Freedom of Expression: ACLU Briefing Paper Number 10

"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

The inhabitants of the North American colonies did not have a legal right to express opposition to the British government that ruled them. Nonetheless, throughout the late 1700s, these early Americans did voice their discontent with the Crown. For example, they strongly denounced the British parliament's enactment of a series of taxes to pay off a large national debt that England had incurred in its Seven Years War with France. In newspaper articles, pamphlets and through boycotts, the colonists raised what would become their battle cry: "No taxation without representation!" And in 1773, the people of the Massachusetts Bay Colony demonstrated their outrage at the tax on tea in a dramatic act of civil disobedience: the Boston Tea Party.

The early Americans also frequently criticized the much-despised local representatives of the Crown. But they protested at their peril, for the English common law doctrine of "seditious libel" had been incorporated into the law of the American colonies. That doctrine permitted prosecution for "false, scandalous and malicious writing" that had "the intent to defame or to bring into contempt or disrepute" a private party or the government. Moreover, the law did not even accommodate the truth as a defense: in 15th century England, where absolute obedience to the Crown was considered essential to public safety, to call the king a fool or predict his demise was a crime punishable by death.

The colonies' most celebrated seditious libel prosecution was that of John Peter Zenger in 1735. Zenger, publisher of the 'New York Weekly Journal', had printed a series of scathing criticisms of New York's colonial governor. Although the law was against Zenger, a jury found him not guilty -- in effect, nullifying the law and expressing both the jurors' contempt for British rule and their support for a free and unfettered press. After Zenger's acquittal, the British authorities abandoned seditious libel prosecutions in the colonies, having concluded that such prosecutions were no longer an effective tool of repression.

The stage was set for the birth of the First Amendment, which formally recognized the natural and inalienable right of Americans to think and speak freely: "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."

Following are the ACLU's answers to questions we have been asked by members of the public about the history of the First Amendment and the freedoms it guarantees.

What Were the Philosophical Underpinnings of the First Amendment's Guarantees?

James Madison, Thomas Jefferson and the other framers of the Bill of Rights were products of the Age of Enlightenment. They eschewed the superstitions and intolerance of earlier times, believing instead in the power of reason, the search for truth, and the perfectability of human society. Freedom of inquiry and liberty of expression were clearly essential to the process of debate and discovery that they viewed as indispensable to the achievement of human progress.

Questioning of authority was also a central theme of the Enlightenment era. The philosophers of the day well understood the tendency of government to perpetuate itself by enacting repressive measures to silence those opposed to its conduct. According to one libertarian thinker of the period, a citizen had the right to "say everything which his passions suggest; he may employ all his time, and all his do so, in speaking against the government matters that are false, scandalous and malicious," and yet he should be "safe within the sanctuary of the press." Speech was regarded as beyond the reach of criminal sanctions; only "overt acts" could be punished.

Given the primacy that the framers assigned to the values the First Amendment embodies, it is fitting that freedom of expression should be the first freedom cited in the Bill of Rights.

Why Does Freedom of Expression Play Such a Critical Role in Our Constitutional System?

There are four primary reasons why freedom of expression, which encompasses speech, the press, assembly and petition, is essential to a free society:

First, freedom of expression is the foundation of self-fulfillment. Self- expression enables an individual to realize his or her full potential as a human being. The right of individuals to express their thoughts, desires, and aspirations, and to communicate freely with others, affirms the dignity and worth of each and every member of society. Thus, freedom of expression is an end in itself and should not be subordinated to any other goals of society.

Second, freedom of expression is vital to the attainment and advancement of knowledge. The eminent 19th century civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. But the right to express oneself is not conditioned on the content of one's views, which may be true or false, "good" or "bad," socially useful or harmful. All points of view should be represented in the "marketplace of ideas" so that society can benefit from debate about their worth.

Third, freedom of expression is necessary to our system of self-government. If the American people are to be truly sovereign, the masters of their fate and of their elected government, they must be well-informed. They must have access to all information, ideas and points of view. The precondition for a free society is an informed and enlightened citizenry. Tyrannies thrive on mass ignorance.

