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Freedom of speech in the United States

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The Newseum's five freedoms guaranteed by the First Amendment to the US Constitution.

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. The freedom is not absolute; the Supreme Court of the United States has recognized several categories of speech that are excluded from the freedom of speech, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.

Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy will be punished to the most fullest extent. There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance.

Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence.

First Amendment

The First Amendment to the United States Constitution codifies the freedom of speech as a constitutional right. The Amendment was adopted 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.

Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court used the incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from enacting such laws.

Early history

England

During colonial times, English speech regulations were rather restrictive. The English criminal common law of seditious libel made criticizing the government a crime. Chief Justink Hut, writing in 1704, explained the apparent need for the prohibition or 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 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.

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."[1]

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).

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, William Cosby. 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 of jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

First Amendment ratification

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.

Alien and Sedition Acts

Main article: Alien and Sedition Acts
See also: Espionage Act of 1917 and Sedition Act of 1918

In 1798, Congress, which contained several of the ratifiers of the First Amendment at the time, adopted the Alien and Sedition Acts. The laws 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 regarding 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 Acts were 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).

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 republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down. The primary exception to this rule would be within the context of the electoral process, whereby the Supreme Court has ruled that suffrage or standing for political office as a candidate are not political speech and thus can be subjected to significant regulations; such restrictions have been upheld in the Buckley v. Valeo case.

Commercial speech

Main article: 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) A June 2011 case casts doubt upon whether this category exists any more, or if it has been folded into the main category of speech. (Sorrell v. IMS Health)[2]

Expressive conduct

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. C.C.N.V., 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.

Types of speech restrictions

The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.

Content-based restrictions

Restrictions that require examining the content of speech to be applied must pass strict scrutiny.[citation needed]

Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court's special exceptions. An example of this is found in the United States Supreme Court's decision in Legal Services Corp. v. Velazquez in 2001. In this case, the Court held that government subsidies cannot be used to discriminate against a specific instance of viewpoint advocacy.

Time, place, or manner restrictions

The free speech zone at the 2004 Democratic National Convention

Freedom of speech is also sometimes limited to free speech zones, which can take the form of a wire fence enclosure, barricades, or an alternative venue designed to segregate speakers according to the content of their message. There is much controversy surrounding the creation of these areas — the mere existence of such zones is offensive to some people, who maintain that the First Amendment to the United States Constitution makes the entire country an unrestricted free speech zone.[3] Civil libertarians claim that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials.[3] The Department of Homeland Security under the Bush Administration "ha[d] even gone so far as to tell local police departments to regard critics of the War on Terrorism as potential terrorists themselves."[4][5]

Time, place, or manner restrictions must withstand intermediate scrutiny. 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:[citation needed]

  1. Be content neutral
  2. Be narrowly tailored
  3. Serve a significant governmental interest
  4. Leave open ample alternative channels for communication

Incidental burdens on speech

See United States v. O'Brien.

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.

Categorical exclusions

Main article: United States free speech exceptions

Incitement to crime

Speech that presents imminent lawless action was originally banned under the clear and present danger test established by Schenck v. United States, but this test has since been replaced by the imminent lawless action test established in Brandenburg v. Ohio. The canonical example, enunciated by Justice Oliver Wendell Holmes, is falsely yelling "Fire!" in a crowded movie theater (This example was authored in Schenck v. United States, but still passes the "imminent lawless action" test). 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.

Fighting words

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.[citation needed] Restrictions on hate speech have been generally overturned by the courts; such speech cannot be targeted for its content but may be targeted in other ways, if it involves speech beyond the First Amendment's protection like incitement to immediate violence or defamation.

True threats

See Watts v. United States, Virginia v. Black.

Obscenity

Obscenity, defined by the Miller test by applying contemporary community standards, is one exception. It is speech to which all 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.)

Child pornography

See New York v. Ferber.

Torts

Defamation

Limits placed on libel and slander attach civil liability and have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v. Falwell made famous in the movie The People vs. Larry Flynt. Making false statements in "matters within the jurisdiction" of the federal government is also a crime.

Invasion of privacy

See Time, Inc. v. Hill.

Intentional infliction of emotional distress

See Hustler Magazine v. Falwell, Texas v. Johnson.

Commercial speech

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).

Campaign contributions

See Buckley v. Valeo.

Government speech

The government speech doctrine establishes that the government may censor speech when the speech is its own, leading to a number of contentious decisions on its breadth.

