Freedom of speech and press

• Description: Constitutional rights to speak freely and to publish one’s views, free of government censorship.
• Relevant amendment: First
• Significance: Viewed by most scholars and citizens alike as the very foundation of all other constitutional rights, freedom of speech and freedom of the press are American ideals, indispensable to democracy, and the subject of many Supreme Court cases.

When most Americans consider the US Constitution, the Bill of Rights, or the Supreme Court, inevitably they think about freedom of speech and freedom of the press. These twin freedoms, expressly guaranteed in the First Amendment, represent the quintessential liberties on which the United States was founded. Asked to enumerate the rights protected by the Constitution, the vast majority of Americans would readily name free speech and free press. Likewise, asked to articulate what sets the United States apart from all other nations, most Americans would identify these same freedoms.

The Struggle to Protect Freedom of Speech and Press

Respect and pride for freedom of speech and freedom of the press are sincere and heartfelt—until tested in the harsh reality of the tumultuous and diverse culture, in which a wide array of political, religious, social, economic, ideological, racial, ethnic, and geographical constituencies are pitted against one another. In that crucible, pious fidelity to "free speech" and "free press" often gives way to the inevitable qualification.

What inevitably follows is an ever-increasing list of exceptions to freedom of speech and freedom of the press, including not only the small group of exceptions long recognized in the law, such as obscenity, libel, fighting words, false advertising, and criminal solicitation, but also more recent proposed exceptions, such as hate speech, sexual harassment, offensive or sacrilegious art, and sexually explicit yet nonobscene photographs, magazines, videos, and internet images.

When it comes to freedom of the press, the general public and the juries on which they serve sometimes ignore the First Amendment and hold books, films, and television shows financially liable for the acts of disturbed individuals and social miscreants who commit suicide, violent crimes, or general mayhem allegedly "inspired" by what they read or saw in a film or on television.

It is in this contentious atmosphere that the Supreme Court continues to serve its historic role in interpreting the meaning, scope, and limitations of freedom of speech and freedom of the press.

The Meaning of Freedom of Speech and Press

Generally speaking, "freedom of speech" refers to the right of individuals to freely express themselves, without fear of government restrictions. "Freedom of the press" refers more to the right of the publishers of newspapers, magazines, and books, both online and print; the writers and producers of motion pictures and television productions; and the creators and distributors of audio recordings to sell and distribute these materials, free of government censorship. Beyond this general distinction, for constitutional purposes, scholarly analysis and Supreme Court decisions often merge the two concepts under the rubric "freedom of expression," frequently applying principles developed in one area to the other. In free press cases, civil libertarians and attorneys will readily cite precedents that advance constitutional protections in free speech cases, and vice versa.

Although the First Amendment speaks in absolute and unqualified terms ("Congress shall make no law abridging . . . freedom of speech or of the press"), the question has always been what is meant by "freedom of speech" or "freedom of the press." There is a school of thought, to which only two justices, Hugo L. Black and William O. Douglas, adhered, that holds that with respect to speech and the press, the First Amendment is absolute; it means what it says: "Congress shall make no law . . . "—not "some laws" or "almost no laws," but "no law." First Amendment absolutists simply cite the language of the First Amendment and accept no substitutes.

The other school of thought, to which all other justices have subscribed, believes that at the time the First Amendment was ratified, there were certain limited exceptions to freedom of speech and freedom of the press, which were already part of these concepts when they were included in the First Amendment. Thus, for example, in America in 1791, there were libel laws under which people could be punished for what they wrote or said about someone else if it was false and defamatory. Likewise, there were obscenity laws under which publishers could be fined or jailed for selling books or pictures deemed obscene under prevailing standards. Given the existence of these laws at the time the First Amendment was adopted and ratified, the majority view rejects the absolutist approach in favor of an interpretation that affords the broadest sweep of constitutional protection for all subject matter and forms of communications, subject only to limited exceptions.

Consequently, the court has held that the First Amendment protects film, radio, television, cable, recordings, and the internet, regardless of the fact that none of this technology existed when the First Amendment was written. No justice seriously argues that the First Amendment is frozen in the eighteenth century in terms of the forms of communications that existed at that time. Instead, the court takes a functional view of freedom of speech and freedom of the press to encompass any form of communication that provides information, much as books and newspapers did in 1791.

Theories of Freedom of Expression

A variety of theories have been offered for the protection of freedom of expression. One is that truth is best discovered by the free exchange of ideas. In his seminal 1644 work Areopagitica, John Milton confidently asked that if Truth and falsehood grappled, "Who ever knew Truth put to the worse, in a free and open encounter?" In 1919 Justice Oliver Wendell Holmes wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." No metaphor has proved more lasting in the defense of free expression than the "marketplace of ideas."

