Free Speech (Supreme Court Drama)

The First Amendment says "Congress shall make no law . . . abridging the freedom of speech." Along with the First Amendment freedoms of religion, assembly, and the press, the freedom of speech is part of the larger freedom of expression. It is the right to think, believe, and learn what we want, share our thoughts with others, and listen to what others have to say.

Throughout history governments have restricted the freedom of speech. They feared that the free flow of ideas would threaten their power and lead to social disorder. In 1621 free speech restrictions in England by King James I led Parliament to issue a declaration of freedoms. During the French Revolution in 1789, the French Declaration of the Rights of Man included the freedom of expression. When Americans drafted a Bill of Rights for the new U.S. Constitution in 1789, this history influenced them to include the freedom of speech in the First Amendment. (Adopted in 1791, the Bill of Rights contains the first ten constitutional amendments.)

The Bill of Rights applies only to the federal government, so state governments did not have to recognize freedom of speech for a long time. Then in 1868, after the American Civil War (18615) ended, the United States adopted the Fourteenth Amendment. Part of it says states may not "deprive any person of life, liberty, or property without due process of law." In Gitlow v. New York (1925), the U.S. Supreme Court decided that free speech is a "liberty" that is protected by the Fourteenth Amendment. Because of this, state governments today must allow freedom of speech.

The arguments for free speech

The U.S. Constitution protects free speech for many reasons. Free speech is essential for people to develop as individuals. It allows people to learn and explore what they want, which allows each person to be unique and special. It also spreads knowledge to more people, which helps Americans become better informed.

Free speech is also essential to the U.S. form of government. The United States's political leaders are elected by the people. Citizens could not make intelligent decisions on election day if they could not learn about the various candidates. Free speech also helps Americans stay informed about what their political leaders are doing, both good and bad.

Finally, free speech is essential for social change. For example, slavery was legal when the United States was formed. It took decades of discussion about the evils of slavery to spark the American Civil War, which ended slavery. If the government had been allowed to stop people from talking about the evils of slavery, it might have taken even longer to build a strong opposition.

Many types of speech

Supreme Court cases deal with three kinds of speech: pure, symbolic, and speech plus conduct. Pure speech is the most basic kind of First Amendment speech. It covers words that are written or spoken. Pure speech includes books, magazines, newspapers, radio, television, the Internet, motion pictures, public speeches, and much more. Pure speech is so important that the First Amendment prevents the government from regulating it based on its content, meaning the message it contains. For example, a state could not pass a law preventing people from writing books about legal ways to avoid taxes.

This is true even when speech is hateful or offensive. For example, in Brandenburg v. Ohio (1969), the Ku Klux Klan held a rally to protest against the federal government. During the rally, Klansmen shouted racist language about African Americans and said all Jews should be sent to Israel. Although the language was offensive, the Supreme Court said it was protected by the constitutional guarantee of freedom of speech. In the 1990s laws designed to prevent hate crimes often violated the First Amendment by prohibiting such hateful speech.

The second kind of speech is symbolic speech. Neither written nor spoken, symbolic speech involves action that is meant to convey a message. For example, in Tinker v. Des Moines Independent Community School District (1969), the Supreme Court decided that students who wore black armbands to school to protest the Vietnam War (1954-1975) were exercising their right to free speech.

The most controversial cases concerning symbolic speech have involved the American flag. In 1898 Pennsylvania started a trend by passing a law that made it a crime to damage the American flag. Other states followed with their own laws, including laws about other flags. In 1919 opposition to communism led California to pass a law banning displays of red-colored flags. In Stromberg v. California (1931), the Supreme Court overturned the law, saying it violated the right to engage in symbolic speech. It was not until Texas v. Johnson (1989), however, that the Court finally decided that flag burning is a form of symbolic speech protected by the First Amendment. The Court said that government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

The third kind of speech is called speech plus conduct. It combines the exercise of free speech with some course of conduct. This makes it hard to distinguish from symbolic speech. For instance, United States v. O'Brien (1968) involved Vietnam War opponents who burned their military draft cardsocuments they were required to carry in preparation for being called into military service. The Supreme Court said that even though the protesters were exercising free speech, the government could outlaw the conduct of burning draft cards. The protesters still could oppose the military draft with other forms of speech.

No coverage for obscenity

Some speech is not protected by the First Amendment. Obscenity has little value and does not meaningfully contribute to the free flow of ideas. Obscenity, however, is hard to define. It generally means material of a sexual nature that is offensive. But different people are offended by different things. For example, some people would be offended by an artist's painting of nude people having sex, while others would consider the painting to have artistic value. To handle obscenity cases, the Supreme Court decides whether the material is sexually offensive and lacks literary, artistic, political, or scientific value. If so, the material is not protected by the First Amendment.

Fighting words also are not covered by the right to freedom of speech. Chaplinsky v. New Hampshire (1942) concerned a Jehovah's Witness who created a public disturbance by calling a city marshal a "damned racketeer" and a "damned Fascist." Chaplinsky was convicted under a state law making it a crime to call another person offensive names in public. The Supreme Court decided the conviction did not violate the freedom of speech guarantee. It said the First Amendment does not protect "fighting words," words that by themselves tend to cause injury or an immediate breach of the peace.

