Free Speech

Definition: Speaking freely is one of the fundamental freedoms guaranteed in the U.S. Bill of Rights

Significance: Freedom of speech includes public speech, symbolic speech, and expressive conduct

Controversies regarding freedom of expression, as reflected in seditious speech laws, trace their origins to thirteenth century England. The reign of Edward I began in 1272 with judicial reforms and a series of acts dealing with the position of the church, landowners, regulation of trade, and enforcement of the public order. Those acts included England’s first seditious speech law, punishing anyone who spoke in a disparaging manner about the king and his advisors. By the time of the Peasants’ Revolt of 1381, seditious speech law had been liberalized. Outlawed was false news about “great men in the realm.” If the originator of the slanderous report was not identified, the disseminators were to be punished in his stead. By the 1530s seditious speech involved impugning royal advisors or the ruling class, misinterpreting government policies, or criticizing the king’s sexual practices.

During the reigns of Edward VI and Mary I, officials could no longer prosecute spoken treason, but a 1555 law set the penalty for speaking about the king or queen in a slanderous or seditious manner at the loss of both ears or a fine and short confinement. Repeat offenders received life imprisonment. A 1558 law under Elizabeth I made it a misdemeanor to speak or write with malicious intent false or slanderous words about the queen. By 1580 such written words were felonies. The felony statutes against seditious speech expired with the death of Elizabeth.

James I, Elizabeth’s successor, established the Star Chamber and the basic structure of English seditious speech law in 1606. After its demise in 1641, the common law courts handled seditious speech cases, prosecuting with frequency and severity throughout the century, which was marked by religious controversy.

Colonial America

The colonists brought to the New World their understanding of seditious speech: insulting or impugning government officials, criticizing the government generally, and spreading false news. Military regulations treated seditious words as mutiny and authorized harsh punishment, but statutes designed to control nonmilitary seditious speech were less severe, often establishing payment of fines as punishment.

Regulated Speech

Seditious speech regulations have tended to change in response to changing circumstances, such as criticism of new leaders. Times of danger also brought increased levels of prosecution as well as stricter laws. This trend was also visible in twenty-first century free speech law. If speech advocates imminent unlawful action, which presents a clear and present danger, the speech loses its constitutional protection. In other words, not all speech is free. One may be prosecuted for what one says, if one’s speech meets specific criteria, including that of clear and present danger. The Supreme Court has viewed freedom of speech as a personal right of the individual, but whether speech is permitted depends on whether it threatens public safety. In the famous words of Justice Oliver Wendell Holmes in Schenck v. United States (1919): “The most stringent protection of free speech would not protect a man in falsely shouting ’fire’ in a theater and causing a panic . . . The question in every case is whether the words 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.” Therefore, throughout twentieth century and into the twenty-first century American case law, the Supreme Court has indicated that even advocacy of use of violence is constitutionally protected unless it immediately incites lawless action. If the risk of violence is high enough, however, speech may be suppressed.

Protected Speech

The First Amendment forbids Congress to pass any laws abridging the freedom of speech. The Supreme Court has added limitations, attempting to distinguish between protected and unprotected speech. Although Americans’ right to free speech is vigorously protected, speakers are not given free rein to speak whenever, wherever, and however they choose. The right to free speech is ambiguous and its contours unclear. Certain categories of expression can be regulated; others are not protected at all.

“Pure” speech, which does not create any substantial danger to the public, is protected as part of the democratic process. Pure speech involves oral or written communication of a philosophy, ideology, or body of knowledge that advances public understanding. Other activities containing elements of both expression and conduct (demonstrating, marching with signs or placards, and picketing, for example), are sometimes termed “speech plus,” “symbolic speech,” or “expressive conduct.” When speech and nonspeech elements are combined, the court will allow the regulation of the nonspeech element if a sufficiently important government interest exists. In an effort to resolve controversial issues, the Supreme Court has formulated a balancing approach in which a number of factors are assessed.

One recurring theme is that American reaction to efforts to express political, social, economic, religious, and sexual views is based on how acceptable the idea espoused is to the prevailing definition of what is acceptable in society. Fear of new ideas and challenges to the existing social order depends on the ebb and flow of social mores. What is acceptable depends on the operative definition at the time.

The judiciary has prohibited certain kinds of expression, oral or written, because of the effect they may have on society. Denial of free speech on the basis of content remains a matter of heated debate. Content-based regulation of speech may amount to discrimination or censorship depending on whether the government agrees with the speaker’s point of view. Even private speech or personal expression can be limited so long as the regulation is reasonable and subject to due process of law. Laws must not be so vague that people must guess at their meaning and are in fear of exercising protected freedoms. Laws must give adequate notice of the type of speech or conduct that is permitted or disallowed. Additionally, laws may not be so overly broad as to prohibit protected as well as unprotected activities. Legislation must be constructed with narrow specificity to avoid this problem. The protected freedoms need “breathing space,” according to the Supreme Court, and government regulation in the area is closely examined.

The First Amendment protects the right to engage in forms of expression intended to test the limits of tolerance, invite dispute, and challenge majority beliefs. Even those who would destroy free society if they were to prevail may express their views so long as they do not incite an imminent breach of the peace. When government regulates the content of speech, there is a risk that the restriction stems from an effort to impose a viewpoint, to stop people from being offended by certain topics or perspectives, or to prevent people from being persuaded by what others have to say. Regulating speech closes off channels of public discussion and debate, thus preventing a free exchange of ideas and totally precluding the presentation of other views. Such regulation is held to be antithetical to a democratic society.

