Freedom of Speech

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Freedom of Speech
Congress shall make no law . . . abridging the freedom
of speech....
— First Amendment to the U.S. Constitution
 

If there is one right prized above all others in a democratic society, it is freedom of speech. The ability to speak one's mind, to challenge the political orthodoxies of the times, to criticize the policies of the government without fear of recrimination by the state is the essential distinction between life in a free country and in a dictatorship. In the pantheon of the rights of the people, Supreme Court Justice Benjamin Cardozo, who served from 1932 to 1938, wrote of free speech that it is "the matrix . . . the indispensable condition of nearly every other freedom."

If Americans assume that free speech is the core value of democracy, they nonetheless disagree over the extent to which the First Amendment protects different kinds of expression. Does it, for example, protect hate speech directed at particular ethnic or religious groups? Does it protect "fighting words" that can arouse people to immediate violence? Is obscene material covered by the First Amendment's umbrella? Is commercial speech — advertisements or public relations material put out by companies — deserving of constitutional protection? Over the last several decades, these questions have been part of the ongoing debate both within the government and in public discussion, and in many areas no consensus has yet emerged. That, however, is neither surprising nor disturbing. Freedom is an evolving concept, and, as we confront new ideas, the great debate continues. The emergence of the Internet is but the latest in a series of challenges to understanding what the First Amendment protection of speech means in contemporary society.

Freedom of speech was not always the all-encompassing right it is today. When Sir William Blackstone wrote his famous Commentaries on the Laws of England in the mid-18th century, he defined freedom of speech as the lack of prior restraint. By that he meant that the government could not stop someone from saying or publishing what he believed, but once a person had uttered those remarks, he could be punished if the type of speech was forbidden. The English, like the ancient Greeks, had established legal restrictions on three types of speech — sedition (criticism of the government), defamation (criticism of individuals), and blasphemy (criticism of religion) — each of which they called "libels." Of these three, the one that is most important in terms of political liberty is seditious libel, because ruling elites in Blackstone's era believed that any criticism of government or of its officials, even if true, subverted public order by undermining confidence in the government. While the government, according to Blackstone, could not stop someone from criticizing the government, it could punish him once he had done so.

During the 17th and 18th centuries, the British Crown prosecuted hundreds of cases of seditious libel, often imposing draconian penalties. When William Twyn declared that the people had the right to rebel against a government, he was arrested and convicted of sedition and of "imagining the death of the King." The court sentenced him to be hanged, emasculated, disemboweled, quartered, and then beheaded. Given the possibility of such punishment after publication, the lack of prior restraint meant little.

The English settlers who came to North America brought English law with them, but early on a discrepancy arose between theory and practice, between the law as written and the law as applied. Colonial assemblies passed a number of statutes regulating speech, but neither the royal governors nor the local courts seemed to have enforced them with any degree of rigor. Moreover, following the famous case of John Peter Zenger (discussed in the chapter on "Freedom of the Press"), the colonists established truth as a defense to the charge of seditious libel. One could still be charged if one criticized the government or its officials, but now a defendant could present evidence of the truth of the statements, and it would be up to a jury to determine their validity.

From the time the states ratified the First Amendment (Congress shall make no law abridging the freedom of speech, or of the press�) in 1791, until World War I, Congress passed but one law restricting speech, the Sedition Act of 1798. This was an ill-conceived statute that grew out of the quasi-war with France and which expired three years later. Yet although this act has been widely and properly condemned, one should note that it contained truth as a defense. During the American Civil War of 1861-1865, there were also a few minor regulations aimed at sedition, but not until the Espionage Act of 1917 and the Sedition Act of 1918 did the real debate over the meaning of the First Amendment Speech Clause begin. That debate has been public and has involved the American people, Congress, and the President, but above all it has been played out in the courts.

The first cases to reach the Supreme Court grew out of these wartime measures aimed against disruption of the military as well as criticism of the government, and the Court initially approved them. The justices seemed to say that while freedom of speech is the rule, it is not absolute, and at certain periods — especially in wartime — speech may be restricted for the public good.

