Freedom 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 the speech--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 individuals to 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 communicate ideas and have little social value? One such area of speech is "fighting words" in which public insults are intended to raise violent responses. The first case 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 a hate crime ordinance because it prohibited expression based on content rather than 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 advertising for strictly commercial purposes in the 1976 case Virginia State Board of Pharmacy 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 First Amendment 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 overturned a 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 behavior and 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 face restrictions in their participation in political activities.