Freedom of Speech

AuthorJeffrey Lehman, Shirelle Phelps

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The right, guaranteed by the FIRST AMENDMENT to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.

Democracies have long grappled with the issue of the limits, if any, to place on the expression of ideas and beliefs. The dilemma dates back at least to ancient Greece, when the Athenians, who cherished individual freedom, nevertheless prosecuted Socrates for his teachings, claiming that he had corrupted young people and insulted the gods.

The Framers of the Constitution guaranteed freedom of speech and expression to the citizens of the United States with the First Amendment, which reads, in part, "Congress shall make no law ? abridging the freedom of speech." Almost since the adoption of the BILL OF RIGHTS, however, the judiciary has struggled to define speech and expression and the extent to which freedom of speech should be protected. Some, like Justice HUGO L. BLACK, have believed that freedom of speech is absolute. But most jurists, along with most U.S. citizens, agree with Justice OLIVER WENDELL HOLMES JR., who felt that the Constitution allows some restrictions on speech under certain circumstances. To illustrate this point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" (SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

During the two centuries since the adoption of the First Amendment, the U.S. Supreme Court has held that some types of speech or expression may be regulated. At the same time, the Court has granted protection to some areas of expression that the Framers clearly had not contemplated.

Public Forum Regulation

When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the U.S. Supreme Court examines whether the regulation restricts the content of the speech or merely regulates the time, manner, and place in which the speech is delivered.

If the law regulates the content of the expression, it must serve a compelling state interest and must be narrowly written to achieve that interest (Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L.

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Ed. 2d 794 [1983]). Restrictions on speech in a public forum also may be upheld if the expressive activity being regulated is of a type that is not entitled to full First Amendment protection, such as OBSCENITY.

Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression. These so-called content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communication (see Perry). It is not necessary that a content-neutral law be the least restrictive alternative, but only that the government's interest would be achieved less effectively without it (Ward v. Rock against Racism, 491 U.S. 781, 109S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).

An important distinction is drawn between public premises that serve as traditional public forums and those that constitute limited public forums. For example, state fair grounds are public premises that have not traditionally served as public forums. The government may impose more restrictions on free speech in limited public forums than in traditional public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds.

The Court reaffirmed in Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed.2d 783 (2002) that local governments do not violate the First Amendment when they require the obtaining of a permit before individuals can hold large-scale rally events in public parks. In this case, the Chicago Park District denied a rally permit to a group that had sought to hold a "Hempfest." The park district denied the permit because of violations of park rules at previous events run by the organizers. The group challenged the denial, arguing that the park district could use its unfettered discretionary power to deny permits to those who held unpopular or controversial political views, such as support for the legalization of marijuana. The U.S. Supreme Court held that the park district's ordinance was a constitutionally permissible "content-neutral" regulation of time, manner, and place. It was directed toward all activity in a public park, not just toward communicative or political activity. It did not constitute subject-matter CENSORSHIP

A Hare Krishna follower speaks to men in a public park, a traditional public forum in which freedom of speech is protected. In a 1981 decision, the Court upheld limitations on the distribution of religious material in limited public forums such as state fair grounds.


in any way. The Court explained that the park district's object was to coordinate multiple uses of limited space; to assure preservation of park facilities; to prevent dangerous, unlawful, or impermissible uses; and to assure financial accountability for damages caused by an event.

Although it seems reasonable to assume that public premises owned and operated by the government are public forums, some are not. In Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17L. Ed. 2d 149 (1966), the U.S. Supreme Court upheld the TRESPASS conviction of students who demonstrated on the grounds of a jail. Although jailhouse grounds are public property, they have not been used traditionally as public forums: "No less so than a private owner of property, the state has the power to preserve the property under its control for the use to which it is lawfully dedicated." Later cases challenging restricted access to public premises focused on whether the government, in creating the premises, had intended to create a public forum. In United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld a postal-service regulation that bars the solicitation of contributions on a post office's sidewalk, because that sidewalk lacked the characteristics of a general public sidewalk. Similarly, it

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A member of the Ku Klux Klan at a 1997 rally held in Pennsylvania. Freedom of speech is guaranteed to groups that many people may find offensive.


declared an airport terminal to be a nonpublic forum because "the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity" (International Society for Krishna...

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