 Holmes's test of a "clear and present danger" seemed to make a great deal of sense. Yes, speech ought to be free, but it is not an absolute freedom; common sense (the obvious need to punish someone who shouts the word "fire" in a crowded theater) as well as the exigencies of war make it necessary at times to curtail speech. The clear-and-present-danger test would be used in one way or another by the courts for nearly 50 years, and it seemed a handy and straightforward test to determine when the boundaries of speech had been overstepped. But there were problems with the test from the start, and the tradition of free speech in the United States was so strong that critics challenged the government's campaign against antiwar critics as well as the Court's approval of it.

One of the great voices in the history of free speech belonged to a mild-mannered Harvard law professor, Zechariah Chafee, Jr., the scion of a rich and socially prominent family who throughout his life defended the right of all people to say what they believed without fear of governmental retaliation. He suggested what to many people then and now is a radical idea-that free speech must be kept free even in wartime, even when passions are high, because that is when the people need to hear both sides of the argument, not just what the government wishes to tell them.

Chafee had made this argument earlier in articles, and, following Holmes's decision in Schenck, met with the jurist and convinced him that he had been wrong. When another sedition case came before the Court later that year, a majority used the clear-and-present-danger test to find the defendants guilty of seditious libel. But surprisingly, the author of that test, joined by his colleague, Justice Louis D. Brandeis, entered a strong dissent.

 Holmes's dissent in the Abrams case is often seen as the beginning of the Supreme Court's concern with speech as a key right in democratic society, and it put forward the notion of democracy as resting upon a free marketplace of ideas. Some ideas may be unpopular, some might be unsettling, and some might be false. But in a democracy, one has to give all of these ideas an equal chance to be heard, in the faith that the false, the ignoble, the useless will be crowded out by the right ideas, the ones that will facilitate progress in a democratic manner. Holmes's marketplace analogy is still admired by many people, because of its support for intellectual liberty.

The "marketplace of ideas" theory also relates to one of the foundations of democracy, the right of the people to decide. Two centuries ago, Thomas Jefferson based his belief in democracy upon the good judgment of the people to choose for themselves what would be the right thing to do. The people, and not their rulers, should decide the major issues of the day through free discussion followed by free elections. If one group is prevented from expressing their ideas because these notions are offensive, then the public as a whole will be deprived of the whole gamut of facts and theories that it needs to consider in order to reach the best result.

Neither Holmes nor anyone else has suggested that there are no limits on speech; rather, as we shall soon see, much of the debate in the last several decades has been over how to draw the line between protected and non-protected speech. At the heart of the debate has been the question, "Why should we extend the umbrella of constitutional protection over this type of speech?" The one area in which there has been general consensus is that whatever else the First Amendment Speech Clause covers, it protects political speech. It does so because, as Jefferson and Madison so well understood, without free political speech there can be no democratic society. The rationale for this view, and what remains as perhaps the greatest exposition of free speech in American history, is the opinion Louis D. Brandeis entered in a case involving a state seditious libel law.

A majority of the Court, using the clear-and-present-danger test, upheld California's seditious libel law as constitutional because, it held, the state has the power to punish those who abuse their right to speech "by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." Brandeis, along with Holmes, disagreed, and in his opinion Brandeis drew the lines that connected the First Amendment to political democracy, and in fact made it, as Cardozo later wrote, "the indispensable condition" of other freedoms.

To Brandeis, the most important role in a democracy is that of "citizen," and in order to carry out the responsibilities of that role a person has to participate in public debate about significant issues. One cannot do that if he or she is afraid to speak out and say unpopular things; nor can one weigh all of the options unless other people, with differing views, are free to express their beliefs. Free speech, therefore, is at the heart of the democratic process.

