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Freedom of Speech - Further Readings

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Speech and Expression
The desire to exchange thoughts with others is considered a natural inclination of human nature. Common use of the term speech infers pure, or verbal, speech, a complex ability to communicate that distinguishes humans from other species. However, use of the term in U.S. law includes a much wider range of individual expression including speaking, writing, and even through behavior called symbolic speech. Therefore, free speech includes all forms of expression, including books, newspapers, magazines, radio, television, computer transmittals, motion pictures, and certain physical actions. Though the phrase freedom of expression is commonly used in courts, the term expression actually does not appear in the First Amendment. Its use, however, includes freedoms of speech, press, assembly, petition and association.
Throughout history many governments restricted speech for fear that the spread of ideas by the citizens could interfere with the government's conduct of business and create social disorder. Two kinds of interests are included in free speech, individual interests in expression and social interest in regard to protection from certain kinds of false or hurtful statements. Speech is a personal right that receives preferred treatment over property rights issues by the Supreme Court, with speech cases receiving closer scrutiny. This preferred status is often called the "firstness" doctrine of the First Amendment.
The Origins of Free Speech Concerns
Struggles over attaining freedom of speech have a long history. Citizens of Athens in ancient Greece actually enjoyed considerable freedom of speech in the 400s B.C. Freedom of speech, though, was a central issue to the conflict between religion and politics throughout European history including the Reformation in the sixteenth century that gave rise to a new religious tradition ofProtestantism. Speech restrictions issued by King James I led to a declaration of freedoms by Parliament in 1621. During the Enlightenment in the seventeenth and eighteenth centuries, speech was considered a natural right. Influential philosophers of England and France stressed the importance of the individual with each person having a right to speak freely and participate in government. Freedom of expression thus became an important factor in the French Revolution leading to the 1789 Declaration of the Rights of Man.
The colonists were well aware of the English tradition of suppressing speech.In forming a democracy, the founders considered free speech absolutely necessary. Freedom of belief would have little meaning if thoughts could not be freely expressed and shared. In fact, a tradition of robust and rowdy expression was prevalent during the framing of the Constitution. The framers reasonedif government was to be governed by the people, then government can be only as effective as the citizens are informed. Influenced by the 1789 French declaration, the framers raised freedom of speech to yet another level involving constitutional law, more compelling than a declaration. In the end, the colonists struck a balance between absolute freedom and the English form of restricted freedom. The First Amendment read "Congress shall make no law...abridgingthe freedom of speech."
Speech and the Law
Debate in the Constitutional Congress over the First Amendment made it clearan unlimited right of expression was not intended despite the absolute wording of the clause. Ever since, the courts have sought to balance restrictions on individuals' speech rights and preservation of an orderly society. Government may restrain speech through suppression before the utterance is spoken (prior restraint) or through punishment after it is spoken. Also, protection offree speech must be compatible with protecting other rights such as privacy and right to a fair trial. Two very basic categories of expression were distinguished: pure expression and expression associated with conduct. Pure expression, consisting of spoken opinion to a voluntary audience, is almost fully protected from restrictions. Conduct is not. In Cantwell v. Connecticut (1940), a case focused on religious freedom, the Court held that the First Amendment "embraces two concepts - freedom to believe and freedom to act. The first is absolute, but...the second cannot be. Conduct remains subject to regulation for the protection of society." The Court found in Cox v. Louisiana (1965) that "rights to free speech and assembly...do not mean that everyone with opinions...may address a group at any public place and at any time."Public order must be maintained or "liberty itself would be lost in the excesses of anarchy."
In Cox, the Court recognized several forms of speech restrictions including: (1) libel and slander that harm reputations; (2) speech that offends public decency by using obscenities or encouraging acts considered immoral; (3) laws against spying, treason, and urging violence that endangers life, property, or national security; and, (4) speech that invades peoples' right not to listen, such as city ordinances limiting the use of loudspeakers on publicstreets.
But where does the line fall between constitutionally protected conduct and unacceptable conduct that can be restrained by the government? That question has been tough for the courts to answer when tackling specific cases. In the 1950s, the Court introduced the "balancing doctrine" weighing speech rights against public interests which grew into the "compelling public interest" doctrine, which centered mainly on the rights of a community to voice their concerns and views about their locale. As dissatisfaction with the "compelling public interest" test grew, the Court focused more specifically on the laws in question looking for vagueness or overbreadth, or less restrictive alternatives.