Fourth, freedom of expression provides a "check" against possible government corruption and excess, which seem to be permanent features of the human condition.

Restrictions on freedom of speech always authorize the government to decide how, and against whom, the restrictions should apply. The more authority the government has, the more it will use that authority to suppress unpopular minorities, criticism and dissent. Because freedom of expression is so basic to a free society, the ACLU believes that it should 'never' be abridged by the government.

What Was the Early History of the First Amendment and Freedom of Expression?

The First Amendment's early years were not entirely auspicious. Although the early Americans enjoyed great freedom compared to citizens of other nations, even the Constitution's framers, once in power, could not resist the strong temptation to circumvent the First Amendment's clear mandate. In 1798, seven years after the First Amendment's adoption, Congress, over the objections of James Madison and Thomas Jefferson, passed the Alien and Sedition Act. Ironically, this Act incorporated much of the English law of seditious libel (indeed, seditious libel remained a part of our law for the next 171 years), and was used by the dominant Federalist Party to prosecute a number of prominent Republican newspaper editors. But none of those cases reached the Supreme Court.

Throughout the 19th century and much of the 20th, federal and state sedition, criminal anarchy and criminal conspiracy laws were used repeatedly to suppress expression by slavery abolitionists, religious minorities, early feminists, labor organizers, pacifists and left-wing political radicals. For example, prior to the Civil War every Southern state passed laws limiting speech in an attempt to stifle criticism of slavery. In Virginia, anyone who "by speaking or writing maintains that owners have no right of property in slaves" was subject to a one-year prison sentence.

In 1929, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted employers' requests for injunctions that prohibited strikes and other labor protest. Protest against U.S. entry into World War I was widely suppressed, and dissenters were jailed for their pronouncements and writings. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as radical by the government. It was in response to the excesses of this period that the ACLU was born in 1920.

How Did the Courts Respond to First Amendment Violations?

The lower courts were almost universally hostile to the First Amendment rights of political minorities. However, free speech issues did not reach the Supreme Court until 1919. That year, the Court dealt with free speech for the first time in the case of 'Schenck v. U.S.' Charles T. Schenck, a member of the Socialist Party, had been convicted of violating the Espionage Act for mailing anti-war leaflets to draft-age men during World War I. The Supreme Court unanimously upheld his conviction. The prevailing legal view at the time was that any speech that had a "tendency" to cause a violation of law could be punished.

The 'Schenck' case was quickly followed by others that ended in decisions equally contemptuous of First Amendment freedoms. Among them was the case of Jacob Adams, convicted under the Sedition Act of 1918 for distributing leaflets that criticized the American military. However, even though the Supreme Court upheld Abrams' conviction, the decision in his case was a watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, stating that speech could not be punished unless it presented "a clear and present danger" of imminent harm. The Holmes-Brandeis dissent marked the beginning of modern First Amendment theory.

The Supreme Court declared the inviolability of First Amendment rights for the first time in 1925 in Gitlow v. New York, a case that challenged the conviction of a communist revolutionary under New York's Criminal Anarchy law. Although the Court affirmed the conviction, it announced that freedom of speech and press were protected by the First Amendment from federal encroachment, and "are among the fundamental personal rights and 'liberties' protected by the states." This holding paved the way for Yetta Stromberg to prevail, six years later, in an appeal of her conviction under a California law that made it a crime to publicly salute a red flag -- the symbol of revolution.

Thereafter, the right to freedom of expression became more secure -- that is, up until the advent of McCarthyism in the 1950s. During this second "red scare," the Supreme Court weakened the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government, no matter how remote the danger of such an occurrence might be. Under this new test, many political activists were prosecuted and jailed for advocating communist revolution. Laws that required people to sign loyalty oaths, swearing that they were not members of any subversive organizations, were also upheld and not reversed until 1967.

Finally, in the 1969 case of Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member under a criminal syndicalism law and established a new standard: Speech may not be suppressed or punished unless it is intended to produce "imminent lawless action" and it is "likely to produce such action." Otherwise, the First Amendment protects even speech that advocates violence. The 'Brandenberg' test is the law today.

