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Freedom of speech in the United States

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 advocation 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 also often made between speech and other acts, such as flag desecration, which may have symbolic significance.

Historical background

England

During colonial times, English speech regulations were rather restrictive. An English seditious libel law 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."

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.

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 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 ratified 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 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 Act was 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.

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 meet the rational basis test (the lowest level of scrutiny) and are usually upheld, unless their requirements have an especially burdensome impact on speech. 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 be:

Content neutral
A significant governmental interest
Narrowly tailored
Leave open ample alternative channels of 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.

Speech that presents imminent lawless action (earlier, the legal test was for a clear and present danger, but this test has since been replaced by the imminent lawless action test) may also be restricted. 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).

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.

Censorship

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).

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, nonobscene material protected by the First Amendment.) The court's decision identified the Internet as a "free speech zone," and extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet.

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.