Freedom of Speech

Debate in the Constitutional Congress over the First Amendment made it clear an 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 of free 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 public streets.

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.