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Free Speech Primer

Adoption of the First Amendment

Great Britain's heavy-handed rule during the American colonial period left many Americans after the Revolution averse to any powerful, centralized government. Thus, in order to muster public support for the proposed U.S. Constitution and the national government it would establish, the Framers deemed it necessary to promise a bill of rights that explicitly constrained the federal government and protected individual liberty.

The Bill of Rights ratified in 1791 became the first ten amendments to the Constitution. And the first of those amendments, written chiefly by James Madison, reads in part:

Congress shall make no law... abridging the freedom of speech, or of the press.

Political and legal scholars identify several functional justifications for assuring free expression. For example, a free-speech culture generates a richer "marketplace of ideas," where innovation and truth are more likely to emerge. And free expression also helps ensure an electorate that participates meaningfully in democracy. So free speech may be good utilitarian policy.

But writings at the time of our nation's birth also evidence a strong libertarian view of free thought and expression. Under this view, expressive liberty doesn't need to be justified by any particular results. Rather, it is a fundamental right that individual human beings possess naturally — "inalienable," and virtuous in itself. As Supreme Court Justice Louis Brandeis wrote in a 1927 First-Amendment case:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties... They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness...

Applying the First Amendment

By its own terms, the First Amendment is seemingly absolute in its decree that the federal government may not impose law hostile to free expression. It mentions no exceptions.

And this forceful language has since been deemed applicable as a bar to intrusion by the states, as well. In 1868 the nation adopted the 14th Amendment, vowing that no state make or enforce any law that abridges fundamental privileges or liberties of U.S. citizens. Decades later, in the 1925 case Gitlow v. New York, the Supreme Court ruled that the First Amendment's free speech and free press guarantees are among the fundamental personal liberties the 14th Amendment aimed to protect against impairment by the states.

Never has a majority of the Supreme Court declared First Amendment protection to be as absolute as its language might suggest, however. The Court has had to wrestle with vexing questions about what qualifies as "speech," what amounts to "abridgment," and when other important values should override free speech. As Justice Oliver Wendell Holmes wrote in a 1919 case:

"[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Over the years the Court has permitted many encroachments upon liberty of expression. Still, the First Amendment today remains a formidable guard against government tyranny.

Heres a streamlined guide to First Amendment application:

#1. Is government action involved?
The amendment limits only government. As with the rest of the Bill of Rights, its interest is individual liberty versus governmental power. So if one private citizen or private group impedes the speech of another, no First Amendment right is implicated. The threshold is some government action, typically in the form of laws, court orders, or enforcement actions by police or other ofcials.

#2. Is expressive activity impeded?
Courts have interpreted the terms freedom of "speech" and "press" broadly to mean virtually all forms of expression. So communication via photographs, theatrical performance, film, signage and gestures all are protected. On the other hand, activities undertaken predominantly for self-entertainment or recreation are labeled conduct, not expression, and are without First Amendment protection. In a 1989 ruling that recreational social dancing was not protected expression, the Supreme Court explained: "It is possible to nd some kernel of expression in almost every activity a person undertakes — for example, walking down the street, or meeting one's friends at a shopping mallbut such a kernel is not sufcient to bring the activity within the protection of the First Amendment."

#3. Does the expression fit an unprotected category?
The Supreme Court has ruled that certain kinds of expression simply fall outside the First Amendment's protection. Examples include incitements to violence, defamatory statements made with "actual malice," obscenity, and false commercial advertising. For each of these excepted categories the Courts have fashioned specific and narrow definitions. But if the speech fits that definition, it may be altogether outlawed.

#4. Is the expression "commercial"?
Truthful commercial speech — that which promotes purchase of the speaker's goods or services — is within the First Amendment's protection. But the Supreme Court has long deemed it less protected than most other kinds of expression. So a restriction on truthful advertising may be upheld if government tailors its action to serve a "substantial" public interest, such as minimizing teenage smoking.

#5. Is the government action content-neutral?
Similarly, a government restriction on speech may be upheld if it serves a "substantial" public interest in controlling the time, place or manner of expression — and is not an attempt to control or punish content. These are called viewpoint-neutral or content-neutral restrictions. An example: ordinances that require news racks or billboards to be set back a specified distance from street corners, so as not to impede drivers' vision.

#6. Is there a "compelling" justification to limit speech?
In situations other than the foregoing, expression is most fully protected and government meddling is most highly suspect. Speech may still be curtailed, but only in very rare cases where a law is clearly and narrowly drawn to serve a public interest of the highest, most "compelling" nature — such as protecting life or limb or the emotional well-being of children.

