Freedom of Speech

How is freedom of speech protected in the Constitution?

The First Amendment in the United States Constitution establishes freedom of expression, which covers verbal and nonverbal behaviors that express a person’s opinion, point of view, or identity. The Amendment states, “Congress shall make no law…abridging the freedom of speech”. Essentially, this provision prevents the government from making laws that restrict speech. While this amendment addresses Congress directly, courts have interpreted the Amendment to apply to the entire federal government. Additionally, Courts have ruled that the Due Process Clause of the 14th Amendment protects First Amendment rights from interference by state governments.

Why is freedom of speech important?

The Supreme Court has called freedom of speech, “the matrix, the indispensable condition, of nearly every other form of freedom”. The idea is that free speech lays the foundation for other constitutional freedoms, such as freedom of assembly, freedom of religion, and a free press. Freedom of speech is considered a fundamental human right because it enables people to express their thoughts and ideas without fear of retaliation, censorship, or legal sanction. Free speech in democratic societies fosters open public discourse and cultivates an enlightened citizenry. Moreover, free speech allows for societal change by providing a platform for protest and affording minority voices an opportunity to be heard. The absence of freedom of speech would make it easier for the government to censor and control ideas.

What are the potential drawbacks of free speech?

The potential drawbacks of freedom of speech include the spread of harmful, false, or offensive ideas. Hate speech, such as displaying symbols of past oppressions or wearing offensive language, is legal. Harmful speech, such as speech that incites violence or targets hatred toward other groups, poses a challenge for democracy. More generally, free speech means we may be exposed to ideas or expressions we disagree with or do not want to hear.

For example, in 2017, two groups protested an initiative by the town of Charlottesville, Virginia, to remove Confederate monuments (one in support and the other in opposition). Each group claimed that they were exercising their free speech rights. A second example occurred in 1977 in Skokie, Illinois, home to many Holocaust survivors, when a neo-Nazi group wanted to march through Skokie. The group claimed that the march was a matter of free speech.

The exercise of speech rights can become problematic when doing so creates a potentially hostile environment or when speech involves calls for violence. In the case of Charlottesville, while there were no widespread calls for outright violence, a car driven through a crowd of anti-monument protesters resulted in the death of one individual. Courts have ruled that governments can restrict speech if violence can reasonably be foreseen.

There are some arguments that intentionally hateful speech, such as the Skokie case, should be regulated. The power to sue for defamation may protect an individual from inaccurate attacks on their character. Still, there is no protection from hate speech that harms a person’s character and dignity.

The Charlottesville and Skokie examples frame the debate over limits on free speech. On the one hand, most people would approve of suppressing some especially offensive views. On the other hand, the ability to express opinions freely is fundamental to democracy. The government’s power to restrict hateful speech might also allow officials to silence valid criticisms of policy or even limit the ability of opposing political parties to contest elections.

What are the limits on free speech?

Over time, Supreme Court rulings have shaped our understanding of free speech. The Court has applied a standard called “strict scrutiny” to cases concerning freedom of speech, the highest standard of judicial review in which limitations on free speech are permissible only if they serve a compelling state interest.

Even with this requirement, several limits on speech have been established by laws and judicial decisions. These limits identify some exceptions to freedom of speech, such as obscenity, defamation, fraud, incitement, true threats, and speech that is a part of criminal conduct. Laws implementing these restrictions have been found to meet the standard of strict scrutiny.

Speech rights are also affected by where people choose to express them. For example, governments can require people who want to protest in a public space to get a permit. Authorities can also regulate noise levels at the event. Protesters are not allowed to limit access to businesses or to accost people walking by an event. Organizations and businesses have additional powers to limit speech by their employees during work hours or if they use their affiliation while speaking. Moreover, there is no right to protest on private property.

In some cases, the courts have applied the “direct incitement test,” in which threatening speech is protected unless that speech aims and is likely to cause “imminent lawless action.” This test was first created in Brandenburg v. Ohio when a Ku Klux Klan leader made a threatening speech at a cross-burning rally in 1964 that was later televised. In 1969, the Supreme Court overruled a state law prohibiting such speech, stating that speech cannot be suppressed simply because it sounds dangerous.

How has the exercise of free speech changed over time?  

The Supreme Court’s willingness to protect freedom of speech has ebbed and flowed along with national security interests. During World War I, Charles Schenck was arrested for encouraging people to resist the draft. In the 1919 Supreme Court case Schenck v. The United States, the court created the “clear and present danger test.” This test allowed the government to suppress speech deemed dangerous, such as yelling “fire!” in a crowded theater. In 1940, Congress passed the Smith Act that made it illegal to advocate for the violent overthrow of the government. This Act was used during the Red Scare, a movement against communism in the early 1950s, to arrest suspected communists in the United States. In 1951, the Supreme Court upheld the conviction of members of the Communist Party under the Smith Act, stating it did not violate the First Amendment.

Later cases have shifted in favor of protecting free speech. In 1969, the Brandenburg v. Ohio case created the direct incitement test and vastly expanded protections for free speech. The court’s willingness to uphold free speech is perhaps best exemplified in the 2011 case of Snyder v. Phelps. The facts of the case involved an incident where members of the Westboro Baptist Church protested the funerals of military members who died in the Middle East in 2006. The protest signs had vulgar language and stated that the deaths were punishments by God. Despite vast public outrage over the protests, the Supreme Court ruled in favor of the Westboro Baptist Church because the protesters were on public land and remained peaceful.

Other Supreme Court decisions have established protections for speech that involves behavior rather than words. For example, in the 1986 Johnson v. Texas decision, the Court ruled that flag burning, as an expression of opinion, was constitutionally protected speech.