Freedom of speech

Freedom of speech is often regarded as an integral concept in democratic governance. According to these ideas, when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech--to avoid accountability.

Alternatively, it may be argued that some restrictions on freedom of speech may be compatible with democracy or necessary to protect it. For example, such arguments are used to justify restrictions on support of Nazi ideas in Germany.

As Tocqueville pointed out, people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. This type of suppression of speech is even more difficult to prevent than government suppression is.

See also: Freedom of speech (Canada)

Free speech in the United States

In the United States freedom of speech is protected by the First Amendment to the United States Constitution. Through Supreme Court decisions and popular usage it has come to be associated with freedom of expression. Some argue that this linkage is necessary, as the purpose of speech is to express ideas, and ideas can be expressed through non-speech methods of communication as well. Others argue that substituting freedom of expression blurs the distinction between meaningful debate and (sometimes prurient) entertainment. Under a freedom of expression approach, for example, erotic dancing[?] is likely to gain greater legal protection than it would under a free speech approach. The United States Supreme Court frequently uses the SLAPS test, under which speech or expression can only be banned if it lacks serious literary, artistic, political or scientific value.

One exception to the broadening of freedom of speech to freedom of expression in the United States is in the realm of advertising. This "business expression" is still subject to greater restrictions than political, social, or artistic expression.

Prior Restraints on Speech

"Prior restraints" are governmental restrictions on speech that regulate speech or expression before it ever occurs. These governmental restrictions typically come in the form of administrative or judicial regulations. Some common examples of prior restraints are laws which require one to obtain a license or permit prior to engaging in certain forms of expression (e.g. protests or rallies) and court injunctions prohibiting certain communications before their occurrence (e.g. gag orders). The Supreme Court has labeled prior restraints on speech and publications as "the most serious and the least tolerable infringement[s] on First Amendment rights" because they have "an immediate and irreversible sanction," which has the effect of "freezing" speech.1 Because of their potential adverse effects on freedom of expression, prior restraints are viewed by the Supreme Court as "bearing a heavy presumption against [their] constitutional validity."2 In spite of this presumption, however, the Court has made it clear that when faced with a prior restraint, one is bound to follow the law or court order unless it is "transparently invalid or [has] only a frivolous pretense to validity."3

(1) Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). (2) Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 78 (1963). (3) Walker v. City of Birmingham, 388 U.S. 307, 315 (1967).

A Historical Background on Freedom of Speech

1. Reaction Against English Restrictions

The origin of the First Amendment was undoubtedly a reaction against the restraint of speech and of the press that existed in English society. Until 1694, England had an elaborate system of licensing, no publication was allowed with-out the accompaniment of a government-granted license. William Blackstone wrote in his famous commentaries on the law that “the liberty of the press consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published…. To subject the press to the restrictive power of a licenser… is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.” Commentaries on the Laws of England, 151-52 (1769). The First Amendment is perhaps widely accepted, at the very least, to abolish such prior restraints on publication. One form of speech that was widely restricted in England was the law of seditious libel that made criticizing of the government a crime. The King was above public criticism and that statements critical of the government were forbidden, according to the English Court of the Star Chamber. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of seditious libel “If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it.” Truth was not a defense because the goal was to prevent and punish all condemnation of the government. Professor Zechariah Chaffee said that “the First Amendment was…intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.”

2. Colonial Experience

The colonies were mixed on the protection of freedom as record shows. During the time period, there were fewer prosecutions for seditious libel than England, but there were other controls over dissident speech. Professor Levy said that each community “tended to be a tight little island clutching its own respective orthodoxy and…eager to banish or extralegally punish unwelcome dissidents.” The trial of John Peter Zenger[?] in 1735 is most famous for its seditious libel prosecution. Mr. Zenger published criticisms of the Governor of New York. Alexander Hamilton[?] represented Mr. Zenger and argued that truth should be a defense to the crime of seditious libel. The court rejected this argument, however, Mr. Hamilton persuaded the jury to disregard the law and to acquit Zenger.

3. Purposes of the First Amendment

There is little doubt that the First Amendment was meant to prohibit licensing of publication and to forbid punishment for seditious libel. However, beyond this there is little indication of what the original intent of the framers were. Professor Smolla remarked that “one can keep going round and round on the original meaning of the First Amendment, but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.” Congress in 1798, along with many of the drafters and ratifiers of the Constitution, adopted the Alien and Sedition Acts of 1798. The law 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 however allow truth as a defense and required proof of malicious intent. But this Act of 1798 made the ascertaining of the intent of the framers even more difficult to comprehend. The Federalists under President John Adams aggressively used the law against their rivals, the Republicans. The Alien and Sedition Act was 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 was repealed, and the Supreme Court never ruled on its constitutionality. However, 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). Not surprisingly, then, Supreme Court cases dealing with freedom of expression focus less on the framers’ intent than do cases involving many other constitutional provisions. There is little that can be discerned as to the drafters’ views other than their desire to prohibit prior restraints, such as the licensing scheme, and their rejection of the crime of seditious libel.

Erwin Chemerinsky, Consitutional Law, 2001.

Erwin Chemerinsky, Constitutional Law Principles and Policies, 2002.

