freedom-of-speech-clause

Jack Korngold — 1st Amendment: Freedom of Speech Clause

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First Amendment — Freedom of Speech Clause 

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

The concept of free speech per the First Amendment is a critical principle introduced in the Bill of Rights in the Constitution. The historical context for this clause is rooted in the American experience with the oppressive government of the British Empire. Indeed, the Bill of Rights was added to the Constitution to satisfy the concerns of the Anti-Federalists to protect the rights of individuals from the power of the central government. Even before the Revolution, journalist John Peter Zenger was prosecuted by the colonial government of Massachusetts for printing unpopular truths about the Governor.

This prosecution reflected a suppression of free speech, which the colonists believed violated their inalienable rights. The common interpretation of free speech rights has been the duty to protect both an individual’s and groups’ ability to express themselves from government intervention across various mediums, including speech, print and online forums. This protection is quite broad and encompasses a variety of beliefs, and includes the protection of opinions that many Americans might find distasteful or offensive.

Even the burning of the American Flag as a form of political speech was protected by the Supreme Court as demonstrated in the ruling of the Texas vs. Johnson case in 1989. The broad interpretation of free speech rights is seen as necessary for the preservation of our democracy. A central debate about this Constitutional right is how restrictive our interpretation should be in its protection. One view is that free speech should be limited for national security purposes — in the Schenck v. United States case, the Supreme Court read the First Amendment in a restricted way so that people could not criticize the government in a time of war and argued that if there was “clear and present danger” to the country, then the speech could be restricted. In contrast, in the 1969 Tinker v. Des Moines Independent Community School District case, the court was less restrictive and ruled that high school students could protest the Vietnam War and that teachers could not stop the students from showing their opposition.

This concept of free speech in the First Amendment is clearly an example of an “inalienable right” that earlier thinkers, such as John Locke, thought must be guaranteed by a government based on the Social Contract. This right also reflects Rousseau’s view of the General Will as expressed in his conception of the Social Contract. With respect to how restrictive our interpretation should be, it would be necessary to have high standards for what constitutes a “clear and present danger” to the country as highlighted by the Schenck case.

The standards for enforcement must be strict, otherwise governments could unjustly suppress opposing points of view that represent no real threat to the country, but that interfere with an Administration’s political agenda. Some have also argued for the possibility of amending the language of this clause to remove the protections for “hate speech.” My proposal is that hate speech be more narrowly defined in the Amendment by words or images that incite or provoke violence or harm against a particular group purely because of their identity. Regardless of differences of opinion, the Free Speech clause of the First Amendment is a foundational element of American society, even though we might not always agree on how it is to be interpreted.

 

Bibliography

Vile, John R. “John Peter Zenger.” In The First Amendment Encyclopedia, edited by Middle Tennessee State University. Middle Tennessee State University, 2009. Last modified 2009. Accessed June 2, 2023. https://www.mtsu.edu/first-amendment/article/1235/john-peter-zenger.

 

There was no information on John Peter Zenger in the Oyez Archive, and so, I cited an outside source. All of the other cases however, are from the Oyez Archive.

Freedom of Speech Clause

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The Freedom of Speech clause, written in the First Amendment of the United States Constitution, is a foundational pillar of American democracy. James Madison, the author of the Bill of Rights created the Freedom of Speech clause. Because Madison viewed a free republic as ultimately dependent on public opinion, this clause gave people the right to communicate with one another without fearing any form of reprisal. The Freedom of Speech clause is a cornerstone of a free and open society. It recognizes that the exchange of ideas, even controversial or unpopular ones, is vital for progress, the pursuit of truth, and the functioning of a democratic society.

The commonly understood meaning of this section in the constitution (the First Amendment, specifically the Freedom of Speech clause) gives the right to freedom of both religion and speech, it is the basis of self-fulfillment and gives the right for someone to express their own thoughts and communicate freely with others. The scope of the Freedom of Speech clause is extremely broad, encompassing many variations of expression. It also protects written communication, different forms of art like film, video, painting, or poetry, and even nonverbal gestures or manners that convey a particular message like American Sign Language (ASL).

There are many ways to interpret this amendment, in different circumstances invoking the Freedom of Speech clause can be seen as either legal or illegal. For example, a “true threat” can be punishable by law if speech threatens to incite violence or gives the possibility of any physical, unwanted action, thus making it illegal. However, the Supreme Court repeatedly defends the ability to voice dissenting viewpoints, even when they contradict accepted standards or cause controversy. This occurred in the case Schenck v. United States (1919), where the state used the clause against Schenck.

The Supreme Court has acknowledged that speech, in all of its manifestations, acts as an essential catalyst for the discussion of ideas, the search for the truth, and the advancement of society. Even though there are many examples of Supreme Court trials that uphold the Freedom of Speech, the government can refuse to acknowledge the Freedom of Speech clause only if it is intended or likely to produce imminent lawless action. This was decided during Brandenberg v. Ohio (1969), the first instance where the Supreme Court interfered with the First Amendment. 

The First Amendment of the Bill of Rights is very similar to the Declaration of the Rights of Man and the Citizen, made by France during their revolution. It was created in 1789 exactly one hundred years after the Bill of Rights. Both documents share a similar foundation in advocating for fundamental human rights and freedoms. Both the Declaration and Bill of Rights imprint Freedom of Speech as a base for many different clauses established thereafter.  It is crucial to remember that both the Declaration of Rights of Man and the Bill of Rights acknowledges that this freedom has some restrictions, such as those against defamation, incitement to violence, and speech that presents a clear and present danger.