“Congress shall make no law . . . abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.
Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.
The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.
The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.
There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.
1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:
a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan(1964).
b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States(1969).
c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire(1942). But this does not include political statements that offend others and provoke them to violence. For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana(1965).
d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California(1973). In practice, however, the government rarely prosecutes online distributors of such material.
e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber(1982).
f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council(1976).
Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.
2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information.Pickering v. Board of Education(1968).
3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC(1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State(1939).
Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).
But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.Geoffrey R. Stone is Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School. Eugene Volokh is Gary T. Schwartz Professor of Law, UCLA School of Law.
You can read more from each author on our Interactive Constitution project on this topic, as they offer viewpoints beyond this common interpretation: Fixing Free Speech By Geoffrey R. Stone | Frontiers For Free Speech By Eugene Volokh
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2016-17 College Essay Competition Winner
Brigham Young junior Jacob Fisher was selected as the winner of the first annual DVRF College Essay Competition and its $5,000 prize. This year's prompt was "The First Amendment and Free Expression in 21st Century America."
Mr. Fisher's essay considers "the values that will preserve the right to free expression for this and future generations", and the notion that "the preservation of free expression lie[s] more in social values than legal texts."
We have posted his winning essay in its entirety below.
Guaranteeing the Future of Free Expression
A nation, like an atom, consists mostly of empty space. Rightly considered, it is the forces and bonds between particles, rather than the particles themselves, which describe the atom’s behavior; likewise society functions according to the bonds and relations between its individuals. We construct our social relationships through private and public communication. The writers of the Constitution valued the right to speak freely so much that they gave it special protection in the First Amendment of the Bill of Rights. However, ultimate protection of free speech lies more in the values held by members of society-the values that led the founders to author the First Amendment-than in the actual text of the law.
In the twenty-first century the right of free expression is experiencing powerful challenges. It is true that controversy has surrounded free speech since the founding of America; from the Sedition Laws of our early years to campus speech codes of today, the protection of “freedom to think as you will and to speak as you think” has only survived by vigilant efforts of the freedom-loving, even when they protected the right to utter words they didn’t love hearing. However, the fact that this challenge has always persisted is no reason to discount the gravity of our modern situation. This century’s threats to freedom of speech are unique in many ways.
Any period of rapid social change faces this danger: the day-to-day functioning of a society relies on unwritten understandings and informal rules of behavior even more than it does on the formal legal code. While laws and explicit rules are easily passed along, the implicit order of human relations transmits more slowly to rising generations, and may almost imperceptibly be lost when the outer forms of social life transform too quickly.
That is the challenge that First Amendment freedoms face in this century. The advent of the internet and electronic media have reshaped the ways we communicate with each other and created new channels of expression. But while the face of expression is quickly changing, the principle of free expression remains the same. The question and challenge is whether we can successfully transmit the values which uphold free speech. Can the communication of critical cultural understandings keep up with changing media of ideological exchange?
It is not being argued here that the First Amendment is in immediate danger of being overturned or losing legal authority. It is a formal law, and as just described it is easily transmitted from one generation to another and only changes expressly, by intentional effort. But whatever legal doctrines exist formally, the social environment can limit and prohibit free speech. Just like climatic and soil conditions can make it impossible for certain plants to grow, social structures can exclude or marginalize certain expressions without expressly outlawing them. It is after generations of this type of cultural erosion that it is conceivable that even the legal code will be reinterpreted and rewritten to erase the vague memory of liberty.
Why does the preservation of free expression lie more in social values than legal texts? The simplest answer may be the fact that there can never be enough police to keep the world good; practically speaking any law’s efficacy depends on the voluntary compliance of the general population. But there is a deeper reason why the law is not enough, that seems to apply more specifically to the question of free speech. Because the language of the First Amendment is negative, it is clear that the role of the State in relation to free expression must be limited. The phrase “Congress shall make no law” has caused the result that little positive law can be written on the subject, and the government’s role in ensuring freedom of speech is accomplished primarily in a common-law approach through the courts. Indeed history shows many cases of the Supreme Court striking down statutes that interfere with this fundamental right. Because the law is so often forced to pick winners and losers, a system that leaves all people on equal ground concerning free speech must be more of a ‘hands-off’ approach. In the same way that the State is not allowed to either promote or restrict religion and therefore must simply try not to get involved, the Constitution assigns a primarily negative task to the government in respect to freedom of speech.
It is hard to imagine what laws could be written elaborating on the simple language of the First Amendment without being contrary to its principle. Any statute which attempts to be more specific will lose the power of the speech clause’s universality. The best way in which the law today can strengthen the position of the First Amendment is by further confirming it in the courts.
What then are the values that will preserve the right to free expression for this and future generations? The founders of this country held a set of high ideals for a society that could bear the risks of freedom. We must understand and live them if we would create a social environment in which freedom of expression is not just legal doctrine, but a lived reality.
These ideals include the belief that government does not exist for its own sake but so that each individual might be free to develop his or herself, the idea that free inquiry is necessary to the democratic process as citizens explore and discuss truths without fear, and the conviction that even dissident and unpopular voices have the right to be heard. Free speech rests on the courage to believe that truth will prevail in the fair battleground of ideas. Free speech requires that we believe that every individual has something of unique value to share.
Supreme Court Justice Louis Brandeis explained this doctrine, stating “that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones”. Some may fear that free speech allows the preponderance of incorrect or malicious ideas, but again we must believe that truth wins in fair discussions. History has shown that fighting an idea by violence only fans the flames; justice and practicality both urge us to fight ideas only with better ideas.
Brandeis’ brilliant exposition on the First Amendment is consistent with the ideals of such men as Madison and Jefferson. “They valued liberty both as an end, and as a means”, he said: not only is liberty a desirable outcome, but unfettered freedom truly is the means to accomplishing all our most desired outcomes, especially the search for truth.
Justice Brandeis often dissented from his colleagues on matters of free speech, reminding us that the First Amendment exists to protect dissenting or unpopular views. It is just and fitting that freedom of speech should look often to the Supreme Court for protection, because the very design of the Court allows for peaceful toleration of dissent and encourages the expression of both majority and minority voices.
Of course, it is conceded that the language of the First Amendment extends only to the State and not to private institutions. For example, a private university can determine what sort of speech is allowed on campus in ways that a public university cannot. And yet, it should be questioned whether it is wise for them to do so. The principles behind the First Amendment reach where its legal authority does not, and while private institutions must certainly maintain their own institutional integrity and mission, they should seek to wisely balance those concerns with the merits of free expression and open dialogue.
The vitality of free speech in the public square also depends on the cultural values evident in the way we treat each other. While it cannot be legally enforced, it is fair to call on all participants in public discourse to respect each other and engage civilly with differing opinions. An environment full of toxic rhetoric which is merciless to those who speak their mind sincerely is no platform for authentic, honest dialogue.
Ultimately, protecting the right of each and every individual to express themselves is corollary to the conviction that every person individually has something worth sharing. To preserve free expression for the next generation, we have to believe in that. We must see what is good and beautiful in voices other than our own. It is only when we value each person’s experience that we begin to truly listen to one another.