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Freedom of speech in the United States

 
US Supreme Court: Freedom of Speech
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Law Encyclopedia: Freedom of Speech
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This entry contains information applicable to United States law only.

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 what 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 they 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 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 were clearly not contemplated by the Framers.

Public Forum Regulation

When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the Court examines whether the regulation restricts the content of the speech or merely regulates the time, place, and manner in which the speech is delivered.

If the law regulates the content of the expression, it must serve a compelling state interest and must be narrowly written to achieve that interest (Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 [1983]). Restrictions on speech in a public forum may also be upheld if the expressive activity being regulated is a type that is not entitled to full First Amendment protection, such as obscenity.

Laws that regulate the time, place, and manner, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression. These so-called content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communication (see Perry). It is not necessary that a content-neutral law be the least restrictive alternative, only that the government's interest would be achieved less effectively without it (Ward v. Rock against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).

An important distinction is drawn between public premises that serve as traditional public forums and public premises that constitute limited public forums. For example, state fair grounds are public premises that have not traditionally served as public forums. The government may impose more restrictions on free speech in limited public forums than in traditional public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds.

Although it seems reasonable to assume that public premises owned and operated by the government are public forums, some are not. In Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966), the Court upheld the trespass conviction of students who demonstrated on the grounds of a jail. Although jailhouse grounds are public property, they have not traditionally been used as public forums: "The State, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated." Later cases challenging restricted access to public premises focused on whether the government, in creating the premises, intended to create a public forum. In United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld a postal service regulation that bars the solicitation of contributions on a post office sidewalk, because that sidewalk lacked the characteristics of a general public sidewalk. Similarly, it declared an airport terminal to be a nonpublic forum because "the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity" (International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 [1992]).

When private property rights conflict with the public forum doctrine, the Court examines whether the regulation in question is narrowly tailored to serve a significant government interest. A law may not prohibit all canvassing or solicitation of, or distribution of handbills to, homeowners in a residential neighborhood, because a public street is a traditional public forum. However, it may limit specific types of speech activity that target particular individuals. In Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), the Court upheld an ordinance that prohibited the picketing of individual residences. The law was narrowly drawn to serve the government's interest in precluding the picketing of captive householders, and allowed picketers ample alternative means of expression.

Inciting, Provocative, or Offensive Speech

Laws that limit inciting or provocative speech, often called fighting words, or offensive expressions such as pornography, are subject to strict scrutiny. It is well established that the government may impose content regulations on certain categories of expression that do not merit First Amendment protection. To illustrate this point, the Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems."

The Court has also upheld laws that regulate speech activity if those laws do not limit the content of speech and impose only an indirect burden on freedom of speech. In such cases, the Court applies a less stringent test and balances the individual's free speech interests against the government's interest furthered by the law. In O'Brien v. United States, 393 U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held that a statute prohibiting the destruction of draft cards did not violate the First Amendment, because the government's interest in maintaining a viable selective service pool outweighed the statute's incidental infringement of free expression.

During the 1980s and 1990s, a number of laws were passed that attempted to regulate or ban "hate speech," defined as utterances, displays, or expressions of racial, religious, or sexual bias. The Court has generally invalidated such laws on the ground that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul's hate-crime ordinance, saying that it unconstitutionally infringed free speech. The defendant had been prosecuted for burning a cross on the lawn of an African American family's residence.

Like fighting words, materials judged obscene are not protected by the First Amendment. The three-part Miller test stands as the yardstick for differentiating material that is merely offensive and therefore protected by the First Amendment, from that which is legally obscene and therefore subject to restriction (Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]). This text determines that material is obscene if (1) the average person, applying contemporary community standards, would find that it appeals to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific value.

Prior Restraint

The Court uses a stringent standard when it evaluates statutes that impose a prior restraint on speech. The test most frequently employed asks whether the prohibited activity poses a clear and present danger of resulting in damage to a legitimate government interest. Most often, the clear and present danger doctrine has applied to prior restraints on the publication of materials thought to threaten national security. This test was first expressed by Justice Holmes in the Schenck case. Charles T. Schenck was charged with violating the Espionage Act (Tit. 1, §§ 3, 4 [Comp. St. 1918, §§ 10212c, 10212d]) by distributing pamphlets urging insubordination among members of the military. The Court held that his activities created "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." The government's interest in maintaining national security and preventing dissension among the troops outweighed Schenck's interest in free speech.

