First Amendment: Speech

The second half of the First Amendment guarantees the rights of the people to express themselves:

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.

The First Amendment's prohibition against the abridgment of the freedom of speech, of the the press and of the right to assemble and petition government are the most fundamental and important political rights in America. Without the freedom to speak one's mind, political campaigns and elections would be meaningless. Without a free press, it would be much more difficult to acquire information about government and political leaders. Without the freedom to assemble, the government would be able to regulate who attended political meetings and even church services. And without the right to take their grievances to the government, the people would simply have to accept whatever the government or others did to them. Indeed, without the rights guaranteed in the First Amendment, the American political system could not exist.

While most Americans today take their First Amendment rights for granted, the experiences of the colonists in the 1760s and 1770s made them wary of the new government created by the Constitution. Consequently, it was important to them to have a clearly written statement of the rights on which the government could not infringe. While the expression rights guaranteed by the First Amendment are straightforward on paper, much like the Religion Clauses, their interpretation has not always been easy. Surely the Framers did not mean that anyone could say anything they wanted to or express themselves in any way they chose at any time in any place. While the First Amendment says that the "Congress shall make no law" limiting the freedom of speech, very few people believe that the rights listed in it were meant to be absolute. Such things as lying in a court of law and child pornography are clear examples of speech and expression not protected by the First Amendment. But where should the lines between acceptable and unacceptable forms of expression be drawn? Once again, it would fall to the Supreme Court to decide.

Freedom of Speech and Expression

Whenever the Supreme Court, or any court for that matter, hears a case, it must necessarily strike a balance between competing interests. When an individual is charged with a crime, his or her interests are weighed in the balance of justice, with the interests of society as the counter balance. If there is a dispute over a contract, the court will generally rule in favor of one party and the other party will lose. In hundreds of different kinds of cases, the judges who will decide them must determine where to strike the balance between liberty and order, between individual interests and societal ones.

While each case or controversy must necessarily be judged on its own merits, the scales are tilted heavily in favor of individual expression in free speech cases. Because of the central role of speech and expression in America's system of government and in its political processes, the Supreme Court has granted these rights a uniquely "preferred position." In other words, when individual expression is weighed in the balance against the interests of society, the speech or expression in question must pose a grave or serious threat to society's interests before the Court will allow the individual's freedoms to be limited. The freedoms of speech and expression are not absolute, but they are generally given priority over most other rights and interests. (This approach has sometimes been referred to as a "compelling state interest" test, much like the one used in Free Exercise cases.)

Political Speech

The Court has been particularly protective of political speech (and less protective of other kinds of speech, such as commercial speech). In several different ways, individuals have greater leeway in speaking about politics than they do about other subjects. For example, the First Amendment does not give individuals the right to lie about other people. If someone lies about you in writing (libel) or in speech (slander), you can sue them and collect monetary damages from them for defaming your character. However, if you were a public official, you would have to meet a higher legal standard to collect your money. In a landmark Supreme Court case, New York Times Co. v. Sullivan, a Montgomery, Alabama city commissioner sued the New York Times for running an ad that contained false information about him. While an Alabama court ruled in his favor, the Supreme Court overruled the lower court's decision declaring that:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The Court has also provided broad protection for things that are said, written or broadcast during the course of a political campaign. The Court has even upheld the right of candidates to spend as much of their own money as they choose. In 1974, the Congress passed the Federal Election Campaign Act, part of which set limits on the total amount candidates for federal elective office could spend on their campaigns. In response to challenges brought by several candidates in Buckley v. Valeo, the Court declared the limits on spending a violation of the candidates' First Amendment rights. In its decision, a unanimous Court observed:

In the free society ordained by our constitution, it is not the government, but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign.

However, while the Court rejected overall spending limits for candidates and their campaigns, it let stand limits on the amount that individuals can give to candidates. Why the distinction? When a candidate spends his or her own money on a political campaign, the voters know what they're getting. They can make any adjustments in their voting decisions they choose based on how wealthy a candidate is and how much he or she spent to get elected. In any case, a wealthy individual bankrolling his or her own campaign only directly influences the outcome of one election. However, if a wealthy individual were to give large amounts of money to numerous candidates, that single person would be exerting an inordinate amount of influence on the political process. At the same time, the influence of other less-wealthy individuals would be diluted. To preserve the amount of influence wielded by average citizens in the course of an election, then, the Court let stand limits on the amount of money wealthy individuals can contribute to political campaigns.