Another important rationale upholding freedom of expression is based on the principles of human dignity and autonomy. The opportunity to freely express oneself develops inner satisfaction and individual fulfillment. In this view, freedom of expression is worthy of constitutional protection as a step toward the realization of self-identity or what Justice Thurgood Marshall called "a spirit that demands self-expression." This rationale has nothing to do with the search for truth or the advancement of self-government. Instead, it justifies free expression based purely on its benefit to the individual.

At the other end of the spectrum is a rationale based on the common good rather than the good of the individual. Under this view, freedom of expression is indispensable to the progress of self-governance in a democratic society. For citizens to participate fully in their own government, they need to exchange information and express their opinions on pending legislation, candidates, and public policy issues. Only open and unfettered communication, free of the distortions produced by government censorship, ensures the viability of democracy.

The final rationale supporting freedom of expression is closely related to the advancement of self-government but focuses on the value of dissent. Whereas the theory of self-governance looks at the role of free expression among those working within the system, the dissent rationale recognizes the value of those who work outside the system. Sometimes referred to as the "loyal opposition," dissident speech is protected because of the realization that by allowing opponents of the established order to peacefully and freely express themselves, the risk of violent opposition is reduced and hopefully eliminated. Tolerating, or even encouraging, dissent serves as a "safety valve" preventing the political system from getting "overheated."

Majority Rule and Minority Rights

Disputes over freedom of expression generally pit the rule of the majority against the rights of the minority. The question is whether the expression of ideas deemed dangerous to the purpose of ensuring order, morality, loyalty, or some other important interest valued by society at large should be suppressed. Examples of these conflicts abound through the annals of the Supreme Court.

In the early 1970s, American neo-Nazis announced their intent to conduct a march through Skokie, Illinois, a suburb of Chicago, inhabited by a large number of Jewish families, including survivors of the Holocaust. The march seemed purposely designed to deeply offend the Jewish community in Skokie. The city officials took various steps to block the march, but the Nazis, represented by the American Civil Liberties Union (ACLU), went to court, claiming they had a right to express their views, regardless of whether they gave offense. The ACLU was attacked for representing the side of the White supremacists and reportedly lost thirty thousand members. Nevertheless, the ACLU stood by the principle that regardless of whether it disagreed with the Nazis, it would defend their right to speak and march. Eventually, the federal courts agreed that the First Amendment protected the Nazis’ freedom of expression. Ironically, having won the right to march, the neo-Nazis chose not to hold the event.

Another issue is whether the government can deny funding to artists because of the controversial or offensive nature of their work. This issue was squarely presented in 1991 when Congress imposed content restrictions on the grants awarded by the National Endowment for the Arts (NEA), a federal agency established in 1965 to further the progress of the arts. Congressional leaders claimed that artists could create all the controversial art they wanted, they simply had no constitutional right to demand that the government pay for it. Civil libertarians countered that once the government decided to provide funds for artists through the NEA, it could not condition those funds on whether the government agreed or disagreed with the artistic, political, religious, social, or other messages communicated by the art. Eventually, the courts agreed with the artists and struck down the congressional restrictions. The Supreme Court held that the NEA could establish goals encouraging "decency" and respect for diverse American values but could not reject specific works of art based on their controversial content.

Every advance in technology has renewed the battle over freedom of expression. By the 1990s, the conflict was centering on the internet and the revolutionary World Wide Web. In 1996 Congress passed the Communications Decency Act (CDA), making it a crime to communicate "indecent" material to persons under eighteen years old. The ACLU promptly challenged the CDA, first before a federal three-judge panel and later before the Supreme Court.

The court had never ruled on a case involving freedom of expression on the internet. The CDA case squarely presented the question of whether the internet would enjoy the same wide-open, robust constitutional protection accorded to books, newspapers, and magazines or the more restricted, narrow protection granted to television and radio. In other words, the court had to decide whether the print model or the broadcast model would apply to the internet. In 1998 the Supreme Court established the internet model. The court found that the internet was a vast marketplace of ideas entitled to the widest possible constitutional protection. With respect to the CDA, the court held that the adult population could not be reduced to what is acceptable for children. In the absence of effective age verification technology, the court found that the responsibility for protecting children from indecent material on the internet rested with their parents, not the government.