This truth seems so self-evident that one might wonder why it is not universally accepted even in the United States; the reasons are not hard to find. It takes civic courage to stand up for unpopular ideas, and as both Holmes and Brandeis pointed out, the majority rarely wants to hear ideas that challenge accepted views. To prevent the majority from silencing those who oppose it is the reason the Framers wrote the First Amendment. The principle of free thought, as Holmes famously wrote, is "not free thought for those who agree with us but freedom for the thought we hate."

This is not an easy concept, and in times of stress such as war it is often difficult to allow those who would assault the very foundations of democracy to use democratic tools in their attack. Certainly the lessons Holmes and Brandeis tried to teach seemed to be lost during the early years of the Cold War. In the late 1940s the government prosecuted leaders of the American Communist Party for advocating the forceful overthrow of the government and conspiring to spread this doctrine. A majority of the U.S. Supreme Court, which since the 1920s had seemed to take an ever more speech-protective view of the First Amendment, now apparently reversed itself. Though admitting that American communists posed little clear and present danger, the Court ruled their words represented a "bad tendency" that could prove subversive of the social order.

Just as Holmes and Brandeis had come to the defense of unpopular socialists a generation earlier, so now Hugo Black and William O. Douglas took their places as defenders of free expression and protectors of minority rights.

As the hysteria of the Cold War passed, Americans came to see the wisdom in the arguments that Holmes and Brandeis, and later Black and Douglas, put forth. The cure for "bad" speech is not repression, but "good" speech, the repelling of one set of ideas by another. Truly, many things believed right and proper in today's world were once considered heretical, such as the abolition of slavery or the right of women to vote. Although a majority will always find itself uncomfortable with radical ideas attacking its cherished beliefs, as a matter of constitutional law, the policy of the American democracy is that speech, no matter how unpopular, must be protected. In 1969, the Court finally put an end to the whole idea of seditious libel, and that people could be prosecuted for advocating ideas the majority condemned as subversive.

During the height of the protest against American involvement in Vietnam, many civil libertarians wondered if the fact that the United States was at war would once again let loose forces of repression, as had happened in World War I and during the Cold War. To the surprise of many who feared the worst, the country took the protests in stride. This is not to say that all Americans liked what the protesters were saying, or that they did not wish that some of them could be silenced or even jailed. Rather, they accepted the notion that in a democracy people had the right to protest — loudly, in some cases in a vulgar manner, but that in the great debate taking place over whether the United States should be in southeast Asia, all voices had to be heard.

Thirteen-year-old Mary Beth Tinker and other students wore black armbands to high school in Des Moines, Iowa, as a symbol of their opposition to the war in Vietnam, and school authorities suspended them, on grounds that the action disrupted the learning process. In fact no disruption had taken place; rather, school officials worried about the town's response if it appeared that they were permitting antiwar protests in the school.

In one of the most important cases that grew out of the war, the Supreme Court held that when it came to political speech, high school students did not lose their constitutional rights when they entered the school door. Rather, if schools are indeed the training ground for citizenship, then it is necessary that students have the opportunity to learn that they also have the right to express unpopular political views and not be punished by the school authorities.

Years later, opponents of a different administration's foreign policy burned an American flag in protest, and were immediately arrested. They pursued their legal defense in this case all the way to the Supreme Court, which held that their action, reprehensible as it was to most Americans, nonetheless represented "symbolic political speech" and as such was protected by the First Amendment. Perhaps the most interesting opinion in that case is one by a conservative member of the Court, Anthony Kennedy, who explained why he believed the Court had to allow the flag-burner to go free, even though he along with millions of Americans found the act distasteful.

 Although there was a hue and cry over the decision, it died down over time, as voices of common sense began to be heard. And none was more poignant in its defense of free speech than that of James H. Warner, a former prisoner of war in Vietnam.

The lesson Justice Brandeis taught more than 80 years ago has borne fruit-the response to bad speech is more speech, so that people may learn and debate and choose.

