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Free Speech in America: An Overview

By Robert S. Barker, Duquesne University

The U.S. Supreme Court has reviewed many free speech issues.

In 1734, John Peter Zenger, the owner of the New York Weekly Journal, published a series of articles critical of the royal governor of New York. Zenger was charged with criminal libel. At trial, the defense showed that the criticisms of the governor were true, and argued that no one should be punished for truthful criticism of public officials. The jury found Zenger “not guilty.” Ever since, the case has stood as an early American assertion that freedom of speech is, and ought to be, a principle of law.

The United States Constitution, as drafted in 1787, contained very few guarantees of rights, and was much criticized for that deficiency. In 1791, some 10 amendments were added, prohibiting the national government from infringing on the basic rights of the people, including freedom of speech. The first of these amendments reads, in pertinent part:

“Congress shall make no law ... abridging the freedom of speech....”In its original form, this provision applied only as against the federal government, but the Fourteenth Amendment (adopted in 1868), as interpreted by the U.S. Supreme Court, has made that guarantee applicable to the states as well.

During the 19th century there was little controversy over freedom of speech. The Alien and Sedition Acts, passed by Congress in 1798, severely limited the right to criticize high-ranking federal officials, but those laws expired or were repealed within two year to four years, and persons charged with violating them often were acquitted or, if convicted, soon pardoned.

As the controversy over slavery intensified during the 1850s, some states and municipalities enacted laws prohibiting “agitation” over the issue, but the First Amendment did not then apply to the states or their municipalities, and, in any event, those laws soon disappeared along with slavery itself. During the Civil War, federal authorities detained thousands of persons who had expressed Southern sympathies, but those who had merely spoken, and not acted, for the South almost always were released quickly.

The era of “freedom of speech” as a matter of adjudicated constitutional law began during World War I, with the trials of various persons who opposed and tried to obstruct United States participation in the war. Ever since, there has been a large amount of litigation over the definition of “speech” and the extent to which that speech is protected. A few questions that have been raised over the years indicate the scope and complexity of “freedom of speech” in American law:

• Is advocacy of illegal conduct constitutionally protected?
  
• Are false slanderous statements protected?
  
• Are obscene or pornographic words and depictions protected?
  
• Are commercial advertisements protected?
  
• Is nonverbal conduct protected when it is used to communicate ideas?

Costa Rica's constitution protects those expressing opinions from persecution.

Time and space do not permit even a cursory examination of these and many other issues that have been litigated over the past 85 years. However, a review of certain principles may provide an outline of what “freedom of speech” has come to mean in American life and law. Such a review also may serve to illustrate some of the differences between the United States and other free and democratic societies in this regard.

First, "freedom of speech," like almost all other rights guaranteed by the U.S. Constitution, is a limitation only on governmental conduct. Private individuals and institutions, when not acting in concert with government, are free to set and apply their own standards of speech in matters of private life. By contrast, guarantees of freedom of speech in some other countries impose constitutional restrictions on private persons and groups, as well as on government. For example, the constitution of Costa Rica provides:

"No one may be disturbed or persecuted for expressing opinions...."

The country's procedural statutes make clear that this guarantee (and other constitutional guarantees of individual rights) are enforceable against private entities, as well as against the government. Similarly, Article II-71 of the proposed European Constitution states:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...."

The general wording of the first sentence, followed by the statement that the guarantee includes restrictions on public authority, could well mean that the constitutional guarantee will restrict everyone, not just government.

Second, in the United States, “freedom of speech” does not mean that every utterance is absolutely protected against governmental regulation. Obscenity is not protected at all, and commercial speech (that is, speech proposing an economic transaction, such as the advertising of food, medicine, legal advice, tobacco and other goods and services) is less-highly-protected than is other speech.

Third, whenever government limits speech because of its content or viewpoint, the restriction usually is unconstitutional unless the government can show that it has a compelling interest in limiting that speech, and that the limitation is tailored narrowly to serve that interest. By contrast, in some other countries, speech on certain subjects -- for example, discussion of pending criminal cases or speech invoking religious authority -- is unprotected and even may be constitutionally prohibited. And speech with a particular point of view, for example, “propaganda for war,” or speech critical of a particular racial or ethnic group or foreign head of state, is in many countries similarly unprotected or prohibited.

Fourth, in the United States any attempt by government to impose a “prior restraint” on speech is presumptively unconstitutional. Thus in 1972, when two prominent newspapers began publishing stolen government documents about the history of U.S. involvement in Vietnam, the Supreme Court determined that publication could not be prohibited because the government had failed to show that such publication seriously would harm the national interest. This strong presumption against prior restraint is in marked contrast to the practice in many other free and democratic societies in which censorship laws enable government to obtain court orders prohibiting numerous categories of speech.

The foregoing generalizations only touch the surface of “freedom of speech” in the United States. What began as a right to criticize government policy and public officials has come to be invoked (with varying degrees of success) to protect even such things as nude dancing, flag burning, Internet pornography, Ku Klux Klan harangues, Communist conspiracies and Nazi threats.

Protection of free speech on the Internet is an issue many courts are reviewing.

To acknowledge that freedom of speech often has been invoked on behalf of dubious or pernicious causes is not to disparage the guarantee itself; neither does it imply that all speech is of equal value. In a more perfect world, all speech tending toward the good would be protected, while speech tending toward evil would not. But statutes and constitutions are meant for the governance of imperfect individuals in imperfect societies, and every proposed grant of power to government must be weighed against the danger that that power might some day be used tyrannically. In interpreting the guarantee of freedom of speech in the U.S. Constitution, the Supreme Court for many decades has proceeded on the principle that in difficult cases it is usually best to risk erring in favor of freedom rather than governmental power.

Not all free and democratic countries have struck the same constitutional balance as has the United States; and no one is likely to agree completely with the jurisprudence of the U.S. Supreme Court on every issue. Be that as it may, few people anywhere will deny that freedom of speech thrives in the United States.

Robert S. Barker is a University Distinguished Professor of Law at Duquesne University.