Freedom of speech in the United States

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 of speech is not absolute; the Supreme Court of the United States has recognized several categories of speech that are excluded from the freedom, 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 are almost always permitted. 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 over their works (copyright), protection from imminent or potential violence against particular persons, and restrictions on 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.

Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court held in Gitlow v. New York (1925) that under the incorporation doctrine, the Due Process Clause of the Fourteenth Amendment prohibits 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. Lord Chief Justice John Holt, writing in 1704–1705, explained the rationale for the prohibition: "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 the 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.^[2]

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

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 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 nevertheless 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).

Modern view

As a result of the jurisprudence of the Warren Court in the mid-to-late 20th century, the Court has moved towards a baseline default rule under which freedom of speech is generally presumed to be protected, unless a specific exception applies. Therefore, apart from certain narrow exceptions, the government normally cannot regulate the content of speech. In 1971, in Cohen v. California, Justice John Marshall Harlan II, citing Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of "a marketplace of ideas", while Associate Justice Thurgood Marshall cogently explained in 1972 that:

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [Citations.] To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' [Citation.]^[3]

.

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 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 Buckley v. Valeo.

Commercial speech

Not wholly outside the protection of the First Amendment is commercial speech, which is speech that "propose[s] a commercial transaction", as defined by Ohralik v. Ohio State Bar Assn. in 1978.^[4] Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. In 1980, Central Hudson Gas & Electric Corp. v. Public Service Commission held that restrictions of commercial speech are subject to a four-element intermediate scrutiny.^[5] Sorrell v. IMS Health Inc. (2011) casts doubt upon whether commercial speech still exists as a distinct type of speech.^[6]

Expressive conduct

Expressive conduct, also called "symbolic speech" or "speech acts", is nonverbal conduct that intends to communicate a message. Example include creating or destroying an object when performed as a statement (such as flag burning in a political protest), silent marches and parades intended to convey a message, clothing bearing meaningful symbols (such as anti-war armbands), body language, messages written in code, ideas and structures embodied as computer code ("software"), mathematical and scientific formulae, and illocutionary acts that convey by implication an attitude, request, or opinion.

The First Amendment generally protects expressive conduct.^[7][8] Seen in light of the First Amendment, computer code is a way to speak about how a problem is solved, using the precise terms a computer might be given as directions, and flag burning is a way to speak or express forcefully of one's views opposing the acts or political position of the relevant country.^[7][8] Significantly, the possibility exists for a single speech act to be protected or not depending upon context and intention. For example, there may be a First Amendment distinction between burning a flag in protest and the same act performed as mere wanton vandalism.^[7]

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.^[9]

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.

The Court pointed out in Snyder v. Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had delivered a different message under exactly the same circumstances: "A group of parishioners standing at the very spot where Westboro stood, holding signs that said 'God Bless America' and 'God Loves You,' would not have been subjected to liability. It was what Westboro said that exposed it to tort damages."

Time, place, and manner restrictions

Grayned v. The City of Rockford (1972) summarized the time, place, manner concept: "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."^[10] Time, place, and 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). Ward v. Rock Against Racism (1989) held that time, place, or manner restrictions must:^[11]

• Be content neutral
• Be narrowly tailored
• Serve a significant governmental interest
• Leave open ample alternative channels for communication

Freedom of speech is also sometimes limited to so-called 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 makes the entire country an unrestricted free speech zone.^[12] Civil libertarians often 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.^[12] 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."^[13][14]

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 be able to show that punishment after the fact is not a sufficient remedy, 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.

Despite this strong position against prior restraint, numerous laws have been enacted at the state level that restrict a doctor's speech on politically charged issues such as abortion, gun safety and industrial chemicals.^[15]

Exclusions

Inciting imminent lawless action

Speech that incites imminent lawless action was originally banned under the weaker 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, in Schenck, is falsely yelling "Fire!" in a crowded theater. This is an example of immediate harm.

Fighting words

Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment.^[16]

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. New York Times Co. v. Sullivan established the actual malice standard, a high bar for public figure plaintiffs. Making false statements in "matters within the jurisdiction" of the federal government is also a crime.

Invasion of privacy

See Time, Inc. v. Hill.

Political spending

Campaign contributions

See Buckley v. Valeo and McCutcheon v. Federal Election Commission.

