Freedom of speech in the United States

Freedom of speech in the United States

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. Criticism of the government and advocation of unpopular ideas that people may find distasteful or against public policy, such as racism, are generally permitted. There are exceptions to the general protection of speech, however, including the Miller test for obscenity, child pornography laws, and regulation of commercial speech such as advertising. Other limitations on free speech often balance rights to free speech and other rights, such as property rights for authors and inventors (copyright), interests in fair political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on Hate speech or fighting words), or the use of untruths to harm others (slander). Distinctions are also often made between speech and other acts, such as flag desecration, which may have symbolic significance.

Historical background


During colonial times, English speech regulations were rather restrictive. An English seditious libel law made criticizing the government a crime. . Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the seditious libel law was not a defense.

Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license.


The colonies originally had different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed. Professor Levy said that each community "tended to be a tight little island clutching its own respective orthodoxy and . . . eager to banish or extralegally punish unwelcome dissidents."Fact|date=February 2007

The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's "Laws Divine, Moral and Martial", which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words." [cite web|url= |title=Personal Narratives from the Virtual Jamestown Project, 1575-1705 | |date= |accessdate=2008-09-06]

More recent scholarship, focusing on seditious speech in the 17th-century colonies (when there was no press), has shown that from 1607 to 1700 the colonists' freedom of speech expanded dramatically, laying a foundation for the political dissent that flowered among the Revolutionary generation. See Larry D. Eldridge, "A Distant Heritage: The Growth of Free Speech in Early America" (NYU Press, 1994). Leonard Levy wrote of this book: "Anyone who has not read "A Distant Heritage" cannot know the history of freedom of speech."

The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

The First Amendment

In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government. During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.

The First Amendment was ratified on December 15, 1791. The Amendment states: :"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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."

The Alien and Sedition Acts

In 1798, Congress, which contained several of the drafters and ratifiers of the Bill of Rights at the time, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute; or to excite against them . . . hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States."

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act, however, made ascertainment of the intent of the framers in regard to the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act expired and the Supreme Court never ruled on its constitutionality.

In "New York Times v. Sullivan", the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).

First Amendment interpretation

Freedom of speech in the U.S. follows a graduated system, with different types of regulations subject to different levels of scrutiny in court challenges based on the First Amendment, often depending on the type of speech.

Types of Speech

Core Political Speech

This is the most highly guarded form of speech because of its purely expressive nature and importance to a functional democracy. Most simply, core political speech is interactive communications about political ideas or issues that are not motivated by profit. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.

Commercial Speech

Not wholly outside the protection of the First Amendment is speech motivated by profit. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. Restrictions of commercial speech are subject to a four-element intermediate scrutiny. ("Central Hudson Gas & Electric Corp. v. Public Service Commission")

Types of restraints on speech

Time, place, or manner restrictions

Time, place, or manner restrictions must meet the rational basis test (the lowest level of scrutiny) and are usually upheld, unless their requirements have an especially burdensome impact on speech. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another). Time, place, or manner restrictions must be:

# Content neutral
# A significant governmental interest
# Narrowly tailored
# Leave open ample alternative channels of communication

Content-based restrictions

Restrictions that require examining the content of speech to be applied must pass strict scrutiny.

Viewpoint-based restrictions

Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are almost always overturned, unless they fall into one of the court's special exceptions.

Special exceptions

Obscenity, defined by the Miller test by applying contemporary community standards, is one exception. It is speech to which all of the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)

Fighting words are words or phrases that are likely to induce the listener to get in a fight. This previously applied to words like nigger, but with people getting less sensitive to words, this exception is little-used.

Speech that presents imminent lawless action (earlier, the legal test was for a clear and present danger, but this test has since been replaced by the imminent lawless action test) may also be restricted. The canonical example, enunciated by Justice Oliver Wendell Holmes, is falsely yelling "Fire!" in a crowded movie theater. The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content.

Restrictions on commercial speech, defined as speech mainly in furtherance of selling a product, is subject to a lower level of scrutiny than other speech, although recently the court has taken steps to bring it closer to parity with other speech. This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company).

Prior restraint

If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what's illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would "surely result in direct, immediate and irreparable damage to our Nation and its people" ("New York Times Co. v. United States"). U.S. courts have not permitted most prior restraints since the case of Near v. Minnesota in 1931.


While personal freedom of speech is usually respected, freedom of press and mass publishing encounter some restrictions. Some of the recent issues include:
* United States military censoring blogs written by military personnel.
* The Federal Communications Commission censoring television and radio, citing obscenity, e.g., Howard Stern and Opie and Anthony (Though the FCC only has the power to regulate over the air broadcasts and not cable or satellite television or satellite radio).See also "Roth v. United States"
* Scientology suppressing criticism, citing freedom of religion, e.g., Keith Henson.

As of 2005, United States was ranked 44th of 167 countries in annual Worldwide Press Freedom Index by Reporters Without Borders. In the 2006 index the United States has fallen nine places and is now ranked 53rd of 168 countries. The US ranked 48th in 2007, however, moving back up 5 places.

