"Freedom of Speech" in the United States Constitution

Xinyi WANG

Perspectives, Vol. 2, No. 5

"Censorship is an almost irresistible impulse when you know you are right. But when we look back at all that used to be seen as the truth, we know that we must keep a free market of ideas open. The best test of truth is the ability to get accepted in the market." ---- Justice Oliver Wendell Holmes

The First Amendment of the United States Constitution, adopted in 1791, provides that "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." This article, trying to give a brief introduction to the "freedom of speech" clause, will focus on the following two issues: why speech receives constitutional protection, and what the scope of protection is as envisioned by those who drafted, defended and enacted the First Amendment.

The most accepted justification for freedom of speech has been the theory of the market place of ideas, which holds that truth will emerge from an open competition of ideas. In as early as 1644, the English poet John Milton clearly articulated this theory in defense of free speech: "[T]hough all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter." Later, Justice Holmes gave this theory a classical American version in his judicial opinion: "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

Should the right to freedom of speech extend to extremely offensive opinions as well? For instance, should we protect the advocacy of employing genocide to solve problems of difficult-to-integrate ethnic minorities? Should we allow someone to advocate in public that women should be barefoot and homebound? The answer is "Yes." The marketplace logic implies that any ideas having even the slightest redeeming social value should enjoy full protection. History has taught us again and again that the conventional wisdom of society often turns out to be wrong. The First Amendment's basic guarantee is that of freedom to advocate ideas, including unorthodox ideas, controversial ideas, and even ideas offensive to the prevailing climate of opinion. In regulating speech, the government should be neutral toward different ideas.

Although the marketplace theory is dominant in explaining why speech merits special protection, there are some other justifications of such protection worth mentioning here. Some legal scholars have proposed the "liberty theory," according to which freedom of speech is part of the liberty of the person fostering individual self-realization and self-determination. Freedom of speech thus becomes part of a larger right to freedom of self-expression and personal development. Another important approach advanced by scholars is the "tolerance theory," which maintains that the special value of freedom of speech lies in its ability to promote and teach tolerance. In this view, in a heterogeneous society, adherence to the value of free speech itself constitutes a bulwark against intolerance in its many pernicious, society-threatening forms (racial intolerance, religious intolerance, etc.). The tolerance theory emphasizes self-restraint as the appropriate response to even the ideas that we personally may hate. Through the exercise of tolerance we learn how to participate in a democratic, oftentimes conflict-ridden society.

Although freedom of speech, being a systematic right, is entitled to heightened protection from the government, this protection is not absolute. Our common sense tells us that freedom of speech does not include the right to tell the cashier, "I have a gun, give me the money;" nor to falsely tell a child that his or her parents have just died. As Justice Holmes said, "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

In legal practice, the Supreme Court imposes some very narrow restrictions on freedom of speech by defining a few established categories of speech, which are deemed not fully protected under the First Amendment. These categories have traditionally included advocacy of imminent illegal conduct, defamation, obscenity, and fraudulent misrepresentation. Unless the speech falls within one of these established categories, it is simply not open to the government to argue that the speech should be suppressed because of its harmful content. This can be illustrated by a closer examination of some of these categories.

One accepted basis for regulating speech is proof that the speech in question may cause imminent illegal action. The Supreme Court has generally tried to distinguish between general political dissent and advocacy of abstract theories on the other hand and incitement of particular illegal acts on the other. The dividing line between legal advocacy and illegal incitement of criminal conduct is drawn by the use of the "clear and present danger" test. The government cannot punish speech because it has a tendency, or even a reasonable possibility, of inciting illegal conduct. Before the government can punish speech on the grounds of incitement, a three-part criterion must be met. First, the speech must be directed to inciting lawless action. Second, the advocacy must be calling for imminent breaking of the law, rather than illegal conduct at some future time. Finally, the advocacy must be likely to produce such conduct. This clear and present danger test focuses on the probability and imminence of the danger arising from the speech in question. Up to the point of clear and present danger, the evil to be prevented by outlawing the advocacy is not as great as the harm of outlawing it. At the point at which a clear and present danger becomes evident, the evil to be prevented by outlawing the advocacy of illegal conduct outweighs any damage to the right of free speech, including advocacy of illegal conduct.

