Freedom of Speech

The freedom of speech is guaranteed by the First Amendment to the U.S. Constitution. Never regarded as an absolute right, the limits within which free speech could be confined as well as the definition of speech have received the attention of the Supreme Court since the earliest years of the republic.

One consideration has been the right of citizens to dissent from the conduct of a duly declared war. During World War I, the United States passed an amendment to the Espionage Act of 1917, known as the Sedition Act of 1918, and under its terms, Jacob Abrams and other defendants were convicted of circulating Communist literature critical of American participation in the war. Their convictions were upheld by the Supreme Court in Abrams et al. v. United States in a ruling in November 1919, but Justice Oliver Wendell Holmes wrote a dissent which stands as a landmark in the defense of free speech:

But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.

In another case, Holmes delivered what has become one of the most famous expressions of the limits of free speech. Writing in Schenck v. United States, also in 1919, he stated, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

The book Ulysses by James Joyce was published in Paris in 1922 but banned in the United States. Joyce`s American publishers sued to have the ban overturned, which they achieved in the 1933 ruling in the District Court of New York.

At the time of the First World War, a young Harvard law professor name Zechariah Chafee grew concerned about the impact that war fever was having on the freedom of speech. After the war, he drew together a number of his articles into a book entitled, Freedom of Speech, which appeared in 1921. Freedom of Speech influenced a generation of legal thinking about the power of the First Amendment.

Seeing the situation before World War II trending toward that of the previous great war, Chafee revised and expanded his work into Free Speech in the United States in 1942. It was a ringing endorsement of the value of free speech in a society that should value its leadership on moral issues as much as its military prowess:

My contention is that the pertinacious orators and writers who get hauled up are merely extremist spokesmen for a mass of more thoughtful and more retiring men and women, who share in varying degrees the same critical attitude toward prevailing politics and institutions. When you put the hotheads in jail, these cooler people do not get arrested -- they just keep quiet. And so we lose things they could tell us, which would be very advantageous for the future course of the nation. Once the prosecutions begin, then the hush-hush begins too. Discussion becomes one-sided and artificial. Questions that need to be threshed out do not get threshed out.

Another topic has been the dividing line between commercial and political speech. The Constitution does not address the difference, but the Supreme Court has tended to view commercial speech as being of a different sort, so that regulations regarding advertising and the like could be constitutionally imposed.

It is generally agreed that obscenity is not protected speech, but no clear definition has been produced. Justice Potter Stewart famously declared in Jacobellis v. Ohio that while the Supreme court was perhaps being asked to define what may be indefinable, "I know it when I see it." The question of artistic value in pornography has led to some forms being given First Amendment protection.

Freedom of speech has been extended to forms of expression not commonly regarded as speech. Works of art expressing viewpoints have been given constitutional protection. When the act of burning the United States flag became a symbol of protest during the Vietnam War, Congress attempted to make desecration of the flag illegal, but the Supreme Court declared it to be protected free speech.

In recent years, spending on political campaigns has risen sharply and legislatures at the state and national level have attempted to place limits on campaign advertising. The Supreme Court has been ruling generally against limitations. Its 5-to-4 2010 decision in Citizens United v. Federal Election Commission overruled a previous 1990 decision in Austin v. Michigan Chamber of Commerce that had upheld limits.

---- Selected Quotes ----

Quotes regarding Freedom of Speech.

By Oliver Wendell Holmes
With effervescing opinions, as with the not yet forgotten champagne, the quickest way to let them get flat is to let them get exposed to the air.
Letter, January 1920