Freedom of expression

While freedom of expression by non-speech means is commonly thought to be protected under the First Amendment, the Supreme Court has only recently taken this view. As late as 1968 ("United States v. O'Brien") the Supreme Court stated that regulating non-speech can justify limitations on speech. The Court carried this distinction between speech and expression through the early part of the 1980s ("Clark v. CCNV", 1984). It was not until the flag-burning cases of 1989 ("Texas v. Johnson") and 1990 ("United States v. Eichman"), that the Supreme Court accepted that non-speech means applied to freedom of expression and freedom of speech.

Freedom of Speech on the Internet

In a rare 9-0 decision, the Supreme Court extended the full protection of the First Amendment to the Internet in "Reno v. ACLU", a decision which struck down portions of the 1996 Communications Decency Act, a law intended to outlaw so-called "indecent" online communication (that is, nonobscene material protected by the First Amendment.) The court's decision identified the Internet as a "free speech zone," and extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet.

In "United States v. American Library Association" (2003) the Supreme Court ruled that Congress has the authority to require public schools and libraries receiving e-rate discounts to install filters as a condition of receiving federal funding. The justices said that any First Amendment concerns were addressed by the provisions in the Children's Internet Protection Act that permit adults to ask librarians to disable the filters or unblock individual sites.

ee also

*Censorship in the United States
*Clear and present danger
*Fleeting expletive
*Floyd Abrams
*Free speech zone
*"New York Times Co. v. United States"
*Imminent lawless action
*Free speech fights
*Freedom of speech
*Shouting fire in a crowded theater


Further reading

*cite book |title=A Distant Heritage: The Growth of Free Speech in Early America |last=Eldridge |first=Larry |authorlink=Larry Eldridge |year=1994 |publisher=New York University Press |location=New York |isbn=0814721958 |pages=
*cite book |title=Free speech in the United States |last=Chafee |first=Zechariah |authorlink=Zechariah Chafee |coauthors= |year=2001 |origyear=1941 |publisher=Lawbook Exchange |location=Union, NJ |isbn=1584770856 |pages=
*cite book |title=Cyber Rights: Defending Free Speech in the Digital Age |last=Godwin |first=Mike |authorlink= |coauthors= |year=1998 |publisher=Times Books |location=New York |isbn=0812928342 |pages=
*cite book |title=Free Speech in Its Forgotten Years, 1870-1920 |last=Rabban |first=David M. |authorlink= |coauthors= |year=1999 |publisher=Cambridge University Press |location=New York |isbn=0521655374 |pages=
*cite book |title=Freedom of speech in the United States |last=Tedford |first=Thomas L. |authorlink= |coauthors= |year=1985 |publisher=Southern Illinois Univ. Press |location=Carbondale |isbn=0394332563 |pages= Larry D. Eldridge, "A Distant Heritage: The Growth of Free Speech in Early America" (NYU Press, 1994).

External links

* [ A Time for Censorship, a Time for Freedom] - Americans' freedom of speech within the internet and how it is being put in jeopardy.
* [ First Amendment Library entry on Freedom of Expression (links to all of the Supreme Court's free expression cases)]
* [ Congressional Research Service (CRS) Reports regarding Freedom of Speech]

Wikimedia Foundation. 2010.

Look at other dictionaries:

  • Freedom of religion in the United States — In the United States, freedom of religion is a constitutionally guaranteed right provided in the religion clauses of the First Amendment. Freedom of religion is also closely associated with separation of church and state, a concept which was… …   Wikipedia

  • The United States of America —     The United States of America     † Catholic Encyclopedia ► The United States of America     BOUNDARIES AND AREA     On the east the boundary is formed by the St. Croix River and an arbitrary line to the St. John, and on the north by the… …   Catholic encyclopedia

  • Freedom of religion in the United Arab Emirates — The Constitution provides for freedom of religion in accordance with established customs, and the government generally respects this right in practice; however, there were some restrictions. The federal Constitution declares that Islam is the… …   Wikipedia

  • History of religion in the United States — The religious history of the United States begins more than a century before the former British colonies became the United States of America in 1776.Some of the original settlers were men and women of deep religious convictions. The religious… …   Wikipedia

  • Child pornography laws in the United States — specify that child pornography is illegal under federal law and in all states. Although child pornography is widely considered to be obscene, a legal term that refers to offensive or violent forms of pornography that have been declared by… …   Wikipedia

  • Anti-French sentiment in the United States — is the manifestation of Francophobia by Americans. It signifies a consistent hostility towards the government, culture, and people of France that employs stereotypes.Understanding anti French sentimentsAs with any foreign country phobia ,… …   Wikipedia

  • Same-sex marriage in the United States — in the United States and elsewhere. The social movement to obtain the rights and responsibilities of marriages in the United States for same sex couples began in the early 1970s, and the issue became a prominent one in U.S. politics in the 1990s …   Wikipedia

  • Health care reform in the United States — ] Current estimates put U.S. health care spending at approximately 16% of GDP. [ NHE Fact Sheet.asp#TopOfPage National Health Expenditure Data: NHE Fact Sheet, ] Centers for Medicare and Medicaid… …   Wikipedia

  • Portal:Supreme Court of the United States — Shortcut: P:SCOTUS Wikipedia portals: Culture Geography Health History Mathematics Natural sciences People Philosophy Religion …   Wikipedia

  • Firearm case law in the United States — Firearm case law, in the history of the United States, has been directly addressed by the Supreme Court many times. These cases deal with Second Amendment, which is a part of the Bill of Rights, and states:: A well regulated Militia, being… …   Wikipedia