freedom-of-speech

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.

First Amendment

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The First Amendment to the United States Constitution, which protects freedom of speech, religion, press, assembly, and petition, was shaped by several historical forces. One significant influence was the colonial experience of religious persecution and the desire for religious freedom among early settlers. The Founding Fathers, drawing upon Enlightenment ideals, emphasized the importance of individual liberties and limited government power. They sought to establish a system that prevented the government from infringing upon the fundamental rights of its citizens.

The Supreme Court has established that restrictions on speech based on its content, where the government targets the message, are generally unconstitutional. Laws that prohibit criticizing a war, opposing abortion, or advocating high taxes are examples of content-based restrictions that violate the First Amendment. Such laws distort public debate and undermine the principle of self-governance by allowing the government to control what ideas or information the people can access.

However, there are situations where the government can impose restrictions on speech under a less demanding standard. Certain types of speech have been deemed of “low” First Amendment value and are subject to restrictions, such as defamation, true threats, “fighting words” likely to incite immediate violence, obscenity, child pornography, and commercial advertising. Special relationships to the government, such as government employees or students in public schools, can be subject to content-based restrictions if their speech conflicts with their roles as public officials or students. Content-neutral restrictions, such as those related to noise, traffic, or signage, can be imposed as long as they are “reasonable” and apply to all speakers equally, without favoring specific ideas or messages.

The Supreme Court’s interpretation of the First Amendment has become increasingly protective of free expression over time. In the past, blasphemy could be punished, and during World War I, speech promoting crime or condemning the military draft was deemed punishable. However, since the 1920s, the Court has broadened the scope of the First Amendment, providing stronger legal protection for free speech and press rights.

In the case of Citizens United v. Federal Election Commission (2010), the Supreme Court made a landmark decision regarding campaign finance regulations. The Court ruled that political spending by corporations and unions is protected as free speech under the First Amendment. The decision overturned restrictions on independent expenditures by corporations and unions, allowing them to spend unlimited amounts of money to support or oppose political candidates. The ruling was highly controversial, with critics arguing that it opened the door for excessive influence of money in politics and undermined the integrity of the electoral process. Proponents, on the other hand, viewed it as a victory for free speech rights and the ability of individuals, including corporations and unions, to express their political views. The Citizens United decision continues to shape the landscape of campaign finance laws and remains a topic of ongoing debate and discussion.

The significance of the Citizens United v. Federal Election Commission (2010) case lies in its impact on campaign finance regulations and the notion of corporate personhood in American politics. The Supreme Court’s ruling, in this case, held that political spending by corporations and unions is a form of protected speech under the First Amendment, thereby overturning restrictions on corporate campaign expenditures. This decision paved the way for the rise of super PACs (Political Action Committees) and increased the influence of money in politics.

The First Amendment: Free Speech and Freedom of Speech

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In the constitution, the First Amendment in the Bill of Rights protects Americans freedom of speech. When the Bill of Rights was written in 1789, the American colonies had recently revolted against British rule. Previously, the British Monarchy had controlled the press and saying bad things about the British crown was a crime one that could be punished by imprisonment or death. However, in writing the Constitution, and adapting it with the Bill of Rights, the founding fathers attempted to enshrine important ideals of democracy — that people should be free to say what they wish and the press should be able to criticize public officials — with the First Amendment.

It is important to note that this does not apply to private companies, employers, or landowners. While the amendment refers only that Congress may not restrict freedom of speech, the Supreme Court has ruled that this applies to the entire Federal government. Moreover, in the case of Gitlow v. New York (1925) the Supreme Court ruled that the First Amendment also restricts the power of states and local governments. The protections of the First Amendment are not unilateral, however, and there are a few hotly debated exceptions of when free speech is, or is not, protected. Government officials, for example public school teachers, can be punished for certain kinds of speech not endorsed by the government.

