This rule, for example, allows the government to prevent someone from using a loudspeaker on neighborhood streets in the middle of the night.
Suggestions for further reading
Evans, J. Edward. Freedom of Speech. Minneapolis, MN: Lerner Publications, Inc., 1990.
Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.
King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.
Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.
Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.
Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.
Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.
Freedom of Speech
FREEDOM OF SPEECH
The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.
Ninth Circuit Upholds Online Vote-Swapping
In Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007), a three-member panel of the U.S. Circuit Court of Appeals for the Ninth Circuit held that vote-swapping Web sites were legal and protected by the First Amendment to the U.S. Constitution. (In March 2008, a petition for rehearing en banc [before the entire court] was denied.) Even so, this was the second time the matter was before the Ninth Circuit. In 2003, it had rendered another similar decision, involving essentially the same parties, but had remanded the case back to federal district court . Porter v. Jones, 319 F.3d 483 (9th Cir. 2003). It was the district court's decision on remand that became the subject matter of the 2007 decision.
The 2000 presidential election was one of the closest in U.S. history. In addition to two neck-in-neck frontrunners (GEORGE W. BUSH and ALGORE) from the two major political parties, there were also third-party candidates on both the left and right ends of the political spectrum who were vying for votes, especially from independents and voters in “swing-states,” or states without a dominant party affiliation associated with their voters. Bush and Gore supporters became worried that in such a tight race, votes for third-party candidates could be significant in “throwing” a swing state. They also became concerned about the quirks of the American electoral system, under which small numbers of third-party votes could become decisive in winner-take-all states (the majority). (Winner-take-all systems allocate all of a state's electoral votes to the candidate who receives the most popular votes in that state, even if that share of votes is less than an actual majority.)
During this highly-charged 2000 presidential pre-election period, San Francisco resident Alan Porter created a Web site, VoteSwap-2000.com, and eventually teamed up with William Cody, owner of VoteExchange2000.com. The undisputed objective of the two Web sites was to provide a forum for voters to trade their votes via e-mail. Essentially, the web sites would facilitate third-party supporters in a swing state (such as Florida or Ohio) to agree to be paired with major-party supporters in states where the major-party's candidate really didn't need the vote because the margin was so favorable, i.e., “safe states.” The swing-state voters would then promise to vote for the major-party candidate and, in exchange, their counterpart “safe-state” voters would promise to vote for the third-party candidate. The point of all this was ostensibly to ensure that major-party candidate Al Gore would improve his odds in swing states, while third-party candidates (such as Ralph Nader) would still garner enough national popular votes to qualify the third-party for federal funding in future elections (five percent minimum).
Four days after the Web sites opened for operation, Porter and Cody were served threatening “cease and desist” letters from then-California Secretary of State, Bill Jones, for alleged violations of various state election and penal code (criminal) provisions, including Code provisions 18521 and 18522 (prohibitions on brokering the exchange of votes). Immediately, the owners shut down/disabled their respective Web sites, fearing prosecution. Ultimately, they ended up filing suit against Jones and the state, alleging that the threatened prosecution violated the First Amendment and the Dormant Commerce Clause , and further, that Jones' actions exceeded the scope of his authority under California's election code. They sought both injunctive and declarative relief.
In the 2003 decision, the district court dismissed Porter's and Cody's claims as moot, but stayed their claims for prospective relief. The Ninth Circuit reversed, finding the case ripe for decision and not moot, and remanded (the 2003 decision).
Notwithstanding that decision, the district court, on remand, granted summary judgment in favor of Jones, again deciding that Porter's/Cody's claims for prospective relief were moot, but for a different reason than previously held: a new letter sent from Jones's successor, Shelley, to then-Speaker of the California Assembly, asking for “legislative clarification” of the provisions cited by his predecessor Jones against the two vote-swapping Web site owners. In the letter, Shelley stated, “Until such legislative clarification is made, I will not seek to prevent the operation of websites such as voteswap2000.com and voteexchange2000.com.” The district court found this new letter to “clearly and unequivocally indicate that the laws will not be enforced in the same manner against future conduct by [Porter, Cody] or others until the legislature provides further clarification.” The district court entered its decision in March 2006.
Again, Porter and Cody appealed, and again, the Ninth Circuit reversed the district court on the matter of mootness. The court held that Shelley's letter did not make it clear that California would not threaten such websites in the future, and therefore, the appeal was not moot.
Moving on to the merits of the case, the Ninth Circuit held that the website's vote-swapping mechanisms were protected activities under the First Amendment. Accordingly,
California needed to meet a high-scrutiny test to overcome the presumption of First Amendment protection. Although California did articulate its valid interests in preventing election fraud and corruption, “and perhaps in avoiding the subversion of the Electoral College,” those interests did not justify the complete disabling of the Web sites or vote-swapping mechanisms. In other words, Jones's actions were not sufficiently narrowly-tailored to advance the State's legitimate interests.
The court also found that Jones was entitled to qualified immunity from damages. This was because the constitutionality of stopping vote-swapping was not clearly established in 2000.
