The 1st Amendment to the Constitution protects free expression through speech or press against suppression by the government: “Congress shall make no law… abridging the freedom of speech, or of the press.” All 50 state constitutions contain guarantees of free expression similar to those in the U.S. Constitution. An additional protection for the individual's right to free expression comes from Section 1 of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has used this section of the 14th Amendment to apply the 1st Amendment guarantee of freedom of speech and press to cases involving state and local governments.
The right to free speech and press means that individuals may publicly express ideas and information—including expressions generally considered to be unwise, untrue, or unpopular—without fear of punishment by the government. In this way, government officials may be criticized and new ways of thinking and behaving may be advanced. Forms of free speech include the use of symbols, orderly public demonstrations, and radio and television broadcasts. Freedom of speech is an essential characteristic of a constitutional democracy because by exercising this right, individuals can communicate opinions both to other citizens and to their representatives in the government. Through this free exchange of ideas, government officials may become responsive to the people they are supposed to represent.
The right to free speech stems from the right to freedom of the press established in England during the 17th century. At that time, however, the right to free speech was specifically extended only to members of Parliament. All presses had to be licensed until 1694, when the law requiring licenses lapsed and was not renewed. But controls on the press continued through prosecution for seditious libel, which is speech and writing critical of the government or public officials. In the British colonies of North America, several colonial charters and constitutions explicitly protected freedom of the press, but the right to free speech, as in England, was guaranteed only to members of the legislative branch of government.
The constitutions of most of the original 13 American states protected freedom of the press, but the right of free speech was again extended only to members of thestate legislature. An exception was the Pennsylvania Declaration of Rights (1776), which guaranteed freedom of the press and speech to the people.
Proposals for a bill of rights in the U.S. Constitution, advanced in the first session of Congress by James Madison (June 8, 1789), included freedom of speech and press. These rights to freedom of expression became part of the Constitution's 1st Amendment, ratified by the states in 1791.
From 1791 until the early 1900s, the U.S. Supreme Court heard no cases regarding free speech and free press issues. Then, after World War I, the Court decided several cases arising from enforcement of wartime laws to limit freedom of expression that threatened national security. In Schenck v. United States and Abrams v. United States (both 1919), the Court upheld such federal laws, basing its decisions on its “clear and present danger” and “bad tendency” tests.
Not until 1925, in Gitlow v. New York, did the U.S. Supreme Court assert its authority to deal with free speech and press issues originating at the state level of government. Prior to Gitlow, the 1st Amendment rights of free speech and press were held to apply only to the federal government (Barron v. Baltimore, 1833). In Gitlow, the Court acknowledged for the first time that the 1st Amendment freedoms of speech and press were tied fundamentally to the ideas of liberty and due process in the 14th Amendment. Thus, the rights of free speech and press were viewed as part of an individual's liberty that, according to the 14th Amendment, could not be taken from any person without due process of law.
Since Gitlow, the U.S. Supreme Court has made several landmark decisions that have expanded free speech and press rights through limitations on state government power to restrain or interfere with these rights. Examples of key Court cases on free speech and press issues, originating in the state courts, are listed below:
• Stromberg v. California (1931): The Court struck down a California statute outlawing the display of a red flag because it symbolized opposition to the government. This state law was held to be a violation of constitutional rights to freedom of expression.
• Near v. Minnesota (1931): The Court overturned a state law that barred continued publication of a newspaper because it printed articles that insulted racial and religious minorities and said nasty things about certain people. This law was held to be an example of “prior restraint” of the press in violation of the 1st Amendment.
• New York Times Co. v. Sullivan (1964): The Court ruled that the 1st Amendment protects the press from libel suits that result from the printing of articles that harm the reputation of a public official.
• Brandenburg v. Ohio (1969): The Court ruled that a state may not forbid or limit speech merely because it advocates the use of force against the government or the violation of the law. Rather, government may limit speech only when it is directly and immediately connected to lawless behavior. The Court departed from the “clear and present danger” doctrine used in Schenck v. United States and Abrams v. United States, which permitted government prohibition of speech that had a tendency to encourage or cause lawless behavior.
• Texas v. Johnson (1989): The Court decided that the state of Texas could not convict and punish a person for burning an American flag during a peaceful political protest demonstration. The state's action in this case, said the Court, violated the 1st Amendment's guarantee of freedom of expression.
Since the 1960s, the Supreme Court has also broadened free speech and press rights in cases originating at the federal level of government. Examples of key cases are Yates v. United States (1957) and New York Times Co. v. United States (1971). In Yates the court ruled that to prosecute people for violating the Smith Act, which prohibited the advocacy of violent overthrow of the government, there must be proof of overt lawless actions, not just expression of ideas about illegal behavior. In the New York Times case, the Court prevented the federal government from exercising “prior restraint” to stop a newspaper from printing information about the Vietnam War that it wanted to withhold from the public.
Supreme Court decisions in cases originating at the state and federal levels of government have protected speech and press from prior restraint by government, from charges of seditious libel by public officials, and from acts by government to ban or restrict unpopular ideas in speech and print—such as antiwar protests, antigovernment protests, and burning of the country's flag.
