Freedom of Speech

Author:Thomas I. Emerson

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Freedom of speech is guaranteed in the American Constitution by the FIRST AMENDMENT. Adopted in 1791 as the first provision of the BILL OF RIGHTS, the First Amendment reads (excluding the clauses on religion): "Congress shall make no law ? abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Although the provision names four specific

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rights?freedom of speech, FREEDOM OF THE PRESS, FREEDOM OF ASSEMBLY, and FREEDOM OF PETITION?the several guarantees have never been clearly differentiated; rather the First Amendment has been construed as guaranteeing a composite right to freedom of expression. The term "freedom of speech," therefore, in popular usuage as well as in legal doctrine, has been considered roughly coextensive with the whole of the First Amendment.

The precise intentions of the framers of the First Amendment have never been entirely clear. The debates in Congress when the amendment was proposed do not throw much light upon the subject. The right to freedom of speech derives from English law and tradition. And it is agreed that the English law of the time, following the lapse of the censorship laws at the end of the seventeenth century, did not authorize advance censorship of publication. The English law of SEDITIOUS LIBEL, however, did provide punishment, after publication, for speech that criticized the government, its policies or its officials, or tended to bring them into contempt or disrepute. These features of English law were under severe attack, both in England and in the American colonies, but whether the First Amendment was meant to abolish or change them has been a matter of dispute. Similarly, the application of the First Amendment to other aspects of free speech, such as civil libel, OBSCENITY, and the like, remained obscure.

Passage of the ALIEN AND SEDITION ACTS in 1798, which incorporated much of the English law of seditious libel, stimulated public discussion of the meaning of the First Amendment. The constitutional issues, however, never reached the Supreme Court. Nor, despite widespread suppression of speech at certain times in our history, such as took place during the abolitionist movement, the CIVIL WAR, and the beginnings of the labor movement, did the Supreme Court have or take the occasion to address in any major way the development of First Amendment doctrine. The reason for this failure of the constitutional guarantee to be translated into legal action seems to lie partly in the fact that the Bill of Rights had been construed by the Court to apply only to action of the federal government, not to state or local governments; partly in the fact that, insofar as suppression emanated from federal sources, it was the executive not the legislature that was involved; and partly in the fact that the role of the courts in protecting CIVIL LIBERTIES had not matured to the point it has reached today.

In any event this state of affairs ended at the time of WORLD WAR I. Legislation enacted by Congress in 1917 and 1918, designed to prohibit interference with the war effort, raised clear-cut issues under the First Amendment. Beginning in 1919, a series of cases challenging the wartime legislation came before the Supreme Court. These were followed by cases arising out of the Red scare of the early 1920s. In 1925, in Gitlow v. United States, the Court accepted the argument that the First Amendment was applicable to the state and local governments as a "liberty" that could not be denied without DUE PROCESS OF LAW under the FOURTEENTH AMENDMENT. It also became clear that, while the First Amendment literally refers only to "Congress," its provisions extend not only to the legislature but to the executive and judicial branches of government as well. As the First Amendment has come to be applied to more and newer problems growing out of the operation of a modern technological society, there has developed an extensive network of principles, legal rules, implementing decisions, and institutional practices which expand and refine the constitutional guarantee.

The fundamental values underlying the concept of freedom of speech, and the functions that principle serves in a democratic society, are widely accepted. They have been summarized in the following form:

First, freedom of speech is essential to the development of the individual personality. The right to express oneself and to communicate with others is central to the realization of one's character and potentiality as a human being. Conversely, suppression of thought or opinion is an affront to a person's dignity and integrity. In this respect freedom of speech is an end in itself, not simply an instrument to attain other ends. As such it is not necessarily subordinate to other goals of the society.

Second, freedom of speech is vital to the attainment and advancement of knowledge. As JOHN STUART MILL pointed out, an enlightened judgment is possible only if one is willing to consider all facts and ideas, from whatever source, and to test one's conclusion against opposing views. Even speech that conveys false information or maligns ideas has value, for it compels us to retest and rethink accepted positions and thereby promotes greater understanding. From this function of free speech it follows that the right to express oneself does not depend upon whether society judges the communication to be true or false, good or bad, socially useful or harmful. All points of view, even a minority of one, are entitled to be heard. The MARKET-PLACE OF IDEAS should be open to all sellers and all buyers.

Third, freedom of speech is a necessary part of our system of self-government. ALEXANDER MEIKLEJOHN, the leading exponent of this view of the First Amendment, stressed that under our Constitution, sovereignty resides in the people; in other words, the people are the masters and the government is their servant. If the people are to perform their role as sovereign and instruct their government, they must have access to all information, ideas, and points of view. This right of free speech is crucial not only in determining policy but in checking the government in its implementation of policy. The implication of this position is that the government has no authority to determine

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what may be said or heard by the citizens of the community. The servant cannot tell the master how to make up its mind.

Fourth, freedom of speech is vital to the process of peaceful social change. It allows ideas to be tested in advance before action is taken, it legitimizes the decision reached, and it permits adaptation to new conditions without the use of force. It does not eliminate conflict in a society, but it does direct conflict into more rational, less violent, channels. From this it follows, in the words of Justice WILLIAM J. BRENNAN in NEW YORK TIMES V. SULLIVAN (1964), that speech will often be "uninhibited, robust, and wide-open."

There is also general agreement that speech is entitled to special protection against abridgment by the state. Freedom of thought and communication are central to any system of individual rights. Most other rights of the person against the collective flow from and are dependent upon that source. Moreover, speech is considered to have less harmful effects upon the community?to be less coercive?than other forms of conduct. And, as a general proposition, the state possesses sufficient power to achieve social goals without suppressing beliefs, opinions, or communication of ideas. Hence, in constitutional terms, freedom of speech occupies a "preferred position."

One further background factor should be noted. Toleration of the speech of others does not come easily to many people, especially those in positions of power. As Justice OLIVER WENDELL HOLMES remarked in ABRAMS V. UNITED STATES (1919), "If you have no doubt of your premises or your powers and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition." Hence the pressures leading to suppression of speech are widespread and powerful in our society. The mechanisms for protecting freedom of speech, therefore, must rely heavily upon an independent judiciary, standing somewhat outside the fray, and upon the creation of legal DOCTRINES that are precise and realistic.

The principal controversies that have engaged our system of freedom of speech have concerned the formulation of these implementing rules. In general the issues have centered on two basic questions. The first is what kind of conduct is to be considered "speech" entitled to special protection under the First Amendment. The second concerns what degree of protection, or encouragement, must be given that speech under the constitutional mandate.

As to the first question?the issue of coverage?it has been argued from time to time that certain categories of speech are totally outside the purview of the First Amendment. Thus it has been contended that totalitarian and racist groups should not be permitted to advance antidemocratic ideas. The argument has been that political groups that would destroy democratic institutions if they came to power should not be entitled to take advantage...

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