What Forms of Expression Are Protected by the First Amendment?

In addition to protecting "pure speech," expressed in demonstrations, rallies, picketing, leaflets, etc., the First Amendment also protects "symbolic speech" -- that is, nonverbal expression whose main purpose is to communicate ideas. In the 1969 case of 'Tinker v. Des Moines Independent Community School District', the Supreme Court recognized the right of high school students to protest the Vietnam War by wearing black armbands. In 1989 and again in 1990, the Court upheld the right of an individual to burn the American flag in public as an expression of disagreement with government policies. Other examples of protected expression include images in works of art, slogans or statements on T-shirts, "fashion statements" that incorporate symbols and/or written slogans or declarations, music lyrics and theatrical performances.

As well as protecting a free "marketplace of ideas" within our nation, the First Amendment also protects free trade in ideas across U.S. borders (although the law in this area is less well-defined). That protection encompasses both the right of Americans to travel and disseminate their ideas abroad, and their right to receive information from other countries -- in other words, their right to know. As Justice William J. Brennan, Jr. once observed, "The right to receive publications is a fundamental right...It would be a barren marketplace of ideas that had only sellers and no buyers."

Can Speech Be Curtailed If It Is Thought to Jeopardize National Security?

At several points in our history, particularly during wartime, the government has sought to limit speech in the interest of "national security," a vague term that, if construed too broadly, can be used to justify the suppression of information vital to public discourse.

The ongoing controversy that surrounds competing claims of national security and freedom of expression came to a head in 1971 in the 'Pentagon Papers' case. 'The New York Times' obtained a copy of, and published excerpts from, the so-called Pentagon Papers, a voluminous secret history and analysis of the nation's military involvement in Vietnam. When the 'Times' ignored the government's demand that it halt such publication in the interest of national security, the newspaper was enjoined from continuing to publish portions of the document. Two weeks later, on expedited appeal, the Supreme Court ruled that the government could not, through "prior restraint," block publication of any material unless it could prove that the material would "surely" result in "direct, immediate, and irreparable" harm to the nation. Since the government had not met its burden of proof, the 'Times' was free to continue the series.

While the Court's decision represented a victory for freedom of speech and the press, it did strike an ominous note by tacitly accepting a national security exception to the First Amendment's ban on prior restraint. And in subsequent years, the Court upheld the government's national security claims in several cases involving former CIA agents who had written their memoirs.

The ACLU believes that national security, like all government interests, must be served only in ways that are consistent with our tradition of respect for individual rights.

Why Should Racists and Other Hatemongers, or Those Espousing Anti-Democratic Political Doctrines, Have Free Speech Rights?

The Constitution does not authorize the government to assess the content of speech and the curtail the speech it judges to be irresponsible or wrong. If the government had such power, we would all be in danger. All people within the borders of the United States have the right to express themselves freely, even, in the words of Justice Felix Frankfurter, if they "speak foolishly and without moderation." In a society of laws, the laws must apply to everyone.

The ACLU's defense of the free speech rights of groups such as the Ku Klux Klan and the American Nazi Party has often stirred controversy and drawn criticism. But popular and palatable ideas do not need protection from government suppression; only unpopular and offensive doctrines do. As one federal judge has put it, our toleration of hateful speech is "the best protection we have against any Nazi-type regime in this country."

The Supreme Court has consistently rejected the notion that speech can be punished because it offends some people's sensibilities, and has generally invalidated statutes and practices that penalize expression based on content. The Court has also taken a dim view of breach-of-the-peace statutes when applied to expressive conduct. In the 1949 case of Terminiello v. Chicago, the Court struck down the disorderly conduct conviction of an anti-Semitic priest (suspended by the church for his views), who had provoked a violent confrontation when he denounced Jewish people at a political rally. The Court's decision, written by Justice William O. Douglas, stated: "The function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it invites a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Can Free Speech Be Limited in Any Way?