The clear-and-present-danger test was extended during the 1950s, when widespread fear of Communism led to the passage of the Smith Act, 18 U.S.C.A. § 2385, which prohibited advocating the overthrow of the government. The act was challenged as a prior restraint on speech. It was upheld by the Court, which stated that the clear-and-present-danger test does not require the government to prove that a threat is imminent or that a plot would probably be successful (Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 [1951]).

The Dennis decision was criticized as weakening the clear-and-present-danger test and allowing the government too much freedom to restrict speech. These results were remedied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), in which the Court invalidated a statute that punished the advocacy of violence in industrial disputes. The Court held that the government cannot forbid the advocacy of the use of force unless that advocacy is directed to inciting imminent illegal activity and is likely to succeed.

Expressive Conduct

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), Justice Robert H. Jackson said that symbols are "a short cut from mind to mind." Expressive conduct or symbolic speech involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message. Some expressive conduct is the equivalent of speech and is protected by the First Amendment.

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the Court held that it was unconstitutional to suspend high school students for wearing black armbands to protest the Vietnam War, because their conduct was "akin to pure speech" and did not interfere with the work of the school or the rights of other students.

Statutes that prohibit the desecration of the U.S. flag have been found to unconstitutionally restrict free expression. In Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the Court overturned Gregory L. Johnson's conviction for burning a U.S. flag during a demonstration. Johnson's actions were communicative conduct that warranted First Amendment protection, even though they were repugnant to many people. Similarly, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the federal Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C.A. § 700, stating that the government's interest in passing the act was a desire to suppress free expression and the content of the message conveyed by the act of flag burning.

Prohibitions on nudity and other erotic but nonobscene expressive conduct have generally been struck down by the Court. However, in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Court upheld a ban on totally nude dancing, on the ground that it was part of a general ban on public nudity. While recognizing that nude dancing has generally been considered protected expressive conduct, the justices pointed out that such activity is only marginally within the perimeters of First Amendment protection.

Commercial Speech

Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that given to noncommercial forms of expression. Generally, commercial speech that is not false or misleading and does not advertise illegal or harmful activity is protected by the First Amendment. Commercial speech may be restricted only to further a substantial government interest and only if the restriction actually furthers that interest. In Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the Court held that a statute banning promotional advertising by public utilities was unconstitutional.

Defamation and Privacy

In New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the Supreme Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." In Sullivan, a public official claimed that allegations about him that appeared in the New York Times were false, and sued the newspaper for libel. The Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression, particularly in the area of political debate. The Court decided that to recover damages, a public official must prove actual malice, meaning knowledge that the statements were false or were made with reckless disregard of whether they were false.

Where the plaintiff in a defamation action is a private citizen not in the public eye, the law extends a lesser degree of constitutional protection to the statements at issue. Public figures voluntarily place themselves in positions that invite close scrutiny, whereas private citizens have a greater interest in protecting their reputation. A private citizen's reputational and privacy interests tend to outweigh free speech considerations, and therefore deserve greater protection from the courts (see Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).

See: Broadcasting; Censorship; Dennis v. United States; E-mail; Fairness Doctrine; Freedom of the Press; New York Times v. Sullivan; Overbreadth Doctrine; Privacy; Roth v. United States; Schenck v. United States; Symbolic Speech.

Quotes About: Freedom of Speech
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Quotes:

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter." - George Washington

"I disapprove of what you say, but I will defend to the death your right to say it." - Voltaire

"In America the majority raises formidable barriers around the liberty of opinion; within these barriers an author may write what he pleases, but woe to him if he goes beyond them." - Alexis De Tocqueville

"The sound of tireless voices is the price we pay for the right to hear the music of our own opinions." - Adlai E. Stevenson

"The first principle of a free society is an untrammeled flow of words in an open forum." - Adlai E. Stevenson

"Free speech is the whole thing, the whole ball game. Free speech is life itself." - Salman Rushdie

See more famous quotes about Freedom of Speech

Wikipedia: Freedom of speech in the United States
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Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy, such as racism, are generally permitted. There are exceptions to the general protection of speech, however, including the Miller test for obscenity, child pornography laws, and regulation of commercial speech such as advertising. Other limitations on free speech often balance rights to free speech and other rights, such as property rights for authors and inventors (copyright), interests in "fair" political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on Hate speech or fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance. Efforts have been made to ban flag desecration, for example, though currently that act remains protected speech.

Contents

Historical background

England

During colonial times, English speech regulations were rather restrictive. The English criminal common law of seditious libel made criticizing the government a crime. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it. The objective truth of a statement in violation of the seditious libel law was not a defense.

Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license.

Colonies

The colonies originally had different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed. Professor Levy said that each community "tended to be a tight little island clutching its own respective orthodoxy and . . . eager to banish or extralegally punish unwelcome dissidents."[citation needed]

The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words."[1]

More recent scholarship, focusing on seditious speech in the 17th-century colonies (when there was no press), has shown that from 1607 to 1700 the colonists' freedom of speech expanded dramatically, laying a foundation for the political dissent that flowered among the Revolutionary generation. See Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America (NYU Press, 1994). Leonard Levy wrote of this book: "Anyone who has not read A Distant Heritage cannot know the history of freedom of speech."

The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example of jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

The First Amendment

In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government. During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.

The First Amendment was adopted on December 15, 1791. The Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court applied the incorporation principle to the right of free speech with the case of Gitlow v. New York. This decision applied First Amendment speech rights to state laws as well as federal ones.

The Alien and Sedition Acts

In 1798, Congress, which contained several of the drafters and ratifiers of the Bill of Rights at the time, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute; or to excite against them . . . hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States."

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act, however, made ascertainment of the intent of the framers in regard to the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Acts were a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act expired and the Supreme Court never ruled on its constitutionality.

See also: Espionage Act of 1917 and Sedition Act of 1918

In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).

First Amendment interpretation

Freedom of speech in the U.S. follows a graduated system, with different types of regulations subject to different levels of scrutiny in court challenges based on the First Amendment, often depending on the type of speech.

Types of Speech

Core Political Speech

This is the most highly guarded form of speech because of its purely expressive nature and importance to a functional democracy. Most simply, core political speech is interactive communications about political ideas or issues that are not motivated by profit. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.

Commercial Speech

Not wholly outside the protection of the First Amendment is speech motivated by profit. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. Restrictions of commercial speech are subject to a four-element intermediate scrutiny. (Central Hudson Gas & Electric Corp. v. Public Service Commission)

Types of restraints on speech

Time, place, or manner restrictions

Time, place, or manner restrictions must withstand intermediate scrutiny. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another). Time, place, or manner restrictions must:

  1. Be content neutral
  2. Be narrowly tailored...
  3. ...to serve a significant governmental interest
  4. Leave open ample alternative channels for communication

Content-based restrictions

Restrictions that require examining the content of speech to be applied must pass strict scrutiny.

Viewpoint-based restrictions

Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are almost always overturned, unless they fall into one of the court's special exceptions.

Special exceptions

Obscenity, defined by the Miller test by applying contemporary community standards, is one exception. It is speech to which all of the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)

Fighting words are words or phrases that are likely to induce the listener to get in a fight. This previously applied to words like nigger, but with people getting less sensitive to words, this exception is little-used. Restrictions on hate speech have been generally overturned by the courts; such speech cannot be targeted for its content but may be targeted in other ways, if it involves speech beyond the First Amendment's protection like incitement to immediate violence or defamation.

Speech that presents imminent lawless action was originally banned under the clear and present danger test established by Schenck v. United States, but this test has since been replaced by the imminent lawless action test established in Brandenburg v. Ohio. The canonical example, enunciated by Justice Oliver Wendell Holmes, is falsely yelling "Fire!" in a crowded movie theater. The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content.

Restrictions on commercial speech, defined as speech mainly in furtherance of selling a product, is subject to a lower level of scrutiny than other speech, although recently the court has taken steps to bring it closer to parity with other speech. This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company).

Limits placed on libel and slander have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v. Falwell made famous in the movie The People vs. Larry Flynt.

The Government Speech Doctrine establishes that the government may censor speech when the speech is its own, leading to a number of contentious decisions on its breadth.

Prior restraint

If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what's illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would "surely result in direct, immediate and irreparable damage to our Nation and its people" (New York Times Co. v. United States). U.S. courts have not permitted most prior restraints since the case of Near v. Minnesota in 1931.