Even before the internet, sexually explicit speech in books, art, films, and home videos had proven to be a perplexing subject for public debate and court review. No other area of First Amendment litigation has prompted such heated and persistent controversy, pitting libertines against moralists. By 1968 the court had adopted a three-part test for defining obscenity: sexually explicit material could not be banned unless it appealed to a prurient, or morbid, interest in sex; exceeded contemporary community standards; and was utterly without redeeming social value.

In 1973, in the case of Miller v. California, the court recast the third prong (in an apparent effort to expand the scope of unprotected obscenity). Under Miller, material could be banned if it lacked "serious literary, artistic, political, or scientific value." Although one leading First Amendment scholar optimistically entitled his 1969 book The End of Obscenity, federal and state governments continued to prosecute material deemed obscene, while at the same time, the adult film business continued to thrive. Given the power and mystery of sex, on one hand, and the tendency of legislators to pass laws they believe are necessary to protect people from themselves on the other, the controversy over obscenity is unlikely to end in the near future.

The Supreme Court has held that, generally, laws that punish defamation do not violate the First Amendment, except when it comes to public officials and public figures. Defamation, which encompasses libel (the written word, as well as radio and television), is defined as a false statement of fact that holds someone up to shame and humiliation. The defamation of a private person implicates little or no First Amendment concerns. However, allowing an individual or a publisher to be punished for attacking an elected official or a celebrity or famous person tends to suppress the sort of public criticism that is at the heart of the First Amendment.

In 1964 the court faced a historic dispute that presented these important issues in the case of New York Times Co. v. Sullivan. At the height of the civil rights movement, a group called the Committee to Defend Martin Luther King took out an ad in the New York Times condemning racism and the actions of the officials in Montgomery, Alabama. One of the officials, L. B. Sullivan, sued for libel and won a $500,000 judgment against the Times. The court overturned the verdict and established powerful protection for freedom of the press.

In a groundbreaking opinion by Justice William J. Brennan, Jr., the court held that the freedom to criticize the government was so important, and the possibility that journalists might make innocent mistakes was so great, that defamation suits against public officials could not go forward unless the official proved that the defamatory statement was made with what the court called "actual malice," that is, knowledge of falsity or reckless disregard for the truth. Nothing less, according to Justice Brennan’s eloquent opinion, would serve the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Freedom of speech encompasses not only what is spoken and written but also actions that are intended to communicate a message, such as burning a draft card to protest a war or burning a US flag to express disagreement with government policy. Symbolic speech, as these expressive activities are called, is entitled to constitutional protection when it does not involve violence or destruction of private property because it conveys, often in a most dramatic fashion, political, social, and other ideas.

In 1989, in Texas v. Johnson, Justice Brennan, speaking for the majority of the court, characterized as "a bedrock principle underlying the First Amendment" that "the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Justice Brennan suggested that there was "no more appropriate response to burning a flag than waving one’s own."

One of the greatest threats to freedom of expression is prior restraint. This term refers to any effort by government to suppress speech even before it is published. The history of England is stained by examples of the Crown preventing books and newspapers from being printed. Indeed, the origin of modern copyright laws was a system of royal licensing, with permission bestowed only on those publishers favored by the rulers. Many scholars argue that the essential purpose of the First Amendment was to prohibit prior restraint. If so, it has fulfilled that goal admirably because the court has never upheld a prior restraint. In the landmark case involving the Pentagon Papers, a series of secret US Defense Department studies on the Vietnam War, the court rejected the request of the administration of Richard M. Nixon to enjoin the New York Times and the Washington Post from publishing the controversial reports. What the king of England could have done with a stroke of a pen, the First Amendment prohibited the US government from doing.

Speech Codes

Although American campuses in the 1960s were a hotbed of freedom and openness, by the 1990s something of an antithesis emerged at many colleges and universities in the form of campus speech codes. These campus regulations prohibited, usually in broad and ambiguous terms, speech that was offensive to women and people of color. However, from the standpoint of freedom of expression, campus speech codes posed a serious threat. With little precedent and even less guidance, neither students nor faculty members could tell what sort of statements could get them in trouble.

Self-censorship out of fear of punishment is often referred to as the "chilling effect" caused by government regulation of speech. Because most people will steer clear of punishment, they will refrain from making statements or publishing material that is constitutionally protected for fear they may run afoul of the government. When this happens, freedom of expression suffers. This is one of the primary reasons that laws or regulations affecting speech must be written with great certainty and cannot be vague or ambiguous.