Westboro Baptist Church Held Liable for Protesting Military Funeral
A federal jury in Baltimore in October 2007 ruled that the controversial Westboro Baptist Church of Topeka, Kansas was liable for $10.9 million. The church has become infamous for protesting military funerals under the pretext that the soldiers have died because God is punishing America for supporting homosexuality. A father of one of the deceased soldiers sued the church when church members protested at his son's funeral.
Fred Phelps, formerly an attorney, founded Westboro Baptist Church in 1955. For many years, Phelps represented black clients in civil rights suits. He was disbarred during the early 1990s amid a conflict with state investigator and state judges. He has since focused his efforts on his church. Eleven of Phelps' 13 children are also lawyers. Westboro has about 75 members, most of whom are members of Phelps' family. Four of Fred Phelps' children have rejected his ministry.
The church first gained notoriety in 1998 when members decided to protest the funeral of Matthew Shepard, a gay college student who was beaten to death after being lured from a bar by two men. Church members showed up to display signs that read “God Hates Fags” and shouted that Shepard was in hell for being a homosexual. The group also attempted to post a plaque in Wyoming that suggested Sheppard was in hell.
Since the Shepard incident, Westboro members claimed that God has caused such incidents as the SEPTEMBER 11TH ATTACKS, Hurricane Katrina, and mining deaths in West Virginia in 2005. Church members also threatened to protest at the funeral of actor Heath Ledger , who was straight but played a gay character in the movie “Brokeback Mountain.” The church maintains several websites that spread messages of hatred. According to Phelps, “God promised dire outpourings of very painful wrath, and there's nothing more painful than killing one of your children and that's what's going on in Iraq. That's what we're preaching and the forum of choice to deliver such a message, obviously, is the funeral of the kid that's been blown to smithereens.”
Church members have focused their attention on many funerals of fallen soldiers. The soldiers are not gay nor are they accused of being gay. Instead, the church believes that they died because God is punishing the United States for its tolerance of homosexuality. The members argue that the soldiers have died while earning their paychecks and that they are not true heroes. In addition to the signs focusing on homosexuality, protestors also display signs with such statements as “America is Doomed” and “Don't worship the dead.”
A motorcycle group named Patriot Guard Riders began to attend funerals at the request of families to shield those in attendance at the funerals from the protests. The organization claims that its membership exceeds 100,000, many of whom are veterans. During funerals, members of the Patriot Guard Riders display flags that block families from having to see the Westboro protestors. The bikers also attempt to drown out the protests by singing patriotic songs or revving their motorcycle engines.
The Westboro protests have led several states to enact legislation that would prohibit protestors from picketing within a certain distance (300 to 500 feet) of the funeral. According to the National Conference of State Legislatures, forty states have enacted these types of laws. Westboro members claim that these statutes are unconstitutional. Nevertheless, because of this legislation, the members have moved their efforts to other venues, such as military hospitals.
The family of one fallen soldier fought against the Westboro church by turning to the courts. Marine Lance Cpl. Matthew A. Snyder died on March 6, 2006 in the Al Anbar province in Iraq. His body was returned home for burial two weeks later. Westboro church members showed up to protest, displaying their typical signs and also the signs reading “Semper Fi Fags,” which is especially offensive to Marines. The church also posted an item to its website, indicating that Matthew Synder's father, Albert, had “taught Matthew to defy his Creator, to divorce, and to commit adultery,” as well as “raised him for the devil.”
Albert Snyder filed suit against Westboro in a U.S. district court in Baltimore. He claimed that the protests were emotionally damaging to him, as he was already grieving from his son's death. The suit also alleged that the church violated Synder's privacy, defamed him, and caused intentional infliction of emotional distress. Snyder sought compensatory and punitive damages . According to the suit, punitive damages were appropriate because they would serve as a deterrent against future protests. In addition to the church, other defendants included Fred Phelps and two of his daughters.
On October 31, 2007, the federal jury returned a verdict, awarding Snyder $10.9 million. Of this amount, $2.9 million was for compensatory damages , $6 million in punitive damages for invasion of privacy, and $2 million in punitive damages for emotional distress. Snyder pledged that he would continue to fight the Westboro church's protests. “I hope it's enough to deter them from doing this to other families,” said Snyder. “It was not about the money. It was about getting them to stop.” Despite the ruling, the church said that it would carry on with its protests.
First Amendment experts expressed some concerns with the ruling, noting that judgments such as these could curtail protected speech.
Freedom of Speech
Freedom of Speech
The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.
Video Game Industry Defeats Bans on Sales of Video Games
A number of state legislatures in the recent past have attempted to combat what is perceived as a problem with violence in video games. These states have enacted statutes that ban the sale of certain games, especially those that depict sexual or violent acts, to minors. The video game industry, acting through trade associations, have challenged these statutes by arguing that they violate the First Amendment the United States Constitution. In 2006 and 2007, the video game industry was successful in challenging several of these statutes in various federal courts.