Exceptions such as letting the limits on campaign contributions stand are rare in the area of political expression. This seems consistent with what the Framers of the Constitution intended. Indeed, there are protections provided in the Constitution itself for the things House members and Senators say in the course of their official duties as Members of Congress. Among other legal immunities, Article I, Sec. 6 states that Members of the House and Senate "shall not be questioned in any other Place" for "any Speech or Debate in either House." To a large degree, the Framers intended political speech to be as free and open as possible, for it was through the expression of ideas that the people could contribute to, influence and change their government.

Standards for Limiting Expression

In addition to giving the freedom of speech a "preferred" position as it weighs the merits of cases that come before it, the Supreme Court also applies four very specific and strict standards that must be met before a limitation on speech or expression can be deemed constitutional.

First, laws must not exercise what the Court calls "prior restraint." Only in the most extreme circumstances can the government constitutionally prevent someone from speaking or expressing themselves. To do so would be censorship and the standards for taking such an extreme measure bear the "heaviest burden in constitutional law."1 The Court has declared that "a prior restraint . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it, at least for the time."2 Instead of limiting speech that might be defamatory or otherwise illegal before it happens, the Court has ruled that the appropriate action is to undertake civil or criminal proceedings after the fact.

Second, laws limiting speech must be content neutral. If the government enacts a limit on a particular kind of speech or form of expression, such as posting flyers on telephone poles, it must ban all flyers, and not just flyers with a particular subject matter. If only commercial flyers or religious flyers were banned, the law would not be content neutral. The Court has, however allowed some content-based limitations where public interests seem to overwhelm the individual's rights of expression. Kinds of speech that have been constitutionally limited on a content basis include obscenity (see "Defining Obscenity" on the right), libel and slander, "fighting words" (words clearly aimed at starting a fight or provoking violence), and "subversive speech" or speech promoting the violent overthrow of the government.

Defining Obscenity

While the Court has made it clear that obscenity is not protected by the First Amendment, defining obscenity is another matter altogether. Ultimately, the Court has left to juries to decide based on guidelines it has provided. Defendants can then appeal the decision of the jury if they believe the guidelines were misapplied. What are the standards? In Miller v. California, the Court found that a form of speech or expression can be ruled obscene if:

  1. The "average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest."
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

These guidelines are necessarily vague and leave open the possibility of having different definitions of obscenity in Norman, Oklahoma and San Francisco, California. The Internet has further complicated the definition of obscenity because there is no obvious community standard on which to base it. 

Third, laws limiting speech or expression cannot be vague to the extent that they cause a "chilling effect" on speech. If ambiguous or unclear restrictions are placed on expression, individuals may not know what is acceptable under the law and what is not. To avoid the penalty of breaking the law, some people may choose to limit the the things they say and express more severely than the law intended. When this occurs, the law has produced a "chilling effect" on speech, making individuals less likely to speak openly and freely. Such laws, the Court has ruled, are unconstitutional.

Finally, a law or ordinance limiting speech or expression can only be deemed constitutional if it is the least drastic means available for accomplishing its stated objectives. For example, there is a clear public interest in keeping streets safe and, to the degree possible, free from congestion. Toward this end, a city might decide to ban all parades or marches on its streets. Such a ban, however, would not be the least restrictive means available. Instead, limiting the time and duration of parades and marches and requiring prior public notice of them would achieve the stated goals of the more restrictive law without unduly infringing on the individual freedom of expression.

Freedom of Expression on the Internet

The Internet presents a classic example of the difficulties that often arise in the Supreme Court's efforts to distinguish between acceptable and unacceptable speech and expression. While the Internet affords ordinary citizens unprecedented access to information and gives them the ability to communicate with large numbers of people without ever leaving their homes, it has also given rise to several new First Amendment controversies. Most notably, there are thousands of sites on the internet that contain pornographic and violent material. Much of it would be considered obscene in many communities in the United States. Such materials have always existed--the Internet just makes it more easily accessible. The problem posed by the presence of these materials on the Internet, however, is that children can gain access to text and images that are intended for adults or that may even be illegal.

In an effort to protect children from being exposed to pornographic or violent images on the Internet, the Congress passed the Communications Decency Act in 1995 (CDA). The law would have made it a crime to transmit "indecent material" to minors over the Internet. Doing so would have been punishable by up to two years in prison and a fine of $250,000.

What Can't You Say (Write) on the Internet?