The government may place "time, place and manner" restrictions on speech as long as they are "reasonable." For example, requiring people to obtain a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, constitutes a justifiable regulation.

But restrictions that are overly burdensome violate the First Amendment. For example, during the 1960s, officials in Southern cities frequently required civil rights activists to apply for permits in order to hold demonstrations, and then granted or denied the permits arbitrarily. Thus, in the 1969 case of Shuttlesworth v. Birmingham, the Supreme Court struck down such licensing schemes as unconstitutional. Similarly, in 1977, the Court ruled that the local government's requirement that members of the American Nazi Party post $350,000 in insurance in order to hold a march and rally in Skokie, Illinois was an unconstitutional infringement on the group's First Amendment rights. Insurance requirements were also regularly used in the South to repress civil rights demonstrations.

Are Any Forms of Expression Not Protected by the First Amendment?

The Supreme Court has established several limited exceptions to the First Amendment's protections:

  • Fighting Words: In the 1942 case of 'Chaplinsky v. New Hampshire', the Supreme Court held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the First Amendment and can be punished. The Court based its decision on the concept that such utterances are of "slight social value as a step to truth."
  • Libel: In the 1964 case of New York Times Co. v. Sullivan, the Supreme Court held, in a groundbreaking decision, that defamatory falsehoods published about public officials are not protected by the First Amendment and can be punished if the offended official can prove that his/her accuser published the falsehoods with "actual malice" -- that is, with the "knowledge that the statement was false or with reckless disregard of whether it was false or not." While the Court's decision addressed a particular type of common law libel, other kinds of "libelous statements" are also punishable.
  • Commercial Speech: In the 1976 case of Virginia Pharmacy Board v. Virginia Citizens Consumer Council, the Supreme Court struck down a state ban on prescription drug advertising on First Amendment grounds. However, commercial speech -- which includes advertising, financial and credit reports, and the like -- still has far less First Amendment protection than other speech. Generally, it can be banned if it is, on the whole, misleading or takes undue advantage of its audience.
  • Obscenity: "Obscene" material has historically been excluded from First Amendment protection, which has led to the official banning of such classics as James Joyce's Ulysses and D.H. Lawrence's Lady Chatterly's Lover, as well as the criminal prosecution of countless publishers, book distributors, storekeepers, film distributors and artists. But in the 1973 case of 'Miller v. California', the Court re-examined the issue and established a standard for determining whether material is obscene. The Court ruled that material is legally obscene if: (1) the average person, applying contemporary community standards, would conclude that the work, taken as a whole, appeals to prurient interests; (2) it depicts sexually explicit conduct, specifically defined by law, in a patently offensive manner; and (3) it lacks serious literary, artistic, political or scientific value. The 'Miller' test is still the law today.

Unfortunately, the Supreme Court's long-standing unwillingness to strike down all obscenity laws as unconstitutional infringements on freedom of expression has allowed censorship to flourish at various times in our history because of public officials' tendency to apply the Court's narrow limits in overbroad ways. This remains a problem with all of the limited exceptions to the First Amendment.

Is Freedom of Expression in Danger Today?

The right to freedom of expression is being severely tested today, just as it has been throughout the 200-year history of the Bill of Rights. Governments by nature are always seeking to expand their powers beyond proscribed boundaries, the government of the United States being no exception. And since the right to free expression is not absolute, it must be constantly protected against official depredations.

Today, artistic expression is under attack, as some groups of citizens seek to impose their morality on the rest of society. Book censorship in the public schools, mandatory record labeling, as well as obscenity prosecutions of rap singers, record distributors and museum directors, are all manifestations of suppression efforts. Artists, performers and authors now occupy the same vulnerable position that political radicals did in the 1950s.

If the past two centuries of struggle to preserve freedom of expression have taught us anything, it is that the first target of government suppression is never the last. Whenever government gains the power to decide who can speak and what they can say, the First Amendment rights of all of us are in danger of being violated. But when all people are allowed to express their views and ideas, the principles of democracy and liberty are enhanced.

The American Civil Liberties Union

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