Initially, some believed only political speech was meant to be protected. Others contended, even speech in error should receive protection so that the truth could eventually be discovered. Judicial interpretations of the First Amendment have steadily enlarged the definition of "speech" continually seeking to determine the kinds of speech protected by the First Amendment and those not protected. In 1977, the Court chose to add philosophical, economic, social,and other non-political fields to political discussion as protected speech in Abood v. Detroit Board of Education. In 1998, the Washington State Supreme Court overturned a state law prohibiting false political advertising by holding that the First Amendment even protects lies.
Speech and National Security
Many congressional limitations on free speech were imposed on the United States between the time of the Civil War and World War I. Such restrictions included the Sedition Act of 1798, which forbade any advocation of treason or theoverthrow of the government; and martial law during and after Reconstruction.However, no important cases involving the free speech were decided by the Supreme Court until after World War I.
With the advent of World War I, fears stemming from war with Germany and the1917 Russian Revolution compelled Congress to again pass restrictions on speech about treason, including the Espionage Act of 1917 and the Sedition Act of1918. In the first case concerning free speech before the Supreme Court, Schenck v. United States (1919), the Court attempted to balance concernsover national security with free speech. The Court introduced the "clear andpresent danger" test which stated that speech raising a clear and present danger of causing results that Congress had authority to prevent was not protected under the First Amendment. In the decision, an enduring statement on the limitations of free speech was made by Justice Oliver Wendell Holmes in that one cannot be free to falsely shout fire in a theater and cause panic. The Clear and Present Danger test was the standard applied by courts to free speechcases for the next half century. Importantly in Schenck, the Court held that constitutional protections of speech extend beyond prior restraint concerns, including protection from punishment after speech is made under certain circumstances.
In another sedition trial, Gitlow v. New York (1925), the Court applied the free speech clause to state laws for the first time. National securityrestrictions on speech continued as the Cold War commenced with associated anti-subversive laws. The 1940 Smith Act (another act regarding treason) was upheld in Dennis v. United States when the Court held that advocating overthrow of the U.S. government by force was sufficient danger to warrant restriction. However, the Court later limited government restriction by holding that advocacy of specific action must be present to not be protected. The testof incitement toward imminent illegal action was further applied during the1960s anti-war protest era in Brandenburg v. Ohio (1969), where the Court ruled that a person's words were protected by free speech if they did notincite unlawful actions.
The Many Sides of Speech
Public safety issues arose also, in which the Court sought to balance the rights of individuals making public speeches and an audience's right to hear thespeech--with the government's responsibility to maintain public order and safety. In Hague v. Committee for Industrial Organization (1939) and Cox v. New Hampshire (1940) the Court affirmed the rights of individualsto deliver public speeches, but under "reasonable" limitations. Such limitations involved regulation of time, place, and manner.
The most perplexing cases before the Court involved questions of when individuals may incite others to act. Unpopular opinions, which needed constitutional protection most, were most likely to cause hostile reactions from listeners. When may government restrict such speech? The Court clarified that civil authorities must be acting to ensure safety, and not to suppress unfavorable speech. When are speech and expression not considered essential to communicateideas and have little social value? One such area of speech is "fighting words" in which public insults are intended to raise violent responses. The firstcase addressing this issue, Chaplinsky v. New Hampshire (1942), established "fighting words" as a category of speech not protected by the Constitution.
In the 1990s the issue of hate crimes rose in prominence and states passed laws prohibiting expressions of racial, religious, or gender prejudice. The symbolic actions of cross burnings and swastika displays were included in prohibitions. The Court, in R.A.V. v. City of St. Paul (1992), overturned ahate crime ordinance because it prohibited expression based on content ratherthan invoking the "fighting words" doctrine. The case involved a questionable group that wished to hold a parade along a main street of the city of St. Paul.
