First Amendment Series: Freedom of Speech

What is free speech? That’s a question that has been debated since the First Amendment was adopted in 1791. Restrictions have come and gone, largely shaped by the Supreme court. Today, we will explore how this freedom has changed over time and what free speech looks like today.

In the latter part of colonial times, speech was not as deeply censored as it was in the England proper. This set the table for political dissent, a major driver in launching the revolution, to be a tenet of the new government. Without free speech and dissent, the people could not hold government accountable.

The first tests of free speech came in the same way that tests of freedom of the press came, with the Alien and Sedition Acts of 1796. This censorship on criticizing the government was vastly unpopular and reiterated the view that the people would not stand for being banned from speaking out against the government. However, for most of American history, speech was restricted, and these restrictions went largely unchallenged because, at the time, they sat parallel to social norms. Many states and cities had obscenity laws that extended to writings, performances, and movies. These laws existed well into the 1960s. Notably, comedian Lenny Bruce was arrested on grounds of obscenity after performances in several cities. An 1873 set of laws barred mailing pornography, sex paraphernalia, and information about abortion and contraception. State and local governments supported the Motion Picture Production Code which set guidelines on what can be said and done in movies. From World War I throughout the 1950s, speech about communism was prosecutable.

Since the 1960’s, the Supreme Court has moved to viewing most speech as protected with a handful of specific restrictions. They have divided protected speech into several categories. Political speech is a fundamental right in a true republic. However, restrictions can apply when voting or standing for office. The court has also ruled that political donations are a form of political speech. Commercial speech, or speech with the intent to earn revenue, is mostly unrestricted, though this has some caveats around defrauding customers. Then there is expressive speech, or nonverbal actions to make a point, which is also a protected part of free speech. The court has upheld the right to burn the American flag, for example, under the idea of expressive speech. This idea also protects clothing, body language, and even hidden messages in computer code. It should be noted that through all of these types of speech, hate speech is generally allowed unless it falls into the restrictions discussed below, mainly if it is threatening speech.

Before discussing restrictions, it is first important to understand what the amendment actually says. The text of the First Amendment states that “Congress shall make no law… abridging the freedom of speech.” This means that the government cannot restrict free speech, not that it is a set standard everywhere you go and in everything you do. This allows private entities to have terms of service and set restrictions, for example.

The court has set specific restrictions on certain types of speech. Speech that incites lawlessness is not allowed. This was clarified in several court cases under the “clear and present danger” test. The classic example of this is yelling fire in a crowded theater when no fire exists. Along the same lines, threats and “fighting words” that could cause a breach of the peace are not protected.

Certain types of obscenity are still barred. The standard for this is called the Miller Test and asks if the speech is particularly offense (usually having to do with sex) and if it has any artistic, political, or scientific value. While pornography has been protected, this standard is applied to particularly hard-core content and is what allows for wide-reaching anti-child-pornography laws.

Libel, slander, defamation of character, and invasion of privacy are also not protected, though the standard to prove any of these torts is high. It should be noted that parody of public figures is not restricted under these guidelines.

Finally, certain restrictions on political spending are legal forms of restricted speech. In the workplace, public speech in an official capacity can be restricted. This too applies to proprietary information, though certain whistleblower laws exist to protect speech for very specific circumstances. Along these lines, speech about military and national security information can be restricted. Finally, in schools, students are allowed free speech so long as it does not infringe the rights of other students or interfere with school discipline. Schools can also restrict obscenity and can sensor school funded newspapers.