The kinds of material that can legally be published on the Internet, however, is still being defined by the Court. A federal court judge ruled in favor of a high school student who was suspended for publishing information critical of his band instructor on his personal web site, ordering the school to terminate the suspension and to cease efforts to control what the student published on his web page.4 In another case, however, a federal judge ordered the authors of an anti-abortion web site to take the site off the Internet. The site included a list of names of doctors who performed abortions. Doctors who had been murdered had their names crossed out and those who had been injured in attacks on abortion clinics had their names listed in gray. In spite of the court's order, however, there are still several sites on the Internet with lists of abortion doctors, similar to the one on the original site.5

In response to a challenge of the Act, Reno v. ACLU,  the Court declared the CDA unconstitutional because it:

  1. Was not content neutral. In fact, Justice Stevens, who wrote the decision, declared that "the CDA is a content based blanket restriction on speech" because it explicitly singles out indecent material, i.e. profanity, vulgarity and pornography.
  2. It was too vague. While the Congress sought to limit "indecent" material on the Internet, what was meant by "indecent" was unclear. Because of this ambiguity, several web sites removed constitutionally protected materials from their pages. The Court found that the "chilling effect" of the CDA's ambiguity "suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
  3. It was not the least drastic means available for keeping minors from viewing indecent material. Instead of making the transmission of such materials a criminal act, the Congress could have encouraged (and possibly mandated) a web site rating system or the use of filtering software.

Because the Internet presents challenges so different from those we have seen in the past and because the Court makes decisions on a case by case basis, it is difficult to summarize the broad principles that guide the Court's approach to expression on the Internet. As more cases arise and are heard by the Supreme Court and lower courts, however, a more clear pattern will eventually emerge.

Exceptions to Free Speech Protection

Some exceptions to the Supreme Court's usually broad definition of protected speech have been mentioned above (obscenity, libel and slander). In general, constitutional limits on speech and expression fall into three categories: content restrictions, place restrictions and symbolic speech. Under the circumstances that apply in each of these categories, speech and expression may not be afforded as much protection as they would be under ordinary conditions.

Content Restrictions

As has been noted, obscenity and defamation are not protected by the First Amendment. Additionally, the Court has allowed speech to be restricted in certain places. While public forums, such as parks and the steps of the United States Capitol, are offered almost blanket protections on speech, public libraries, court rooms, public schools and jails are not. The Court has ruled that in the interests of order and decorum, speech and expression may be reasonably limited in these places.

Additionally, speech that presents a "clear and present danger" may, in some instances, be unprotected by the First Amendment. The most famous statement of this doctrine is found in a decision arising from the Espionage Act of 1917 and the Sedition Act of 1918 which, among other things, made it a punishable offense to obstruct the draft, cause insubordination in the armed forces or make false statements that might hamper the war effort. The case centered on the actions of a man who had mailed circulars to draft-eligible men claiming that the draft was unconstitutional. Writing for the Court, Justice Oliver Wendell Holmes wrote in Schenck v. United States (1919):

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

While the Court no longer relies on the "clear and present danger" test to determine if limits on speech are constitutional, support remains for the notion that certain kinds of speech or expression can be limited, especially during war time, if they would clearly harm the nation, its people or its military forces. The Court now, however, makes a distinction between abstract or theoretical statements that are critical of the government and clear calls to action promoting violence against the government (see Footnote 3).

Commercial speech has also been afforded less protection than other kinds of speech. In the case of advertising, for example, the Court has generally ruled that the public interest demands that claims made about a product or service be accurate and not misleading. Commercial speech is still afforded a great deal of protection under the First Amendment, but not the same degree as other forms of speech.

A final type of expression that can be constitutionally limited is symbolic speech. While the First Amendment explicitly forbids the Congress from abridging the freedom of speech, there are many forms of communication that do not, in whole or in part, rely on words. Although the Supreme Court has provided protection for many different modes of "expression," the more action that is involved in a form of expression, the less First Amendment protection it receives. For example, the First Amendment protects the rights of individuals to use words to express racist attitudes, but it does not always protect their right to burn crosses to express those same views. (Cross burnings have been allowed under some circumstances; but, where other laws, such as prohibitions on open fires or no trespassing ordinances, are violated by doing so, the action is not protected by the First Amendment.)

One of the most famous cases involving symbolic speech addressed the burning of a draft card. The defendant in the case burned his draft card in front of a large crowd to express his beliefs that the war in Vietnam was unjust and immoral. He was subsequently arrested and convicted of violating the Universal Military Training and Service Act. In response to an appeal of the conviction (United States v. O'Brien), the Court emphatically stated that burning one's draft card was not a form of expression protected by the First Amendment:

We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. . . . [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Freedom of the Press

The Framers of the Constitution considered the freedom of the press one of the fundamental rights of the people in a republic. Illustrative of this belief is a statement of Thomas Jefferson in a letter written to Edward Carrington in 1787:

The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.