Americans have great freedom to say and write what they please without fear of government restrictions. But this freedom has limits pertaining to the time, place, and manner of speech. For example, individuals certainly have the right to speak out for or against candidates competing to win government offices. But they may not use amplifiers to broadcast campaign messages so loudly that residents of a community are disturbed late at night, when most people are in bed. This kind of speech is restricted by law because it unreasonably “disturbs the peace” of a community (Kovacs v. Cooper, 1949). But the government may not make a law restricting freedom of expression because of the content of the speech. In the Kovacs case Justice Felix Frankfurter wrote, “So long as a legislature does not prescribe what ideas may be… expressed and what may not be, nor discriminates among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose.”
Further, individuals do not have freedom under the Constitution to provoke a riot or other violent behavior. In times of national crisis, such as war or rebellion, the government could be justified in limiting freedom of expression that would critically threaten national security. The individual's right to freedom of expression must always be weighed against the community's need for stability and security. At issue is the point at which freedom of expression is sufficiently dangerous to the public welfare to justify constitutionally its limitation in speech, the press, television, or radio.
Issues about constitutional limits on freedom of expression have challenged every generation of Americans and will continue to do so. When and how much should the government limit a person's right to freedom of expression?
The answer of some authorities to this question has been an emphatic affirmation of practically unlimited free speech. Justice Hugo Black was an advocate of unfettered free speech. For example, consider this excerpt from his dissent in Dennis v. United States (1951):
[A] governmental policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation, however, the benefits derived from free expression were worth the risk. They embodied this philosophy in the First Amendment's command that “Congress shall make no law… abridging the freedom of speech, or of the press….” I have always believed that the First Amendment is the keystone of our government, that the freedoms it guarantees provide the best insurance against destruction of all freedom…. [I] cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those “safe” or orthodox views which rarely need its protection.
In contrast to Justice Black's view, Chief Justice Fred M. Vinson, in his majority opinion in Dennis, stated a more narrow view of free speech and press, which provides more room for restrictions by government in behalf of the public security:
Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.
An alternative viewpoint, which strongly supports freedom of speech, while recognizing the need for limits, was written by Justice Louis Brandeis in Whitney v. California (1927):
[A]lthough the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required to protect the State from destruction or from serious injury, political, economic or moral….To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced… [N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.
Brandeis's position—great latitude for free speech, with particular limits associated with the time, manner, and place of that speech—has been the prevalent viewpoint in the United States during most of the 20th century. This viewpoint, however, poses the continuing and complex challenge of making case-by-case judgments about the delicate balance of liberty and order, about the limits on authority and the limits on freedom that in concert sustain a constitutional democracy.
The latitude and limits of free speech are being challenged by new forms of communications, such as e-mail and the Internet. In Reno v. American Civil Liberties Union (1997), for example, the Supreme Court confronted the issue of federal government regulation of free speech via the Internet. The Court responded by striking down a 1996 federal law, the Communications Decency Act (CDA), which prohibited indecent messages through e-mail or on the Internet in order to shield children from offensive material. In this instance, the right to freedom of expression prevailed over an attempt to regulate it on behalf of the public good.
In United States v. Playboy Entertainment Group (2000) the Court ruled against a federal law that broadly limited the transmission of sexually explicit programs by cable television operators. The purpose of the regulation was to shield children from images deemed harmful to their healthy development, either by blocking transmission or limiting viewer access to hours when children were unlikely to be watching TV. The Court decided these regulations were too restrictive and thereby in violation of the 1st Amendment's free speech guarantee. For most of each day, no one in the cable service areas could receive the programs, whether or not a viewer wanted to see them. The Court decided that a system in which viewers could order signal blocking for themselves without restricting others was “an effective, less restrictive alternative” to the federal law at issue.
The question of when and how to limit freedom of expression via new mass communications technologies is likely to persist, and the Court will continue to face challenges about the latitude and limits of free speech and press.
See also Abrams v. United States; Barron v. Baltimore; Brandenburg v. Ohio; Dennis v. United States; Gitlow v. New York; Miami Herald Publishing Co. v. Tornillo; Near v. Minnesota; New York Times Co. v. Sullivan; New York Times Co. v. United States; Prior restraint; Schenck v. United States; Stromberg v. California; Texas v. Johnson; Tinker v. Des Moines Independent Community School District; Whitney v. California; Yates v. United States
Sources
- Margaret A. Blanchard, Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford-University Press, 1992).
- Nat Hentoff, Free Speech For Me–But Not for Thee: How the American Left and Right Relentlessly Censor Each Other (New York: HarperCollins, 1992).
- Bert Neuborne, “Cycles of Censorship”,
Constitution 4 , no.1 (Winter 1992): 22–29. - Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America (Berkeley: University of California Press, 1991).
- Norman Rosenberg, “Freedom of Speech” and “Freedom of the Press”, in By and for the People: Constitutional Rights in American History, edited by Kermit L. Hall (Arlington Heights, Ill.: Harlan Davidson, 1991).
- Rodney A. Smolla, Free Speech in an Open Society (New York: Knopf, 1992)
