Constitutional Protection of Free Speech in the United States
Constitution of the United States The Influence of the Constitution Protecting Personal Rights Free Speech
Under the First Amendment, all United States citizens have the right to speak their minds and publish their thoughts. Originally the First Amendment was aimed at preventing only Congress from interfering with freedom of speech and freedom of the press. But in 1925 the Supreme Court ruled in Gitlow v. New York that the due process clause of the 14th Amendment incorporated the First Amendment, extending free speech protections to the states.
When governments interfere with speech, they usually do so by either censoring it beforehand or by punishing it afterward. The Supreme Court has ruled that the First Amendment is nearly absolute in protecting against a prior restraint. When President Richard M. Nixon went to court to stop the New York Times and the Washington Post from publishing the Pentagon Papers in 1971, the Supreme Court ruled in New York Times v. United States that neither the president nor the courts could constitutionally do so. Whether the government may punish someone after speaking depends on what is said. In general, it is unconstitutional to punish someone for the content of a speech or publication.
Since the adoption of the Constitution in 1789, however, courts have excluded certain types of speech from First Amendment protection. Political dissent – speech that criticizes the government or calls for its removal – has sparked some of the fiercest debates over constitutional rights. In 1798 Congress passed the Alien and Sedition Acts, which prohibited speeches and publications criticizing the government. Although these laws were surely unconstitutional, no case challenging their constitutionality ever reached the Supreme Court, and they expired in 1801.
In 1919, following World War I (1914-1918), the Court was confronted with a number of espionage cases that tested these rights for the first time. At first the Court seemed to suggest that Congress could constitutionally outlaw any type of speech that might, even if remotely, interfere with the war effort. It was in one of these cases, Schenck v. United States (1919), that Justice Oliver Wendell Holmes, Jr. first announced the famous “clear and present danger” test. Holmes said that subversive speech could be banned if the words were of such a nature and used in such a way that they posed “a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.” But a majority of justices later disagreed with him, and for half a century the Supreme Court frequently upheld convictions of people who advocated unlawful conduct without much chance that it would ever happen.
In 1969 the Court essentially adopted Holmes’s test in Brandenburg v. Ohio. In that case the Court ruled that the government cannot forbid people from advocating the use of violence or illegal conduct unless they are advocating others to take “imminent lawless action” and unless their advocacy “is likely to incite or produce such action.” For example, a person urging a mob to storm a jail in order to lynch a prisoner may be prosecuted. But the First Amendment protects a person who merely advocates the use of violence if there is little likelihood that violence will actually occur.
Freedom of speech is not limited to political ideas, but encompasses a wide array of expressions. In recent years, the Court has provided First Amendment protection to commercial advertisements, many types of sexually explicit pictures, most defamatory statements, and hate-mongering proclamations. Freedom of speech also extends beyond newspaper articles and street corner speeches to many other forms of expression. The right also covers public demonstrations, books, billboards, movies, and computer communication. In 1997, the Supreme Court held in Reno v. ACLU that Congress cannot ban “indecent” speech on the Internet. (1)
In this Section about the Influence of the Constitution and Protecting Personal Rights: Constitution Influence, Federal Government Role, Constitutional Regulation of Business and Commerce, Constitutional Protection of Personal Rights, Constitutional Protection of the Right to Privacy, Constitutional Protection of Free Speech, Constitutional Protection of Religious Rights, Constitutional Protection of the Rights of the Accused, Constitutional Protection of Civil Liberties.
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