The "clear and present danger" test is a very high standard to meet. In Hess v. Indiana, an antiwar protester used words such as "we'll take the fucking street later". The Supreme Court concluded that this statement could be interpreted as advocating any action. Further, it was not likely to produce imminent disorder since "at worst it amounted to nothing more than advocacy of illegal action at some indefinite future time." In NAACP v. Claiborne Hardware Co. a civil rights activist told a black audience: " If we catch any of you going in any of them racist stores, we are going to break your damn neck." The Supreme Court concluded, however, that advocacy of force and violence alone would not justify suppression. A speaker must be free "to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause." When such appeals do not incite the illegal conduct, the right to advocacy is protected.

Another well-established category of unprotected speech is defamation. False statements of fact prevent the marketplace of ideas from functioning fairly to let ideas stand or fall on their own merits. Therefore, publicizing false facts should not be protected by the right to free speech and expression. However, the line between false statements of fact and political opinion is sometimes hazy. Is "Clinton is a crook and Hilary a bitch" a statement of fact or a presentation of personal political opinion? Society highly values a citizen's right to criticize elected leaders. The Court, in New York Times v. Sullivan, announced, at least in the case of defamation of public figures, that the First Amendment protects the speaker unless the false, defamatory statement is made with knowledge that it was false or with reckless disregard of whether it was false or not.

Plaintiff in New York Times was a public official whose duties included supervising the Montgomery, Alabama Police Department. He alleged that the Times had libeled him by printing an advertisement that stated that the Montgomery police had attempted to terrorize Martin Luther King and his followers. The Supreme Court viewed this case as one involving criticism of government policy and not merely factual statements about an individual. Noting that the First Amendment was fashioned to assure unfettered interchange of ideas, the Court reiterated the Constitutional faith in the power of reason as expressed through public debate. Justice Brennan said in his opinion that public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Still the marketplace logic does not require that all defamation be protected. While the New York Times rule fully covers speech that stems from honest participation in the marketplace of information and ideas, it need not protect a false statement made with actual malice. As Brennan later explained, the "calculated falsehood is no essential part of any exposition of ideas" and should not be protected under the Constitution.

In the above, we have discussed government regulation of expression based on what is being said-the content of the message. Excluding the categorical exceptions, we can generally say that content-based regulation is invalid. The Supreme Court has recognized that the government might adopt content-neutral regulations involving restrictions which, without regard to the message being communicated, may accidentally interfere with First Amendment expression. For example: the government may remove newspaper racks because they block the sidewalk, or the government may prohibit distribution of leaflets in the downtown area for environmental and sanitary reasons. In consideration of societal interests such as public safety, the Supreme Court upheld rules that might limit our freedom of speech-not because of a message's content but because of its context. Rules that regulate when, where and how a message is expressed are called time, place, or manner restrictions.

In general, the Supreme Court has applied a balancing test to determine whether the government's non-speech regulatory interest in content-neutral regulation of speech-related conduct outweighs the extent of accidental interference with the speech. Time, place or manner restrictions will not be upheld unless they are justified without reference to the content of the regulated speech; they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.

In theory, this three-pronged test does not adversely affect the marketplace of ideas. However, content-neutral regulation raises a host of problems. There is the question as to the wisdom of drawing a distinction between content-based and content-neutral regulation in the first place. There is a concern that debate in the market place will be weakened by people's inability to participate, and an otherwise properly functioning marketplace might break down if the government over-regulates how the people's ideas can be voiced. And finally, in practice, the test might be more often interpreted to the detriment of dissident viewpoints.

The above has provided an illustration of the basic structure of current freedom of speech law in the United States. The central ideas of the free speech tradition have been crucial for democratic government and the right to dissent. The law has developed over the course of American history and was achieved only after years of struggle by courageous people. And the evolution of this area of law is a continuous process. The future is waiting to be seen as new technology brings new challenges to the freedom of speech.

(The author is a J.D. candidate at Vanderbilt Law School.)