Free Speech

Free Speech in the United States

Corporate Power, Free Speech, and Democracy

According to the Encyclopedia of the American Constitution, although corporations do not enjoy all constitutional rights enjoyed by individuals-for example, neither the right against self-incrimination under the Fifth Amendment nor the right against interstate discrimination under the privileges and immunities regime.

Holmes and Free Speech

Also, in the Encyclopedia of the American Constitution is said tht Justice oliver wendell holmes, Jr. is the judicial architect of the tradition of freedom of speech in American constitutional law. According to that mythology, because of the Holmes’s formulation of the clear and present danger test for evaluating subversive.

Free Speech in American History

The first written protection of free speech in America was the Massachusetts Body of Liberties in 1641. This document was a great step forward from the English charters of liberty because neither the Magna Carta in 1215, nor later the English Bill of Rights in 1689, included freedom of speech or the press. After the American Revolution, the newly independent states formed constitutions, several of which mentioned freedom of speech. However, only three states added freedom of speech to their list of proposed amendments when ratifying the U.S. Constitution.

Only seven years after the First Amendment was approved in 1791, the nation erupted in a controversy over the extent of free speech. Under English law, the mere act of criticizing the government was a form of treason known as sedition. During a period of intense political rivalry, President John Adams and his Federalist allies in Congress enacted the Sedition Act of 1798, which essentially outlawed criticism of the U.S. government. The law was enforced primarily against Adams’s political opponents, Thomas Jefferson and his Democratic-Republican Party. The first person convicted under the act was Rep. Matthew Lyon of Vermont, who won reelection to Congress from his jail cell. Lyon had accused Adams of “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” Another man was fined for making a derogatory comment about Adams’s rear end.

Although truth was technically a defense against sedition in American law, colorful metaphors were difficult to prove factually before the Federalist-dominated judiciary. Consequently, the Democratic-Republicans never challenged the Sedition Act before the Supreme Court. Instead, Jefferson and James Madison wrote the Virginia and Kentucky Resolutions, which asserted that states had the power to declare laws like the Sedition Act unconstitutional. With the help of the unpopular Sedition Act, Jefferson and his party won both the presidency and Congress in the election of 1800. The Sedition Act expired in 1801, and not until 1917 was another national sedition law passed.

Cities often banned public speaking on street corners during the early 1900s in order to stop union organizing. The Industrial Workers of the World, or Wobblies, led many free speech fights in the West to oppose these laws.

However, state and local governments limited free speech in several ways between 1800 and 1917. During this time, the First Amendment did not apply to the states. Southern states censored the mail throughout the antebellum period to keep out abolitionist materials. Proslavery legislators also prevented Congress from hearing petitions opposing slavery. After the Civil War, the labor movement led the battle for free speech. Using permit systems, local governments closed streets and public parks to labor activists.

Labor unions also claimed that picket lines for striking workers were protected speech, but businesses regarded them as coercive action. Courts often issued injunctions to prevent strikes.

During World War I, Congress passed another sedition law to restrict criticism of the war. The Espionage Act of 1917 prohibited any interference with the draft, as well as “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” The federal government convicted more than two thousand people of violating the Espionage Act. Many of them appealed their convictions to the Supreme Court, and for the first time in its history the Court ruled on free speech issues. In Schenck v. United States (1919), the Supreme Court held that the Espionage Act did not violate the First Amendment. With that case, the Court began a long process of answering two questions: what is free speech, and what are its limitations?

(Pure speech is a speech that involves only spoken words, without actions speech-plus speech that combines spoken words with action, such as demonstrations and picketing symbolic speech actions that are themselves a message, without spoken words; also known as “expressive conduct”)

What Is Free Speech? The Supreme Court has repeatedly ruled that freedom of speech consists not only of spoken words but also other types of expression. The Court categorizes free speech activities as either pure speech, such as debates and public meetings that involve spoken words alone, or speech-plus, such as demonstrations and picketing that combine speech with action. Pure speech receives the highest form of First Amendment protection; government may regulate the action components of speech-plus. In Thornhillv. Alabama (1940), the Supreme Court ruled that nonviolent picketing is included in freedom of speech.

Symbolic Speech

Another type of speech is symbolic speech. Also known as “expressive conduct,” symbolic speech consists of actions that are themselves a message, without spoken words. Some examples of symbolic speech are burning a draft card and burning an American flag. The Supreme Court has treated these two examples very differently.

In United States a O’Brien (1968), the Court ruled that burning a draft card was not protected by the First Amendment, even though intended as a form of protest against the Vietnam War. The Court held that the government had a valid purpose in punishing the destruction of draft cards, which were necessary to raise and support an army. The goal of the government’s action was to maintain the draft, not prevent dissent, said the Court.

But in Texas v. Johnson (1989), the Supreme Court ruled that burning the U.S. flag was protected by the First Amendment. The Court struck down a Texas law that prohibited the desecration of the American flag in a way “the actor knows will seriously offend” other people. Gregory Lee “Joey” Johnson had burned a flag outside the 1984 Republican National Convention in Dallas as part of a political demonstration. The Court held that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

To counteract the Court’s decision, Congress passed the Flag Protection Act of 1989. That law prohibited flag desecration regardless of whether bystanders were offended. Nonetheless, in United States v. Eichman (1990), the Court held that the law violated the First Amendment because it punished any person “who knowingly mutilates, defaces, physically defiles,… or tramples upon any flag.” Such terms, the Court said, outlawed disrespect for the flag, not the physical destruction of it. The Court noted mat burning is the proper way to dispose of a tattered flag. Thus, argued the Court, the Flag Protection Act was punishing a person for the reason he burned the flag, which violated freedom of speech. Congress has repeatedly attempted to pass a constitutional amendment to outlaw flag desecration since the Eichman decision in 1990. As of 2002, all fifty states had passed resolutions saying they would ratify such an amendment if Congress passed it.

Public Forums

One of the concepts most fundamental to freedom of speech is the public forum, a venue such as a street or public park that is normally open to free speech activities. In such places, the government cannot ban the right to freedom of expression, although it can regulate the “time, place, and manner” of such speech. These regulations must be “content neutral” and cannot discriminate based on the nature of the message being expressed. For example, the government can prohibit amplified speech in public parks after dark, but it cannot make the rule apply only to ana’abortion activists.

The Right Not to Speak

The government cannot compel a person to speak. The Supreme Court upheld this principle in West Virginia State Board of Education v. Barnette (1943), ruling that Jehovah’s Witness children could not be expelled from school for refusing to salute the flag. In another case involving a Jehovah’s Witness, Wooley n Maynard (1977), the Court held that citizens do not have to become “mobile billboards” for the state. Maynard was arrested for repeatedly covering up the words “Live Free or Die” on his automobile’s license plate. Maynard argued that the New Hampshire motto violated his religious beliefs about salvation.

Free Speech and Expression Rights of Students

Homeowners’ Association Defense: Free Speech

This section examines the Homeowners’ Association Defense: Free Speech subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.

Free Speech: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Free Speech. This part provides references, in relation to Free Speech, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Free Speech by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Free Speech and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Free Speech or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Free Speech and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Free Speech. Finding these decisions can be challenging. In many cases, researchers about Free Speech should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Free Speech when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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