Like libel, commercial speech, meaning speech proposing financial transactions such as advertising, was initially considered to be outside the realm of First Amendment protection. However, using the "marketplace of ideas" doctrine,the Court dropped the distinction between public information and advertisingfor strictly commercial purposes in the 1976 case Virginia State Board ofPharmacy v. Virginia Citizens Consumer Council holding that the free flow of information was necessary for a free enterprise system. Consequently, the First Amendment protected commercial advertising, but to a lesser degree than political and other noncommercial speech. In 1980 the Court held that corporations deserved much the same protections as individuals.
Another controversial form of speech addressed by Congress and the Courts involved political campaign spending and contribution limits. In reaction to Watergate revelations, Congress passed the Federal Election Campaign Act of 1974. The act revised limits on spending and contributions and established a system of public funding. A challenge against the law soon came to the Court in Buckley v. Valeo (1976). The Court ruled spending limits violated FirstAmendment protections citing the modern high costs of mass media communications. Buckley did uphold limits on contributions, citing the government's interest in preventing corruption. In a related case, the Court overturneda state law prohibiting corporations from spending to influence voters on local referendums in First National Bank of Boston v. Bellotti (1978).
As an employer, the government has greater flexibility to restrict its employees' speech. Such restrictions were elaborated in Pickering v. Board of Education (1968) and later in Connick v. Myers (1983) in which the Court sought to balance government interest in minimizing disruptive behaviorand employee rights. Congress added statutory protections for employees who report work related wrong-doing to their employers or fellow employees (whistleblowers) by the Whistleblower Protection Act of 1989. Similarly, juveniles are accorded approximately the same rights as adults when on trial, as established in the 1967 In re Gault decision. Government employees also facerestrictions in their participation in political activities.
Speech and Modern Society
The late 1990s witnessed a number of key speech issues. In 1998 Mayor RudolphGiuliani of New York City attempted to "civilize" the city by regulating certain activities including street vendors. A number of lawsuits claiming freespeech violations resulted when higher fees were charged to operate newsstands and for street musicians. A case involving permit requirements for sidewalkartists went to a federal appeals court which held that selling art was a form of protected speech and could not be selectively regulated. The U.S. Supreme Court declined to hear the case. Highlighted was the tension between the city government attempting to manage its public spaces and people seeking to preach and sell their wares in public.
The courts continued to be asked what speech needed protection for the sake of democracy. Should it really include advertising, product labeling, or campaign contributions in cases with little clear connection to politics? Campaignspending and contributions were not pressing issue, through most of the twentiethth century. But with expansion of First Amendment protections to campaign contributions in 1976, the cash-driven electoral system of the 1990s evolved into what many believed to be counter to the democratic participatory ideals of the founders. Prohibiting regulation of campaign contributions appearedto place the political process under the influence of the wealthy. Fearing violation of free speech, Congress rejected a proposed constitutional amendmentin 1998 that would have given Congress and the states authority to establishcampaign spending limits.
In 1997 Congress passed the Communications Decency Act imposing criminal penalties for distributing "indecent" material. The Supreme Court in 1998 overturned the act based on free speech concerns. By the late 1990s it was becomingincreasingly apparent that traditional means of censorship and conceptions ofFirst Amendment rights did not readily apply to the new world of online media with technologically advanced forms of communication. Words were no longerassociated with physically identifiable objects such as books and magazines,the cost of copying was greatly reduced, and even the concept of "publishing"changed. With the demise of decency laws and continued interest in regulating the range of Internet content, emphasis shifted from censorship by the sender of information and material to censorship by the receiver. New Internet access management software capabilities were created under direction of the World Wide Web Consortium to filter material being received on a content basis.The Consortium, an independent body supported by the internet industry, sought to formalize standards and protocols for the Web. Offensive or unwanted material could be blocked by the receiver. Congress also began considering legislation imposing self-rating requirements for internet information providers.Issues of free speech and personal privacy were central to deliberations.
A call came forward with the advent of technologically advanced systems to fundamentally refocus the application of the freedom of speech more to desiredgoals, rather than more narrowly focus on prohibitive forms of government regulation. Legislation was needed to protect free expression on its own merits,rather than allowing for such liberties to be protected only in a reactive mode. Concern grew over the increasing ability of private and corporate interests to restrict the free flow of information. The primary threat to censorship was no longer considered the government.
[back] Freedom of Speech - Public Forum Regulation, Inciting, Provocative, Or Offensive Speech, Prior Restraint, Expressive Conduct

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