Public employee speech

Statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline as per the case of Garcetti v. Ceballos. This applies also to private contractors that have the government as a client. The First Amendment only protects employees from government employers albeit only when speaking publicly outside their official duties in the public interest Pickering v. Board of Ed. of Township High School Dist. Speech is not protected from private sector disciplinary action.[6]

Student speech

Main article: School speech (First Amendment)
Original "BONG HITS FOR JESUS" banner now hanging in the Newseum in Washington, DC.

In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended broad First Amendment protection to children attending public schools, prohibiting censorship unless there is "substantial interference with school discipline or the rights of others". Several subsequent rulings have affirmed or narrowed this protection. Bethel School District v. Fraser (1986) supported disciplinary action against a student whose campaign speech was filled with sexual innuendo, and determined to be "indecent" but not "obscene". Hazelwood v. Kuhlmeier (1988) allowed censorship in school newspapers which had not been established as forums for free student expression. Guiles v. Marineau (2006) affirmed the right of a student to wear a T-shirt mocking President George W. Bush, including allegations of alcohol and drug use. Morse v. Frederick (2007) supported the suspension of a student holding a banner reading "BONG HiTS 4 JESUS" at a school-supervised event which was not on school grounds. In Lowry v. Watson Chapel School District, an appeals court struck down a school dress code and literature distribution policy for being vague and unnecessarily prohibitive of criticism against the school district.[7]

Such protections also apply to public colleges and universities. For example, student newspapers which have been established as forums for free expression have been granted broad protection by appeals courts.[8][9]

In Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), the Supreme Court of the United States held (in a unanimous decision) that the Free Speech Clause of the First Amendment was offended by a school district that refused to allow a church access to school premises to show films dealing with family and child-rearing issues faced by parents.

National security

Military secrets

Publishing, gathering or collecting national security information is not protected speech in the United States.[10] Information related to "the national defense" is protected even though no harm to the national security is intended or is likely to be caused through its disclosure.[11] Non-military information with the potential to cause serious damage to the national security is only protected from willful disclosure with the requisite intent or knowledge regarding the potential harm.[11] The unauthorized creation, publication, sale or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited.[12] The knowing and willful disclosure of certain classified information is prohibited.[13] The unauthorized communication by anyone of "Restricted Data", or an attempt or conspiracy to communicate such data, is prohibited.[14] It is prohibited for a person who learns of the identity of a covert agent through a "pattern of activities intended to identify and expose covert agents" to disclose the identity to any individual not authorized access to classified information, with reason to believe that such activities would impair U.S. foreign intelligence efforts.[15]

In addition to the criminal penalties, the use of employment contracts, loss of government employment, monetary penalties, non-disclosure agreements, forfeiture of property, injunctions, revocation of passports, and prior restraint are used to deter such speech.[16]

Inventions

The Voluntary Tender Act of 1917 gave the Commissioner of Patents the authority to withhold certification from inventions that might harm U.S. national security, and to turn the invention over to the United States government for its own use.[17][18] It was replaced in 1951 with the Invention Secrecy Act which prevented inventors from publishing inventions or sharing the information.[19] Both attached criminal penalties to subjected inventors.[20] The United States was under a declared state of emergency from 1950–1974, after which peacetime secrecy orders were available.[21][22][23]

The government issued between approximately 4100-5000 orders per year from 1959–1974, a peak of 6193 orders in 1991, and approximately 5200 per year between 1991-2003.[23] Certain areas of research such as atomic energy and cryptography consistently fall within their gamut.[24] The government has placed secrecy orders on cold fusion, space technology, radar missile systems, and Citizens Band radio voice scramblers, and attempts have been made to extend them to optical-engineering research and vacuum technology.[24]

Nuclear information

The Atomic Energy Act of 1954 automatically classifies "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy".[25] The government has attempted to censor publications regarding nuclear information in the Scientific American in 1950 and The Progressive in 1979.[26][25]

Weapons

Pub. L. 106–54 (text) (PDF) of 1999, a bill focused on phosphate prospecting and compensation due to the Menominee Indian Tribe, added 18 U.S.C. § 842(p) making it an offence "to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction" either intending or knowing that the learner/viewer intends "that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence."[27][28] This is in addition to other federal laws preventing the use and dissemination of bombmaking information for criminal purposes.[29] The law was first successfully used against an 18 year old anarchist in 2003, for distribution of information which has since been republished freely.[30]

Private actors

File:Pleasedonotcontributesign.jpg
A sign prompted by the Pruneyard case.

A major issue in freedom of speech jurisprudence has been whether the First Amendment merely runs against state actors or whether it can run against private actors as well. Specifically, the issue is whether private landowners should be permitted to utilize the machinery of government to exclude others from engaging in free speech on their property (which means balancing the speakers' First Amendment rights against the Takings Clause). The right of freedom of speech within private shopping centers owned by others has been vigorously litigated under both the federal and state Constitutions, notably in the case Pruneyard Shopping Center v. Robins.