Michigan Governor Jennifer Granholm signed a bill in September 2005 that regulated the distribution of sexually explicit and "ultra-violent" explicit video games to individuals under the age of 17. The statute defined an "ultra-violent explicit video game as one that "continually and repetitively depicts extreme and loathsome violence." The act in turn defines "extreme and loathsome violence" as "real or simulated graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings, including actions causing death, inflicting cruelty, dismemberment, decapitation, maiming, disfigurement, or other mutilation of body parts, murder, criminal sexual conduct, or torture."
The Michigan legislature stated several concerns about the nature of these video games as the reason for enacting the statute. The concerns were that children who play ultra-violent video games are more likely to exhibit aggressive and violent behavior, that there are causal connections between media violence and aggressive behavior in children, and that minors in that state were capable of purchasing ultra-violent games. The legislature's goals included: "(1) safeguarding both the physical and psychological well being of minors, (2) preventing violent, aggressive, and asocial behavior from manifesting itself in minors, and (3) directly and substantially alleviating the real-life harms perpetrated by minors who play ultra-violent explicit video games."
The Entertainment Software Association (ESA), along with the Video Software Dealers Association and the Michigan Retailers Association, brought suit to challenge the statute, arguing that it violated protections of free speech, equal protection, and due process. On November 9, 2005, the U.S. District Court for the Eastern District of Michigan issued a preliminary injunction that barred enforcement of the statute. Four months later, the court issued a permanent injunction, ruling that the statute could not pass muster under the First Amendment. Entertainment Software Ass'n v. Granholm, 426 F. Supp. 2d 646 (E.D. Mich. 2006). According to the court, the state could not prove that it had substantial evidence that linked ultra-violent video games with violent behavior in children. The state also could not prove that the statute materially advance the state's goal of reducing aggressive behavior in children. Moreover, the court determined that the statute was unconstitutionally vague.
The Minnesota legislature enacted a statute in 2006 that incorporated the video game industry's voluntary rating system as part of the statute. The video game industry has established the Entertainment Software Rating Board (ESRB), to which video games are submitted voluntarily for review. Ratings are made based on reviews by three trained individuals. A game that is reviewed receives one of six classifications, including EC (Early Childhood), E (Everyone), E + 10 (Everyone 10 and Older), T (Teen), M (Mature), and AO (Adults Only). Under the Minnesota statute, a person under the age of 17 could not rent or purchase a video game rated AO or M.
The ESA and the Entertainment Merchants Association (EMA) challenged the statute on First Amendment and due process grounds. The U.S. District Court for the District of Minnesota agreed with the plaintiffs. According to the court, the statute violated the First Amendment because it regulated the distribution of video games based on content, and the state could not meet the requisite standard for imposing such a regulation. The court also ruled that the state's incorporation of the ESRB standard violated due process. Accordingly, the court enjoined enforcement of the statute. Entertainment Software Ass'n v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006).
The state of Louisiana in 2006 passed a statute that prohibited and criminalized the sale, lease, or rental of video or computer games that "appeal to a minor's morbid interest in violence." The ESA and EMA challenged the statute on First Amendment grounds, and the U.S. District Court for the Middle District of Louisiana enjoined the enforcement of the statute. In its decision, the court noted that the evidence presented by the legislature in support of its bill was "sparse and could hardly be called in any sense reliable." The judge also noted that studies cited by the state, which included those attempting to link violence in video games with aggressive behavior in children, had "been considered by numerous courts and in each case the connection was found to be tenuous and speculative." The district court granted a preliminary injunction on August 24, 2006, Entertainment Software Ass'n v. Foti, 451 F. Supp. 823 (M.D. La. 2006), and then issued a permanent injunction in November.
The Oklahoma legislature enacted a bill in 2006 that prohibited the sale of an interactive video game or software that displayed "inappropriate violence." The ESA and EMA challenged the statute in the U.S. District Court for the Western District of Oklahoma, and the court issued a preliminary injunction on October 11, 2006. Entertainment Merchants Ass'n v. Henry, No. CIV-06-675-C, 2006 WL 2927884 (W.D. Okla. Oct. 11, 2006).
In 2005, the Illinois legislature enacted two statutes related to video games, including the Violent Video Game Law (VVGL) and the Sexually Explicit Video Game Law (SEVGL). The SEVGL defined "sexually explicit" video games as "those that the average person, applying contemporary community standards, would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast." Under the SEVGL, retailers were required to place labels on video games indicating that the games were sexually explicit, and the statute prohibited the sale or rental of these games to minors.
The ESA, the Video Software Dealers Association, and the Illinois Retail Merchants Association brought suit in the U.S. District Court for the Northern District of Illinois. In December 2005, the court struck down the law as a violation of free speech. Entertainment Software Ass'n v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005). The court also determined that a labeling requirement in the statute violated free speech as a form of compelled speech. Eight months later, the court ruled that the State of Illinois had to pay $510,528.64 in attorney's fees resulting from the litigation.
The State of Illinois appealed the decision to the Seventh Circuit Court of Appeals. In November 2006, the court affirmed the trial court's decision, finding that the SEVGL was not narrowly tailored to achieve a compelling state interest in protecting children from indecent sexual material, and also that the labeling requirements constituted compelled speech. Entertainment Software Ass'n v. Blagojevich, 469 F.3d 641 (7th Cir. 2006).