Given the widespread use of "papers" and pamphlets in the battle for ratification of the Constitution, it is not surprising that the Framers placed such a high value on the ability of people to write, print and distribute statements of their beliefs.

The Press in Other Countries

American's often take for granted many of the liberties they enjoy. For example, we just assume that the press will not be punished for writing articles or reporting stories critical of the government. The press in other nations does not enjoy such wide latitude. In the summer of 1999, the government of Tanzania imposed a seven-day ban on a newspaper that ran a story about a proposed salary increase for government officials. The government claimed the article in question was "fanning discontent and hatred among the people towards the government."6

Consistent with the Framer's support for the freedom of the press and the First Amendment, the Supreme Court has generally upheld the ability of the press to print or broadcast messages and images of its choice. (The obvious exceptions to this protection include obscenity and defamation.)

Several cases have arisen challenging the freedom of the press to report what it chooses or of laws limiting that freedom. Many of these cases overlap significantly with other First Amendment cases, such as the New York Times defamation case cited above. Consequently, the same privileges that are protected at the individual level are also enjoyed by the press. One major exception is the Court's stance that the First Amendment does not give reporters the right to withhold information they gathered confidentially. If called to testify, the reporter may have to divulge the sources of information they have reported (see Branzburg v. Hayes). 

In two separate cases, the Court ruled that the rights enjoyed by the print media are, in some cases, broader than those enjoyed by the broadcast media (radio and television). While newspapers do not have to provide space for persons to respond to negative stories about them, radio and television stations may be required to provide airtime. Why the difference? The government regulates the number of radio and television signals that can be broadcast in a give geographical area. Consequently, there are a limited number of radio and television stations in a city or town. If someone is criticized on television or on the radio, there are a limited number of places he or she can go to respond. Newspapers, however are not limited by the government. Anyone with a printing press (or a copying machine) can produce a "paper" and distribute it. If someone is criticized in a newspaper, the Court does not require that paper to give them the chance to respond because there are numerous different ways in which they could respond, even printing their own paper.

Freedom of Assembly & Petition

The last and most frequently neglected rights guaranteed by the First Amendment are the right to assemble and to petition the government. While the rights of assembly and petition are intimately connected to the freedom of expression, they are necessarily limited in important ways. In particular, in cases involving the freedom of assembly, the Supreme Court has not given as much weight to individual rights as it does in other First Amendment cases. For example, when a man gave a speech on a public street in New York protesting racial discrimination and a large unruly crowd assembled, the Court ruled that the police were justified in stopping the speech and sending the crowd home (see Feiner v. New York). In that case, the Court gave greater weight to the preservation of public safety and order than it did to the rights of the people to assemble and express themselves in public.

In other ways, however, the Court has upheld the rights of the people to assemble and to have some realm of privacy within the context of their meetings. Alabama's efforts to force the NAACP to make public its membership lists, for example were found unconstitutional. When people assemble peacefully and there is no immediate threat to public safety, the Court has upheld the right to assemble in public places.

One of the more recent assembly controversies centers on the rights of protesters at or around abortion clinics.

In 1991, the United States Congress passed the Freedom of Access to Clinic Entrances Act (FACE) (U.S. Code 18 Sec. 248). The Act made unlawful any action that:

. . . by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.

The law also allows for the Courts to "award appropriate relief, including temporary, preliminary or permanent injunctive relief" in response to violations of the law. Pro-Life activists have repeatedly challenged the law on the grounds that it violates their First Amendment rights of expression and assembly. The courts have consistently rejected such arguments maintaining that protesters may assemble and express themselves so long as they do not forcibly attempt to prevent people from entering abortion clinics.

1. Rex Lee, A Lawyer Looks at the Constitution (Provo: Brigham Young University, 1981), 112.
2. United States Supreme Court, CBS, INC. v. DAVIS (1994)
3. In cases dealing with "subversive speech," the Supreme Court has ruled that only if the speech or expression under review can be show to have directly promoted and led to a conspiracy or actual effort to overthrow the government, it cannot be limited. Speaking of the overthrow of the government in abstract terms, without laying out or calling for specific actions to accomplish it, is protected by the First Amendment.
4. Associated Press, "Court lets student keep Web site," USA Today 19 March 1998, Tech Report.
5.Courtney Macavinta, "Anti-abortion sites vs. free speech," CNET 12 March 1999.
6. Associated Press, "Newspaper Banned," 24 July 1999.