Not an absolute freedom

The First Amendment says Congress shall make "no law" interfering with free speech. Some people think "no law" means what it says, that government cannot pass any laws that interfere with free speech. Most people, however, do not think "no law" means "no law." Instead, they believe government can interfere with speech to serve an important governmental purpose.

The Supreme Court agrees with the latter view, that the freedom of speech is not absolute. The Court has not, however, been able to create a consistent test for determining whether a law violates freedom of speech. Instead, it has created many tests over the years to handle different situations. The best one can do to understand freedom of speech is to study some of these tests.

Clear and present danger test

In U.S. history, federal and state governments have passed sedition laws to prevent people from speaking against the government. Sedition laws were designed to foster respect for the government and to prevent people from starting a violent revolution. In Schenck v. United States (1919), the U.S. Supreme Court decided whether the federal Sedition Act of 1918 violated freedom of speech. Passed during World War I (19148), the Sedition Act made it a crime to say anything to cause disrespect for the U.S. government.

Schenck, the secretary of the Socialist Party in America, was convicted under the Sedition Act for distributing pamphlets urging people to resist the military draft. The Supreme Court ruled that Schenck's conviction did not violate freedom of speech. In the Court's decision, Justice Oliver Wendell Holmes, Jr., made a famous observation about freedom of speech. He said free speech is not absolute because a person is not allowed to shout "fire" in a crowded theater when there is no fire. In other words, the government may punish words that create a "clear and present danger" of causing evils the government has a right to prevent. Because Congress had a right to stop people from avoiding the military draft, punishing Schenck for encouraging such conduct did not violate the First Amendment.

It is important to realize that sedition laws usually are enacted during times of great national stress, such as war. Generally, the First Amendment says government may not prevent people from speaking against war.

A balancing act

Besides protecting itself, government has many other reasons to pass laws that restrict speech. Often it is trying to protect a societal interest, such as a defendant's right to a fair trial or the public's interest in fair elections. If the Supreme Court finds the interest compelling, meaning very important, it will balance the interest against freedom of speech to decide which is more important. Sometimes it asks if the government has restricted speech as little as necessary to serve the compelling interest. The balancing test makes it hard to predict which way the Court will rule in a particular case.

For instance, in Ward v. Rock Against Racism (1989), Rock Against Racism began holding concerts in New York's Central Park in 1979. After people complained about the volume, New York City's government decided to require bands to use a sound system and sound engineer approved by the city so it could control the noise. Rock Against Racism filed a lawsuit saying that stopping the bands from using their own equipment and engineers violated freedom of speech. They said it prevented bands from making the music sound the way they wanted. The Supreme Court balanced the freedom of speech against the city's interest in controlling noise to rule in favor of New York City.

Commerce, jails, and schools

The government does not always have to show a compelling interest to restrict speech. The Supreme Court has decided that certain categories of speech deserve less protection than others. For a long time, commercial speech, such as advertising, did not receive any protection. Today the Court says commercial speech is protected by the First Amendment. Government, however, can regulate commercial speech as long as it does not stop it.

Speech in prison also receives less First Amendment protection. The Supreme Court says that government has an interest in maintaining order in jails. It also says criminals have given up the full right to free speech by breaking the law. This means the government can restrict speech in jails more than out in public.

The same thing happens in schools. The Supreme Court has ruled that students do not give up their freedom of speech by going to school. Schools, however, have an interest in maintaining order and discipline while teaching good values. This means schools can restrict speech more than other settings. For example, in Bethel School District No. 403 v. Fraser (1986), a high school student named Matthew Fraser gave an assembly speech nominating a fellow student for class vice president. He described the student using language that had a double meaning that referred to sexual intercourse.

Bethel High School suspended Fraser for using language that was obscene. The U.S. Supreme Court ruled that the suspension did not violate the right to freedom of speech, even though Fraser would have been free to speak as he did outside school or in another place. The Court said, "A high school assembly or classroom is no place for a sexually explicit monologue." The school was allowed to enforce the "fundamental values of public school education."

Time, place, and manner restrictions

Restrictions on speech in public are much less severe. In fact, the Supreme Court has ruled that government must allow people to exercise free speech in public places. Cities, for example, cannot prohibit speech in parks, on sidewalks, or in other areas where people traditionally gather to express themselves.

Government, however, is allowed to regulate speech for public convenience and safety. In Cox v. New Hampshire (1941), sixty-eight Jehovah's Witnesses were convicted for marching in a parade without getting a permit. They argued that the permit requirement violated their freedom of speech. The Supreme Court disagreed. It said that as long as government issues permits fairly to all persons, government may control the time, place, and manner of free speech for public convenience and safety. This rule, for example, allows the government to prevent someone from using a loudspeaker on neighborhood streets in the middle of the night.