Freedom of Speech

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Freedom of Speech

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.

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 U.S. Supreme Court examines whether the regulation restricts the content of the speech or merely regulates the time, manner, and place 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 also may be upheld if the expressive activity being regulated is of a type that is not entitled to full First Amendment protection, such as Obscenity.

Laws that regulate the time, manner, and place, 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, but only that the government's interest would be achieved less effectively without it (Ward v. Rock against Racism, 491 U.S. 781, 109S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).

An important distinction is drawn between public premises that serve as traditional public forums and those 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.

The Court reaffirmed in Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed.2d 783 (2002) that local governments do not violate the First Amendment when they require the obtaining of a permit before individuals can hold large-scale rally events in public parks. In this case, the Chicago Park District denied a rally permit to a group that had sought to hold a "Hempfest." The park district denied the permit because of violations of park rules at previous events run by the organizers. The group challenged the denial, arguing that the park district could use its unfettered discretionary power to deny permits to those who held unpopular or controversial political views, such as support for the legalization of marijuana. The U.S. Supreme Court held that the park district's ordinance was a constitutionally permissible "content-neutral" regulation of time, manner, and place. It was directed toward all activity in a public park, not just toward communicative or political activity. It did not constitute subject-matter Censorship in any way. The Court explained that the park district's object was to coordinate multiple uses of limited space; to assure preservation of park facilities; to prevent dangerous, unlawful, or impermissible uses; and to assure financial accountability for damages caused by an event.

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, 17L. Ed. 2d 149 (1966), the U.S. Supreme Court upheld the Trespass conviction of students who demonstrated on the grounds of a jail. Although jailhouse grounds are public property, they have not been used traditionally as public forums: "No less so than a private owner of property, the state 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, had 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's 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 had been 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."

With the increase of activity in cyberspace, individuals can distribute questionable speech throughout the U.S. and the world. In Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), a federal appeals court ruled that an anti-abortion web site was not protected by the First Amendment. The web site posted photos, names, addresses, and other information pertaining to Abortion providers, their family members, and others who were perceived as supporting abortion rights. Although neither the site nor the posters made explicit threats against the abortion providers, violence at clinics that provided abortions had followed poster distribution in the past. Planned Parenthood sued the group under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, and other laws. The trial judge instructed the jury that if the defendants' statements were "true threats," the First Amendment would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The Ninth Circuit stated that a jury could conclude that the postings constituted a true threat under FACE, which removed any First Amendment protection for the defendants.

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 that is furthered by the law in question. In O'Brien v. United States, 393U.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.

Since the 1980s, a number of laws have been passed that attempt to regulate or ban "hate speech," which is defined as utterances, displays, or expressions of racial, religious, or sexual bias. The U.S. Supreme 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, ruling that it unconstitutionally infringed free speech. The defendant in that case had been prosecuted for burning a cross on the lawn of an African-American family's residence.

The Minnesota Supreme Court held that the ordinance was limited to restricting conduct that amounted to Chaplinksky "fighting words." Therefore, the ordinance was not impermissibly content-based because it was "narrowly tailored" to further the "compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." The U.S. Supreme Court disagreed. Justice Antonin Scalia, in his majority opinion, wrote that, even assuming that the cross burning was proscribable under the "fighting words" doctrine, the ordinance was, on its face, unconstitutional. It violated the First Amendment because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses." Scalia agreed that the government may constitutionally proscribe content such as libel, but that it may not proscribe only libel that is critical of the government. In Scalia's view, the unprotected features of "fighting words" are their "nonspeech" element of communication. Thus, fighting words are like a noisy sound truck: each is a mode of speech, and both can be used to convey an idea, but neither has a claim on the First Amendment. The government cannot, however, regulate fighting words or a sound truck based on "hostility-or favoritism-towards the underlying message expressed."

In addition, the ordinance was not over-broad but underinclusive. The content limitation was impermissible because it displayed "the city council's special hostility towards the particular biases thus singled out." An ordinance not restricted "to the favored topics" would have the same effect the city desired, but without the discrimination against unpopular views. Justice Scalia also noted that the city could have prosecuted the defendant under traditional Criminal Law statutes, including Arson, trespass, and terroristic threats. In his view, the city had other means to address the problem "without adding the First Amendment to the fire."