If the people in general accept the notion of untrammeled political speech, what about other forms of expression? Is the First Amendment prohibition absolute, as Justice Hugo Black (on the Court between1937 and 1971) argued, so that government cannot censor or punish any form of speech? Or are certain types of speech outside the umbrella coverage of the Speech Clause? May the writer or artist or business person, the bigot or protester or Internet correspondent say anything, no matter how offensive or unsettling, claiming protection of the Constitution? There are no easy answers to these questions. There is no public consensus, nor are there definitive rulings by the Supreme Court in all areas of speech. As public sentiments change, as the United States becomes a more diverse and open society, and as the new electronic technology permeates every aspect of American life, the meaning of the First Amendment appears to be, as it has so often been in the past, once again in flux, especially in relation to non-political speech.

In the early 1940s the Supreme Court announced in rather definitive terms that the First Amendment did not cover obscene or libelous speech, fighting words, or commercial speech. Yet in the last few decades it has addressed all of these issues, and while not extending full protection, has certainly brought many aspects under the protection of the Speech Clause. The decisions have not been without criticism, and it is safe to say that just as the Court has wrestled with these areas, so there has been confusion and disagreement in the sphere of public comment as well. This, again, is as it should be. The Supreme Court cannot hand down dicta and simply expect the people to obey. Rather, the Court often reflects changing social and political customs; while trying to discover what the original intent of the Framers may have been, the justices must also attempt to apply the spirit of that intent to the facts of modern life. Sometimes this is relatively easy to do, but even when the Court hands down a difficult and controversial opinion, such as in the flag burning case, there must be some reservoir of public understanding as to why this decision is necessary and how it fits into the broader tapestry of contemporary life.

The difficult question for the Court and for the people is where one draws the line between protected and non-protected speech. In some areas, such as obscenity, the effort to draw a legal distinction has not garnered public support, because obscenity itself is not an objective and easily defined subject. As the Court noted, one man's obscenity is another's lyric; what offends one person may not offend another. But is this the type of material the First Amendment was intended to protect? Is artistic expression, especially when it goes against current aesthetic or moral norms, the type of expression the Frames intended the First Amendment to protect?

Similarly, there has been debate in the United States for more than two decades about the allegedly corrosive effect that money has on the electoral process. There have been several efforts to control how money for election campaigns is raised and spent, and to impose limits on the amount that any one contributor could give. But the Supreme Court held years ago that money is in some ways speech, and when money is used to further the expression of political ideas, it cannot be controlled. Here one finds another area in which it is not clear just how far one can take the notion of free speech without running head-on into other and equally cherished concepts of democracy, such as fair elections.

Perhaps the most daunting task facing the American people as well as the judicial system is to determine how the First Amendment will apply to the new electronic technology. Is the Worldwide Web just another example of Justice Holmes's marketplace of ideas? Does the likelihood that some day every household in the world will have access to material already on the Web, and that each individual will have the opportunity to go online and say to the whole world what he or she wants make the First Amendment irrelevant?

These and other questions continue to be debated in the United States — in the courts, in congressional hearings, in presidential commissions, in universities, in public forums, and in individual households. Among the rights of the people none is so treasured as that of free speech, and none is so susceptible to changing views. Most Americans recognize, however, that as Justice Brandeis pointed out, their responsibilities as citizens require them to have the opportunity not only to propose unpopular views but also to hear others espouse their beliefs, so that in the end the democratic process can work. And while people are not always comfortable with the idea, they admit the truth that Justice Holmes declared when he said that the First Amendment is there not to protect the speech with which we agree, but the speech that we hate.

Lee C. Bollinger & Geoffrey R. Stone, Eternally Vigilant: Free Speech in the Modern Era (Chicago: University of Chicago Press, 2002).

Zechariah Chafee, Jr., Free Speech in the United States (Cambridge: Harvard University Press, 1941).

Michael Kent Curtis, Free Speech: The People's Darling Privilege (Durham: Duke University Press, 2000).

Harry Kalven, A Worthy Tradition: Freedom of Speech in America (New York: Harper & Row, 1988).

Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993).