Zechariah Chaffee Jr., Free Speech in the United States, 1941.

14 Thomas Howell, A Collection of State Trials 1095, 1128 (1704).

Leonard W. Levy, The Emergence of a Free Press, 1985.

Why Should Freedom of Speech Be a Fundamental Right?

1. The Complexity of the Inquiry

The courts will always decide what speech if protected by the First Amendment and what can be regulated by the government. The First Amendment is written in absolute language that Congress shall make “no law,” however the Supreme Court has never accepted the view that the First Amendment prohibits all government regulation of expression. Justice Hugo Black has taken the absolutist view of the First Amendment, but he is in effect alone among Supreme Court Justices. The Court has many times expressed that freedom of speech and association as protected by the First and Fourteenth Amendments are not absolutes. Konigsberg v. State Bar of California, 366 U.S. at 49. The is line-drawing as to what speech will be protected under the First Amendment and what can be proscribed or limited. Also, lines must be drawn as to where and when speech will be allowed. Even an absolutist view surely would not allow spectators to disorderly yell out while a court is in session and prevent the court from functioning. Even originalists have little guidance from history or the framers’ intent as to the true meaning of the First Amendment. This ultimately leaves the Supreme Court to make value choices as to what speech is protected, under what circumstances, and when and how the government may regulate. Such analysis is possible only with reference to the goals that freedom of speech is meant to achieve.

2. Why is Speech Protected?

There is not one universally accepted theory of the First Amendment, but rather several different views as to why freedom of speech should be regarded as a fundamental right. The theories are not mutually exclusive, but the choice of a theory can influence views on many specific issues. The four major theories are that freedom of speech is protected to further self-governance, to aid the discovery of truth through the market place of ideas, to promote autonomy, and to foster tolerance. Justice Louis Brandeis offered an eloquent rationalization for why freedom of speech is protected. “Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” Whitney v. California. 274 U.S. 357, 375 (1927).

3. Self-Governance

Freedom of speech is crucial in a democracy, because open discussions of candidates are essential for voters to make informed selections during elections. It is through speech that people can influence their government’s choice of policies. Also public officials are held accountable through criticisms that can pave the way for their replacement. The Supreme Court has spoken of the ability to criticize government and government officials as “the central meaning of the First Amendment.” New York Times v. Sullivan, 376 U.S. 254, 273 (1964). This does not mean that the Court views the First Amendment as to only protecting political speeches. The Court has declared that the “guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government.” Time, Inc. v. Hill, 385 U.S. 374, 388 (1967). They says this perhaps the difficulty of defining what is political speech.

4. Discovering Truth

A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth. Justice Oliver Wendell Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Abrams v. United States, 250 U.S. 616, 630 (1919). Justice Holmes also invoked the powerful metaphor of the “marketplace of ideas.” This marketplace of ideas rationale for freedom of speech has been criticized by scholars, because they argue that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some drown out other because of better resources to loud their voices for everyone to hear. Another argument is that it is wrong to assume that truth necessarily will trump over falsehood, and we can see this through history that people may be swayed by emotion rather than reason. Also if truth ultimately prevails, enormous harms can occur in the interim. However, the response to these criticisms is to concede the problems with the marketplace of ideas, but to argue that the alternative of government determination of truth and censorship of falsehoods is perhaps worse.

5. Advancing Autonomy

Another rationale often expressed for protecting freedom of speech as a fundamental right is that it is an essential aspect of personhood and autonomy. Professor Baker said that “to engage voluntarily in a speech act is to engage in self-definition or expression. A Vietnam was protestor may explain that when she chants ‘Stop This War Now’ at a demonstration, she does so without any expectation that her speech will affect continuance of the war…; rather, she participates and chants in order to define herself publicly in opposition to the war. This war protestor provides a dramatic illustration of the importance of this self-expressive use of speech, independent of any effective communication to others, for self-fulfillment or self-realization.” Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that “the First Amendment serves not only the needs of the polity but also those of the human spirit- a spirit that demands self-expression.” Procunier v. Martinez, 416 U.S. 396, 427 (1974). Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.

6. Promoting Tolerance

Another explanation for protecting freedom of speech as a fundamental right is that it is integral to tolerance, which should be a basic value in our society. Professor Lee Bollinger is an advocate of this view and argues that “the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters.” The free speech principal is left with the concern of nothing less than helping to shape “the intellectual character of the society.” This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.

7. Conclusion

All four theories are important in understanding why freedom of speech is protected, in the consideration of what expression should be safeguarded and what can be regulated, and in appraising the Supreme Court’s decisions in this area. Although none of the theories are sufficient to explain all of the cases, and none is without problems.

Erwin Chemerinsky, Constitutional Law, 2001.

Erwin Chemerinsky, Constitutional Law Principles and Policies, 2002.

C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 994 (1978).

Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America, 9-10 (1986).

Freedom of speech and the internet

The development of the internet opened new possibilities for achieving freedom of speech using methods that do not depend on legal measures. Pseudonymity and data havens (such as Freenet) allow free speech, as the technology guarantees that material cannot be removed (censored) and the author of any information is impossible to link to a physical identity or organization.

External Links

The Thomas Jefferson Center for the Protection of Free Expression (http://www.tjcenter.org)