Censorship

Main article: Censorship in the United States

While personal freedom of speech is usually respected, freedom of press and mass publishing meet with 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).

See also Roth v. United States

As of 2002, the United States was ranked 17th of 167 countries in annual Worldwide Press Freedom Index by Reporters Without Borders. "The poor ranking of the United States (17th) is mainly because of the number of journalists arrested or imprisoned there. Arrests are often because they refuse to reveal their sources in court. Also, since the 11 September attacks, several journalists have been arrested for crossing security lines at some official buildings." In the 2006 index the United States fell further to 53rd of 168 countries. "Relations between the media and the Bush administration sharply deteriorated after the president used the pretext of 'national security' to regard as suspicious any journalist who questioned his 'war on terrorism.' The zeal of federal courts which, unlike those in 33 US states, refuse to recognise the media’s right not to reveal its sources, even threatens journalists whose investigations have no connection at all with terrorism. The US improved to rank 48th in 2007, however, and 20th in 2010. "Barack Obama’s election as president and the fact that he has a less hawkish approach than his predecessor have had a lot to do with this."[31]

Internet speech

In a 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 that prohibited "indecent" online communication (that is, non-obscene material protected by the First Amendment). The court's decision extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet. Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). The Court again ruled that any limitations on the internet were unconstitutional in American Civil Liberties Union v. Ashcroft (2002).

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.

See also

References

  1. ^ "Personal Narratives from the Virtual Jamestown Project, 1575-1705". Etext.lib.virginia.edu. Retrieved 2008-09-06.
  2. ^ "Document - Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 180 L. Ed. 2d 544, 2011 ILRC 2067, 32 ILRD 281 (2011), Court Opinion". Bloomberg Law. Retrieved 2012-08-04.
  3. ^ a b Secret Service Ordered Local Police to Restrict Anti-Bush Protesters at Rallies, ACLU Charges in Unprecedented Nationwide Lawsuit. ACLU press release, 23 September 2003
  4. ^ Bovard, James. Quarantining dissent - How the Secret Service protects Bush from free speech The San Francisco Chronicle, 4 January 2004. Retrieved on 20 December 2006.
  5. ^ Cline, Austin. "Free Speech" Zones. About.com, 24 December 2003. Retrieved on 20 December 2006
  6. ^ "First Amendment Lawyer - Basic First Amendment & Censorship Information". Firstamendment.com. Retrieved 2012-08-04.
  7. ^ "Appeals Court Sides with ACLU, Finds Watson Chapel Students' Free Speech Rights Violated | American Civil Liberties Union". Aclu.org. 2008-09-02. Retrieved 2012-08-04.
  8. ^ Euben, Donna R. "Court Restricts Free Speech for College Students". AAUP. Retrieved 2012-08-04.
  9. ^ "Federal Court Says Ban on Alcohol-Related Advertising in College Publications Violates Free Speech | American Civil Liberties Union". Aclu.org. 2008-04-01. Retrieved 2012-08-04.
  10. ^ Protection of National Security Information (PDF), Congressional Research Service, 30 June 2006, p. 2
  11. ^ a b CRS 2006, p. 1.
  12. ^ CRS 2006, pp. 6–7.
  13. ^ CRS 2006, p. 7.
  14. ^ CRS 2006, p. 9.
  15. ^ CRS 2006, p. 10.
  16. ^ CRS 2006, p. 11-13.
  17. ^ Voluntary Tender Act, Pub. L. 65–80, 40 Stat. 394, enacted October 6, 1917
  18. ^ Donohue 2005, p. 274.
  19. ^ Donohue 2005, p. 275.
  20. ^ Donohue 2005, pp. 274–275.
  21. ^ Proclamation No. 2914, 15 FR 9029 (Dec. 19, 1950).
  22. ^ National Emergencies Act of 1976 (terminating "existing declared emergencies" two years after enactment of the Act).
  23. ^ a b Donohue 2005, p. 276.
  24. ^ a b Donohue 2005, p. 277.
  25. ^ a b Donohue 2005, p. 279.
  26. ^ United States v. The Progressive
  27. ^ Pub. L. 106–54 (text) (PDF), 113 Stat. 398, enacted August 17, 1999
  28. ^ Donohue 2005, pp. 285–286.
  29. ^ Donohue 2005, pp. 282–283.
  30. ^ Donohue 2005, p. 287.
  31. ^ "Press Freedom Index 2010 - Reporters Without Borders". En.rsf.org. Retrieved 2012-08-04.

Further reading

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