Important Free-Speech Cases

Here are several U.S. Supreme Court cases that articulate important principles of First Amendment law and help fortify expressive liberty.

Brandenburg v. Ohio (1969). From the 1920s through the '50s, many cases wrestled with this question: To what extent is teaching or advocating violence safeguarded by the First Amendment, and at what point does it become an unprotected, punishable act? Brandenburg provides the modern test: Advocacy is protected unless its intended to prompt "imminent lawless action and is likely to incite or produce such action."

Cohen v. California (1971). With rare exception, government may not prohibit or punish the use of profanity in public. Harsh language is nevertheless protected, and the fact that some people may be offended is insufficient grounds for state action.

New York Times v. United States (1971). Also known as the "Pentagon Papers case," the federal government had sought to prohibit newspapers from running excerpts of a secret Vietnam War history. But merely claiming a "national security" threat was insufficient to meet the government's "heavy burden" of justifying prior restraints on the press.

New York Times v. Sullivan (1964). A "public official" may not collect damages for defamatory statements unless the falsehoods were published with actual knowledge or suspicion that they were false — a degree of fault called "actual malice." This rule gives "breathing room" for the First Amendment. The rule was later extended to statements about "public figures" as well.

Miami Herald v. Tornillo (1974). It might sound fair for a newspaper to give free reply space to political candidates who receive negative coverage in the paper. But a state mandate that newspapers make reply space available is a First Amendment violation of newspapers' editorial discretion.

Richmond newspapers' v. Virginia (1980). In general, the First Amendment isn't interpreted to grant a right of access to government. But the public and the press do indeed have a First Amendment right to attend criminal trials, which historically were open at the time the nation was formed. Later cases have extended this right, subject to some exceptions, to other judicial proceedings.

Tinker v. Des Moines School District (1969). School officials must maintain order for a proper learning environment. But schools also should teach and model our constitutional principles of individual liberty. This case struck a balance by holding that student speech at public schools is protected unless it would "materially and substantially interfere" with necessary discipline for operation of the school.

State Constitutions

Each state in the United States has its own constitution. And those constitutions, much like the U.S. Constitution, contain declarations of citizens' fundamental rights including the right of free expression. In fact, the First Amendment's language was influenced by the free-speech clauses that already existed in various state constitutions at the time.

Today, most state constitutions contain basic free-speech declarations very similar to one another. The declaration in Article I, Section 5 of Michigan's constitution is typical:

Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.

State constitutions may not restrict the minimum level of freedoms guaranteed for all U.S. residents in the federal Constitution. If it wishes, however, a state through its constitution may guarantee its citizens greater liberty than the U.S. Constitution is interpreted to provide.

For example, the California Supreme Court in 1979 held that the state constitution protects political petitioning in privately owned shopping centers (Robins v. Pruneyard Shopping Center), contrary to the U.S. Supreme Court's interpretation of the First Amendment. The U.S. Supreme Court later acknowledged that the state is free to recognize civil liberties greater than those conferred by the federal Constitution.

Another example: Under the Supreme Court's interpretation of the U.S. Constitution, sexually explicit expression meeting the Court's "obscenity" definition is not protected by the First Amendment. But the Supreme Court of Oregon in 1987 ruled that under that states robust free-speech guarantee there is no exception for sexually explicit content (State v. Henry).

Quotes on Free Speech

"We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still."
John Stuart Mill
On Liberty, 1859

"[F]reedom of thought, and speech ... is the matrix, the indispensable condition, of nearly every other form of freedom."
Supreme Court Justice Benjamin Cardozo
Palko v. Connecticut, 1937

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Supreme Court Justice Robert Jackson
West Virginia Board of Education v. Barnette, 1943

"In our system, state-operated schools may not be enclaves of totalitarianism... In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."
Supreme Court Justice Abe Fortas
Tinker v. Des Moines School District, 1969

"The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us ..."
Supreme Court Justice John Harlan
Cohen v. California, 1971

"Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is."
Federal Circuit Judge Frank Easterbrook
American Booksellers v. Hudnut, 1985

"The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good."
Supreme Court Justice John Paul Stevens
44 Liquormart v. Rhode Island, 1996

"Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people."
Supreme Court Justice Anthony Kennedy
Ashcroft v. ACLU, 2004

"[W]e do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."
Federal District Court Judge Lowell Reed, Jr.
ACLU v. Gonzales, 2007

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