This decision did not end the debate over hate crimes. The Court took up the issue again in Virginia v. Black, 538 U.S. 343, 123 S. Ct.1536. 155 L. Ed.2d 535 (2003). This case also involved a cross burning aimed at terrorizing an African-American family. A Virginia criminal statute had outlawed cross burning "on the property of another, a highway or other public place …with the intent of intimidating any person or group." In a 6-3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners.

Like fighting words, materials that are 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]). The Miller test 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.

The Seventh Circuit Court of Appeals ruled in Kendrick v. American Amusement Machine Association, 244 F.3d 572 (7th Cir. 2001) that a city ordinance that prohibited minors from playing violent or sexually explicit video arcade games was unconstitutional. The court noted that the city had not sought to regulate video games because they were "offensive" under Miller. Rather, the ordinance premised its restriction on the belief that violent fantasy video games led to real-world harm. The appeals court found no real difference between the content of the allegedly "violent" video games and generally available, unrestricted literature that depicted the same level of violence. They were both examples of "a children's world of violent adventures." The court, therefore, found that the ordinance impermissibly restricted minors' freedom of expression without any offsetting justification.

Prior Restraint

The Court uses a stringent standard when it evaluates statutes that impose a Prior Restraint on speech. The test that is 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 had been charged with violating the Espionage Act (Tit. 1, §§ 3, 4 [Comp. St. 1918, §§ 10212c, 10212d]) by distributing pamphlets that urged 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 U.S. Supreme 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 probably would 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 wrote 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 U.S. Supreme 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.

In Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed.2d 151 (2001), the U.S. Supreme Court ruled that a private Christian organization could not be denied use of the public school space for after-school activities. The Court emphasized that the Establishment Clause could not serve as a barrier to the organization's exercise of its free speech rights. Justice Clarence Thomas, in his majority opinion, addressed the freedom-of-speech argument. He noted that the school was a limited public forum and that the state therefore was not required to permit persons "to engage in every type of speech." However, the state's ability to restrict speech was not unlimited. In addition, the state could not discriminate against speech on the basis of viewpoint. Justice Thomas wrote that the school district decision had unlawfully imposed this requirement. He pointed to recent Court decisions that had forbidden states to prevent religious groups from using public facilities or to receive funding for an undergraduate organization.

Statutes that prohibit the desecration of the U.S. flag have been found to restrict free expression unconstitutionally. 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 had been a desire to suppress free expression and the content of the message that the act of flag burning conveys.

The U.S. Supreme Court has generally struck down prohibitions on nudity and other erotic, but nonobscene, expressive conduct. 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 generally has been considered protected expressive conduct, the justices pointed out that such activity is only marginally within the perimeter of First Amendment protection.

In City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the U.S. Supreme Court upheld a local Zoning ordinance that banned nude-dancing clubs within the city. It found that freedom of speech had not been unconstitutionally restricted because the ordinance did not ban the expressive conduct of nude dancing but only the means for expressing it within the city. It found that the city had good grounds for banning nude-dancing clubs; these were secondary effects on the community rather than the dancing itself. Therefore, the city had the authority to restrict the location of such clubs.

Commercial Speech

Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression. Generally, the First Amendment protects commercial speech that is not false or misleading and that does not advertise illegal or harmful activity. 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 U.S. Supreme Court held that a statute banning promotional advertising by Public Utilities was unconstitutional. That case set forth a "general scheme for assessing government restrictions on commercial speech." Commercial speech will be protected by the First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted government interest is not substantial; (3) the regulation does not directly advance the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest. The U.S. Supreme Court has struck down bans on drug advertising, (Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002) and tobacco advertising, Lorillard Tobacco Corp. v. Reilly,, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), using this test.

Defamation and Privacy

In new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. 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 had appeared in the New York Times were false, and he 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. It decided that, in order to recover damages, a public official must prove actual malice, which is knowledge that the statements were false or that they were made with reckless disregard of whether they were false.

Where the plaintiff in a Defamation action is a private citizen who is 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]).

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.


Broadcasting; Censorship; E-Mail; Fairness Doctrine; Freedom of the Press; Hate Crime; Movie Rating; Overbreadth Doctrine; Privacy; Roth v. United States; Symbolic Speech; X Rating.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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