Filters not based on the content of a message but rather can be based on some other quality such as noise or other kinds of disruption are sometimes not restricted, like in the case of Turner Broadcasting Inc. v. FCC (1994) but this is on a varying case by case basis. Finally, the Supreme Court has ruled that the government can restrict “low” speech. Defamation, threats, obscenities, and misleading advertising all constitute “low” speech that the government regulates.

The Supreme Court is extremely loath to use “low” speech. For example, the 1978 case of National Socialist Party of America v. Village of Skokie was one of the most controversial decisions in the history of the United States Supreme Court, wherein the judges defended the freedom of a neo-Nazi group that aimed to demonstrate in Skokie, Illinois. The NSPA argued that the Illinois Supreme Court violated the free speech clause of the First Amendment by restricting their right to protest. Today, the First Amendment is still a matter of hot debate.

An example of an important issue regarding the modern day application of the First Amendment arises from campaign donations in politics. The Supreme Court has held that political contributions are “speech” and are thus protected by the First Amendment. That said, the Supreme Court has ruled the government is allowed to regulate contributions if there is a risk of undue influence in Buckley v. Valeo (1976) and in McConnell v. The Federal Election Commission (2003) the Court ruled that the government could regulate corporation’s spending on political expenditure. All in all, these issues of free speech and the questions of what kinds of expression the government should, and should not, restrict extend into the present day and can have serious ramifications on everyday life, elections, and more. 

First Amendment – Freedom of Speech Clause

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The Freedom of Speech Clause is found in the First Amendment and has been highly important since it was ratified in 1791, and continues to be relevant in the present day. The first amendment was created with the original intent to protect each individual’s values and their right to expression. The Freedom of Speech clause prevents the government from ridding the people of their own opinions and from having total control over the way the people are able to interact with others.

It is primarily to state the allowance for people to criticize their own government without retribution. In many countries people face severe repercussions for presenting judgment to their government but this clause enforces the people’s abilities to speak their mind. This amendment was first put in place because the people wanted a written document stating their rights. The Freedom of Speech Clause is commonly understood as the law that gives all people the right to express any idea or opinion they possess openly without any risk of punishment, no matter what the view may be.

Additionally, that they can display these thoughts freely in any manner of expression. But, what a lot of people don’t realize, is the specificity of the amendment and the limitations within it that it holds. This clause presents the right for all people to publicly share their ideas freely without the fear of being punished by the government.  However, the Freedom of Speech Clause does not just give all people the right to say whatever they please to whomever.

The limitation is that people are solely protected from consequences being given from the government, and not others. For example, people can still legally be fired from a job as a result of expressing an opinion unless they are government employees. Freedom of Speech is highly debated as it is disagreeable among many whether or not any ideas should be acceptable to be expressed. This clause has been and continues to be controversial with the argument over making exceptions for what cannot be said publicly.

Most can agree that hate speech and words evoking violence shouldn’t be presented. But it gets difficult to incorporate that message into a law as it is difficult to create the limitation as all people have different views and different definitions of what they find offensive or politically correct. With this clause, the speech that gets the strongest protection is political speech. Praise or criticism of any political happenings are almost always protected by the First Amendment.

It has what is classified as ‘Preferred Position’ which is that all regulations, laws, and executive acts that will limit political speech are almost always shut down by the courts. A very impactful court case on the freedom of speech was Brandenburg v. Ohio in 1968. A Ku Klux Klan leader was delivering speeches that were extremely offensive and could be considered threatening to many people. Since it was political, the court ruled that it was protected by the First Amendment.

Something we also studied this year that can relate to the Freedom of Speech Clause is John Locke and his enlightenment ideas. Both were formed with the intention of giving more rights to the people. John Locke argued that people have the right to life, liberty, and property. The first amendment and John Locke’s enlightenment ideas share similar roots as they both allow people to have more agency and ability to express themselves. The Freedom of Speech Clause has impacted history greatly and continues to be relevant in the present day.