Other limitations on speech include limitations of time, place, and manner. Often compelling reasons exist to justify imposing these limitations: for example, disturbing the peace through use of loudspeakers or speechmaking, solicitations, or demonstrating in front of a courthouse concerning pending cases. Assuming neutral content (that is, that speech on one side of an issue is as disallowed as speech on another side), these regulations are justifiable because they do not regulate the content of speech, but only its external elements. The speech may continue at another time or place or in another manner. Even these regulations are subject to strict or exacting scrutiny by the court, however, to assure that they limit dissemination of information or opinion no more than necessary to protect important government interests.

Unprotected Speech

Fighting words, which by their utterance inflict injury or tend to incite an immediate breach of the peace, are unprotected because they do not constitute an essential part of any exposition of ideas and are of insignificant social value. Obscenity is also unprotected speech because it is feared that obscene material may debase society’s ethics, morals, and culture. Those who want society to take steps to protect itself from immorality, violence, and sexually explicit expression have favored censorship and the suppression of these materials. Censorship and suppression are contrary to the philosophy of free speech, however, some legal challenges have been mounted against suppression of inflammatory and obscene expression. Anticensorship victories in such cases have led to new definitions, for example, of what is obscene. Child pornography is also unprotected speech. In United States v. Stevens (2010), the court was wary of designating other types of unprotected speech but did not eliminate the possibility of doing so in the future.

The U.S. Supreme Court has especially disfavored prior restraint: licensing schemes that require permission before dissemination of speech, motion picture, newspaper, or other communication, or restrictions before publication. Prior restraint may be justified only when publication threatens national security, incites overthrow of the government, is obscene, or substantially interferes with others’ private rights. Libel and slander are also unprotected forms of expression because the injury that such forms of expression cause others outweighs the right to free speech. Despite its inflammatory nature, hate speech on its own is not automatically considered unprotected speech, but the use of hate speech can often be considered when prosecuting a hate crime. Multiple Supreme Court cases, including Wisconsin v. Mitchell (1993), have declined to categorize hate speech as unprotected while upholding that using hate speech as evidence of a hate crime does not violate a defendant's First Amendment rights.

Symbolic Speech

Use of actions as a substitute for words is generally protected. The type of offensive speech termed “hate speech” has also been protected as being “content neutral,” and includes racial slurs, hateful religious propaganda, and cross burning. Flag burning was also upheld as a controversial but valid expression of political views deserving protection in a society promoting the free exchange of ideas. Case law has demonstrated that censorship of symbolic speech solely because it is offensive and runs counter to personal predilections cannot be tolerated.

Free Speech and Social Media

In the twenty-first century, much political discourse takes place on social media, which presents a thorny issue with regard to free speech. The constitutional guarantee of free speech protects citizens only from having their speech limited by the government; private companies can still ban or censor speech as they see fit. Thus, while a unanimous Supreme Court decision in Reno v. ACLU (1996) officially extended First Amendment protections to written, spoken, and visual content posted on the internet, this has no bearing on the ability of social media platforms to place limitations on what people may post on their sites. With a significant portion of public discourse shaped in this way by private companies, some have raised concerns about the extent to which this privileges some viewpoints over others. A 2017 ProPublica report found that Facebook's policy against hate speech only applied to speech directed at an entire race, gender, religion, or similar protected category, not to subsets of those categories, and thus hate speech against White men was forbidden but invective directed at Black children or female drivers was not. The policy was also inconsistently applied; the company decided not to enforce it against certain posts by then presidential candidate Donald Trump that, under the company's usual rules, would have constituted hate speech against Muslisms. Facebook also at one time banned posts praising the use of "violence to resist occupation of an internationally recognized state," leading to the deletion of posts by journalists covering disputed territories such as Crimea and Kashmir.

The debate over free speech and social media continued to evolve throughout the early 2020s. Starting in 2020 with the global spread of the COVID-19 pandemic, YouTube, Facebook, and a number of other social media companies censored or flagged content viewed as spreading misinformation about the pandemic or COVID-19 vaccines. Some commentators felt this represented a form of corporate censorship and stifled debate on different aspects of the pandemic, while others felt such steps were necessary for public health reasons.

Another flashpoint in this debate occurred after the January 6, 2021 attack on the US Capitol in Washington, D.C., during which supporters of President Trump attempted to overturn Trump's loss to Joe Biden in the 2020 presidential election. Due to Trump's inflammatory statements before, during, and after the Capitol attack, a number of social media platforms, including Twitter, decided to ban Trump's accounts. This kicked off a heated debate in the US and around the world about the power social media companies and other tech corporations were able to exercise over free speech due to their largely unregulated control over these platforms. While the ban on Trump's Twitter account was overturned in November 2022 by billionaire tech entrepreneur Elon Musk, who had purchased Twitter earlier that year, by that point Trump and many other conservative social media users had begun branching out to other platforms, including Truth Social, which were intended to cater to conservative users and claimed to allow wider exercise of free speech.

Bibliography

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