The First Amendment is pretty straightforward in its treatment of freedom of speech. It is not to be abridged, plain and simple. But is it really so simple? Is freedom of speech in this country absolute, or does it have its limits? This has been a question that has been handled by the courts in the United States almost since the amendment was written. It is a question that has become particularly important today, when certain laws, such as the Patriot Act, seem to be designed to deny us this basic constitutional right. How far does freedom of speech extend in the United States?
Freedom of speech is one of the foundations of our democracy in the United States. It is in the first amendment to the constitution, and was considered so important by the Founding Fathers that they mentioned it second in a list of several basic freedoms to which we were to be entitled, behind only freedom of religion in importance. The amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”(Bracken, 1994). Freedom of speech is a cornerstone of our democracy; however, the question of whether is was intended to be absolute has been a question the courts in the United States have been at work addressing in the centuries since the First Amendment was written. While some judges have held to the notion that “no law” means “no law”, most judges have agreed that freedom of speech has its limits, even by the terms of the First Amendment (Bracken, 1994).
One of the first challenges to freedom of speech in the United States came early on in its history, with the Alien and Sedition Acts of 1798. These acts, which were passed into law by the Federalist party that was then in power, the acts contained several provisions regarding aliens in the United States. The most controversial part of the acts, however, dealt with freedom of speech. This part of the act made it a crime to publish “false, scandalous, and malicious” writing against the government and its officials (Levy, 1960). This essentially meant that anyone who openly criticized the president or members of Congress in writing could be jailed for it. While the acts were in force, people were, in fact, jailed for criticizing President John Adams and others in the government. The Alien and Sedition Acts were so hated and so controversial that they became a major issue in John Adams’s re-election campaign, and contributed to his defeat. Thomas Jefferson, who won the presidency from Adams, quickly repealed the Alien and Sedition Acts and freed anyone who had been jailed under them. Like most Americans, Jefferson believed the acts to be unconstitutional and a threat to the free society he and others wanted the United States to be.
For all of the outcry over the Alien and Sedition Acts, however, freedom of speech has not been held to be absolute in practice in the United States. Time and again, the Supreme Court has ruled that limitations to freedom of speech do exist. One of the best-known challenges to freedom of speech was Schenck vs. the United States in 1919, which established the Clear and Present Danger clause (Greenawalt, 1995). This clause states that freedom of speech is to be permitted except in cases where it presents a “clear and present” danger to the national security of the United States. Such cases of clear and present danger would most likely happen during times of war, and would consist of speech that would somehow help the enemy, such as publicly divulging national security secrets. In these cases, speech is able to be curtailed by legal means. Thus far, the clear and present danger test has been upheld by the courts and continues to be a legal restriction to freedom of speech in this country.
The 1925 case of Gitlow vs. New York set a further precedent for restrictions to freedom of speech. In this ruling, the courts decreed that any threat or potential threat to public order could be acted upon by the government, including acting to stop speech that subverts the government, incites crime, or promotes the corruption of morals (Freedman & Freedman, 1995). This decision effectively made it a crime to belong to any organization that was considered subversive. While court decisions since Gitlow have been somewhat more liberal in regards to freedom of speech, Gitlow was never officially overthrown.
The Supreme Court and other courts in the United States have, at various other times, ruled that libel, slander, and obscenity are not protected forms of speech. Libel is deliberate written lies about someone that are intended to defame or materially harm that person, while slander is the same thing, only the lies are spoken. In court, both libel and slander must be proven by proving the person accused of them deliberately lied. This, of course, makes proving libel and slander difficult. Many tabloid newspapers that have been sued by celebrities for libel have won their cases by simply telling the courts that the publishers believed what they were publishing to be true based on the information they had. However, if libel or slander can be proven, it is not protected by the First Amendment, according to the courts.
Obscenity is also not protected by freedom of speech, according to the courts. However, defining what constitutes obscenity has proven problematic over the years. Obscenity is such a subjective concept that coming up with an absolute definition of it for the purposes of prosecution has been difficult. The courts have developed and discarded several testing systems to determine obscenity over the years. The current test, which is known as the Miller Test and comes from the case of Miller vs. California in 1973, is the test currently in use (Greenawalt, 1995). The Miller test states that speech is found to be obscene if the average person, applying community standards of decency, would find it offensive, and if it has no serious literary, scientific, artistic, or political value. In this manner, the courts today are determining what is and is not obscene, and therefore what is and is not protected under freedom of speech.
Finally, “fighting words” have been ruled by the courts as not being protected under freedom of speech. Fighting words are words that can directly inflict harm or incite others to violence. The court ruled in Chaplinsky vs. New Hampshire in 1942 that people can be jailed under the law for using such words, and subsequent court decisions have upheld this ruling (Freedman & Freedman, 1995). This ties in with earlier court decisions regarding clear and present danger and the government’s duty to keep the peace; the government must maintain domestic tranquility, therefore, if someone’s speech is threatening that tranquility, it may legally be suppressed.
While the Constitution appears to be clear on the matter of freedom of speech, being worded so that this freedom appears to have been intended to be absolute, the true extent of freedom of speech was in question even while the men who wrote the First Amendment were still living. Though some have interpreted “no law” as meaning “no law”, most justices on the courts have interpreted the Constitution has allowing for limitations of freedom of speech, especially in cases where freedom of speech comes into conflict with other Constitutionally-stated duties of the government, such as maintaining domestic peace. Speech that causes deliberate harm has also been ruled to be not protected, as has obscenity. Court interpretations of freedom of speech are continually changing, and continue to change today. If the Founding Fathers were not sure of the limitations of their own amendment, how can we be, more than 250 years from the time the amendment was written? Yet, one thing seems to be certain, and that is that there are no certainties when it comes to freedom of speech, except that it is, as a concept, highly valued as a freedom in this country.
Bracken, Harry M. (1994). Freedom of Speech: Words are Not Deeds. Praeger Publishers: New York.
Freedman, Monroe H. and Freedman, Eric M. (1995). Group Defamation and Freedom of Speech: The Relationship Between Language and Violence. Greenwood Press: New York.
Greenawalt, Kent. (1995). Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton University Press: New Jersey.
Levy, Leonard Williams. (1960). Legacy of Suppression: Freedom of Speech and Press in Early American History. Harvard University Press: Connecticut.