Campus speech codes were generally far from clear and certain. They usually spoke of speech that was "offensive," "degrading," or "hostile," terms that were highly subjective and lacked any objective definition. Consequently, the courts have consistently struck down campus speech codes when they were challenged on First Amendment grounds. Generally, the courts found that controversial ideas were at risk of being censored in the name of combating racism, sexism, and bigotry.

Justice Oliver Wendell Holmes wrote that the true purpose of the First Amendment was to protect the ideas Americans hate. Justice Louis D. Brandeis believed that the answer to offensive speech was more speech, not less. In other words, in a democratic society, committed to freedom of expression, the remedy to social evils is free and open debate.

Twenty-First Century Developments

In the decades following the terrorist attacks on New York's World Trade Center towers on September 11, 2001, policy changes geared toward creating a more surveillance-focused government with the goal of protecting national security prompted many to become concerned that civil liberties such as freedom of speech and press may be jeopardized. The USA PATRIOT Act, passed by President George W. Bush immediately after the attack, became symbolic of the new surveillance state as it threatened Americans' right to privacy and due process (particularly for immigrants) for the sake of security and counterterrorism efforts. President Barack Obama largely continued these efforts during his eight-year administration.

The 2010s also saw a resurgence of attention to freedom of speech on college campuses in the wake of high-profile student protests against speakers seen as racist or otherwise offensive. In response, libertarians generally raised the old argument that the best way to combat hate speech is by allowing it to be expressed while presenting alternatives. However, protesting students raised issues such as the fact that their schools did not always give them a say in what speakers were invited or provide them with a real open forum to debate and rebut objectionable ideas. Unlike during the student protests of the 1960s and 70s, which generally saw liberal free speech activists pushing against the conservative establishment, in the twenty-first century conservatives were largely successful in positioning themselves as champions of free speech. However, some analysts worried that free expression arguments were co-opted to allow for discrimination, as in cases in which business owners refused to provide services to LGBTQ individuals on religious grounds.

These issues seemed to come to the forefront when business tycoon Donald Trump was controversially elected president in 2016. Based on the racially and sexually charged nature of his campaign and his confrontational comments toward the media, many commentators began to question whether freedom of speech and press would be further threatened under his reign. During Trump's campaign, he lambasted the media and journalists for allegedly running false and biased stories about his campaign (despite having little evidence to support his claims), and mentioned making changes to libel laws if he were to win the presidency to make it easier to sue newspapers publishing unflattering articles on himself. Additionally, due to the divisive nature of the election and its focus on issues such as racism and sexism, concern grew regarding the ambiguity of the line between free speech and hate speech.

As president, Trump continued to make remarks directly criticizing the media and accusing news outlets of propagating so-called "fake news," accusing major media outlets of being "the enemy of the people" and calling journalists "the lowest form of humanity." By instilling public distrust in the media, in combination with his own documented false statements, Trump was seen by many commentators as reshaping the boundaries of free speech in the United States. There was also widespread concern about the implication of Trump's actions and statements on freedom of the press, especially after he publicly brought up the idea, in May 2018, of taking away the press passes of reporters whose work he disliked. In July of that year, he banned a CNN journalist from an event that was open to the press and went on to make another social media–based attack on "fake news" one week later. In response, about 350 newspapers across the country made a joint effort to run editorials in support of freedom of the press. UN experts stated, after this incident, that Trump's verbal attacks on the press could provoke violence against journalists. His administration also worked to provide more legal leeway for religious freedom, at the expense of potentially allowing discrimination.

Debates around freedom of expression continued into the 2020s, often centered around major issues affecting the country and the world. Americans argued over the rights of students on college campuses and elsewhere as protests broke out against the Hamas-Israel war in late 2023 and 2024, causing some school officials to place limits on such methods of expression. Further, experts warned that attacks on free speech were on the rise across the country during this period, often evident in attempts at censorship. A wave of legislation targeting performances by drag artists was seen during the 2020s, for example. Similarly, legislators introduced a record number of bills aimed at placing regulations on materials in public and school libraries. Such legislation was generally introduced by conservative Republican lawmakers and often targeted books with themes concerning racism and LGBTQ issues. Conservative politicians, especially in southern states, likewise passed legislation aimed at limiting the teaching of those same topics in public classrooms. On the other side of the aisle, some Democratic politicians were accused of infringing on the free speech rights of Americans as well, as was the case with a bias hotline bill that aimed to help officials in Washington state collect information about and support victims of hate crimes. Critics warned the bill, which ultimately failed to pass into law, would go against free speech protections, arguing that even though hate speech is damaging, it is still usually protected by the First Amendment.

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