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Freedom of Speech

Public Forum Regulation, Inciting, Provocative, Or Offensive Speech, Prior Restraint, Expressive Conduct

The right, guaranteed by the FIRST AMENDMENT to 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 [1919]).

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.

FURTHER READINGS

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.

Additional topics

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