Schools

In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended broad First Amendment protection to children attending public schools, prohibiting censorship unless there is "substantial interference with school discipline or the rights of others". Several subsequent ruling have affirmed or narrowed this protection. Bethel School District v. Fraser (1986) supported disciplinary action against a student whose campaign speech was filled with sexual innuendo, and determined to be "indecent" but not "obscene". Hazelwood v. Kuhlmeier (1988) allowed censorship in school newspapers which had not been established as forums for free student expression. Guiles v. Marineau (2006) affirmed the right of a student to wear a T-shirt mocking President George W. Bush, including allegations of alcohol and drug use. Morse v. Frederick (2007) supported the suspension of a student holding a banner reading "BONG HiTS 4 JESUS" at a school-supervised event which was not on school grounds. In Lowry v. Watson Chapel School District, an appeals court struck down a school dress code and literature distribution policy for being vague and in practice overly prohibitive of criticism against the school district.[2]

Such protections also apply to public colleges and universities. For example, student newspapers which have been established as forums for free expression have been granted broad protection by appeals courts.[3][4]

In Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), the Supreme Court of the United States held (in a unanimous decision) that the Free Speech Clause of the First Amendment was offended by a school district that refused to allow a church access to school premises to show films dealing with family and child-rearing issues faced by parents.

State action and lack thereof

A sign prompted by the Pruneyard case

A major issue in freedom of speech jurisprudence has been whether the First Amendment merely runs against state actors or whether it can run against private actors as well. Specifically, the issue is whether private landowners should be permitted to utilize the machinery of government to exclude others from engaging in free speech on their property (which means balancing the speakers' First Amendment rights against the Takings Clause). The right of freedom of speech within private shopping centers owned by others has been vigorously litigated under both the federal and state Constitutions. See Pruneyard Shopping Center v. Robins (1980).

Censorship

Main article: Censorship in the United States

While personal freedom of speech is usually respected, freedom of press and mass publishing encounter some restrictions. Some of the recent issues include:

  • United States military censoring blogs written by military personnel.
  • The Federal Communications Commission censoring television and radio, citing obscenity, e.g., Howard Stern and Opie and Anthony (Though the FCC only has the power to regulate over the air broadcasts and not cable or satellite television or satellite radio).

See also Roth v. United States

As of 2005, United States was ranked 44th of 167 countries in annual Worldwide Press Freedom Index by Reporters Without Borders. In the 2006 index the United States has fallen nine places and is now ranked 53rd of 168 countries. The US ranked 48th in 2007, however, moving back up 5 places.

Freedom of expression

While freedom of expression by non-speech means is commonly thought to be protected under the First Amendment, the Supreme Court has only recently taken this view. As late as 1968 (United States v. O'Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech. The Court carried this distinction between speech and expression through the early part of the 1980s (Clark v. CCNV, 1984). It was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means applied to freedom of expression and freedom of speech.

Freedom of speech on the Internet

In a rare 9-0 decision, the Supreme Court extended the full protection of the First Amendment to the Internet in Reno v. ACLU, a decision which struck down portions of the 1996 Communications Decency Act, a law intended to outlaw so-called "indecent" online communication (that is, non-obscene material protected by the First Amendment.) The court's decision extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet. Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). The Court again ruled that any limitations on the internet were unconstitutional in American Civil Liberties Union v. Ashcroft (2002).

In United States v. American Library Association (2003) the Supreme Court ruled that Congress has the authority to require public schools and libraries receiving e-rate discounts to install filters as a condition of receiving federal funding. The justices said that any First Amendment concerns were addressed by the provisions in the Children's Internet Protection Act that permit adults to ask librarians to disable the filters or unblock individual sites.

See also

References

  1. ^ "Personal Narratives from the Virtual Jamestown Project, 1575-1705". Etext.lib.virginia.edu. http://etext.lib.virginia.edu/etcbin/jamestown-browse?id=J1056. Retrieved 2008-09-06. 
  2. ^ http://www.aclu.org/freespeech/youth/36618prs20080902.html
  3. ^ http://www.aaup.org/AAUP/pubsres/academe/2005/SO/AW/RestrictSpeech.htm
  4. ^ http://www.aclu.org/freespeech/youth/35333prs20080401.html

Further reading

  • Eldridge, Larry (1994). A Distant Heritage: The Growth of Free Speech in Early America. New York: New York University Press. ISBN 0814721958. 
  • Chafee, Zechariah (2001) [1941]. Free speech in the United States. Union, NJ: Lawbook Exchange. ISBN 1584770856. 
  • Godwin, Mike (1998). Cyber Rights: Defending Free Speech in the Digital Age. New York: Times Books. ISBN 0812928342. 
  • Rabban, David M. (1999). Free Speech in Its Forgotten Years, 1870-1920. New York: Cambridge University Press. ISBN 0521655374. 
  • Tedford, Thomas L. (1985). Freedom of speech in the United States. Carbondale: Southern Illinois Univ. Press. ISBN 0394332563. 

Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America (NYU Press, 1994).

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