Independent political expenditures

See Citizens United v. Federal Election Commission

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., updated and clarified by Lane v. Franks. Speech is not protected from private sector disciplinary action.^[17]

A number of cases consider speech is related to or required by an employer, or speech retaliated against by a third party such as an employer. The case Lane vs. Burrows (previously Lane vs. Franks) considers a number of these matters and summarizes the outcome. A person who testifies in a court, and where that testimony is not part of their employment duties, testifies as a citizen and has First Amendment protection, whereas a person whose speech is an actual part of their duties and is not merely related to their duties may have no such protection.^[18]

The issues raised in such cases include the overriding need for persons in court to feel safe to speak the truth, and to in fact speak the truth; the requirement of employers to be able to act in the event that an employee speaks in a manner damaging to the employer; the rights of whistleblowers; the benefit to society if people who know the reality of a matter and are well informed of it, are able to speak of it.

Student speech

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.^[19]

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.^[20][21]

National security

Military secrets

Publishing, gathering, or collecting national security information is not protected speech in the United States.^[22] 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.^[23] 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.^[23] The unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited.^[24] The knowing and willful disclosure of certain classified information is prohibited.^[25] The unauthorized communication by anyone of "Restricted Data", or an attempt or conspiracy to communicate such data, is prohibited.^[26] 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.^[27]

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.^[28]

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.^[29][30] It was replaced in 1951 with the Invention Secrecy Act which prevented inventors from publishing inventions or sharing the information.^[31] Both attached criminal penalties to subjected inventors.^[32] The United States was under a declared state of emergency from 1950–1974, after which peacetime secrecy orders were available.^[33][34][35]

The government issued between approximately 4,100 to 5,000 orders per year from 1959 to 1974, a peak of 6,193 orders in 1991, and approximately 5,200 per year between from 1991 to 2003.^[35] Certain areas of research such as atomic energy and cryptography consistently fall within their gamut.^[36] 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.^[36]

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".^[37] The government has attempted and failed to prohibit publication of nuclear information, including bomb design, in Scientific American in 1950 and The Progressive in 1979.^[38][37]

Weapons

Pub.L. 106–54 of 1999, a bill focused on phosphate prospecting and compensation owed to the Menominee 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".^[39][40] This is in addition to other federal laws preventing the use and dissemination of bombmaking information for criminal purposes.^[41] The law was first successfully used against an 18-year-old anarchist in 2003, for distribution of information which has since been republished freely.^[42]

Private actors

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 use 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 cases Lloyd Corp. v. Tanner (1972) and Pruneyard Shopping Center v. Robins (1980).

Censorship

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 (FCC) 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

• Scientology suppressing criticism, citing freedom of religion, e.g., Keith Henson
• Censoring of WikiLeaks at the Library of Congress

Currently the United States is ranked 57th out of 181 countries in the annual Worldwide Press Freedom Index by Reporters Without Borders.

In 2002, the United States was ranked 17th of 167 countries in the same report. "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 September 11 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; indeed, "relations between the media and the Bush administration sharply deteriorated" as it became suspicious of journalists who questioned the "War on Terrorism". The zeal of federal courts which, unlike those in 33 U.S. states, refuse to recognize the media's right not to reveal its sources, even threatened journalists whose investigations did not pertain to terrorism. The United States improved, moving up to 48th place in 2007, however, and to 20th in 2010.^[43]

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 that 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 Content-control software 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

Further reading

• Eldridge, Larry (1994). A Distant Heritage: The Growth of Free Speech in Early America. New York: New York University Press. ISBN 0-8147-2195-8. 
• Chafee, Zechariah (2001) [1941]. Free speech in the United States. Union, NJ: Lawbook Exchange. ISBN 1-58477-085-6. 
• Godwin, Mike (1998). Cyber Rights: Defending Free Speech in the Digital Age. New York: Times Books. ISBN 0-8129-2834-2. 
• Rabban, David M. (1999). Free Speech in Its Forgotten Years, 1870–1920. New York: Cambridge University Press. ISBN 0-521-65537-4. 
• Tedford, Thomas L. (1985). Freedom of speech in the United States. Carbondale: Southern Illinois Univ. Press. ISBN 0-394-33256-3. 
• Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America (NYU Press, 1994).
• Donohue, Laura K (2005). "Terrorist Speech and the Future of Free Expression" (PDF). Cardozo Law Review. 27 (1): 234–341. 

External links

• A Time for Censorship, a Time for Freedom – Americans' freedom of speech within the internet and how it is being put in jeopardy.
• First Amendment Library entry on Freedom of Expression (links to all of the Supreme Court's free expression cases)
• Congressional Research Service (CRS) Reports regarding Freedom of Speech