A Brief History of the First Amendment - Freedom of Speech
By David Demers
In 1789, James Madison had a problem. (1) He wanted a strong federal government. But some of the new U.S. states were leery of centralized power. After all, they had just finished fighting Great Britain partly over the lack of local control. (2)
But to ensure passage of the U.S. Constitution, Madison agreed to head a committee that wrote the 10 Bill of Rights. Actually, there were 12 amendments, but the first two failed to get approval. By default, the third one became the First Amendment. It prevented Congress and the federal government from passing laws limiting people's rights to worship, speech, freedom of the press and assembly to grieve against the government.
The history of freedom of speech and the press is much older than the U.S. Constitution, as Chapter 2 demonstrates. But most of the legal regulation of speech and the press in the United States today can be traced to passage of the First Amendment in 1791.
In the early years, the regulatory concern focused mainly around libel and censorship. The Alien and Sedition Acts of 1798, for example, jailed editors who wrote false statements about the Federalists. But since then, the scope of regulation has become much broader, encompassing not only speech and the press but also privacy, obscenity, access to government records, access to media, copyright, and regulation of electronic media.
What Is Freedom of Speech?
Say what you want, but if your speech hurts someone or has the potential to hurt someone, then the government can punish you.
That statement crudely sums up the law on freedom of speech. People in the United States have great latitude to criticize the government, politicians or other people, even during times of crisis. People can even talk about overthrowing the government. But when that speech becomes action or has a strong potential to become action (e.g., taking up arms), the government may put a stop to it. Speech also can be banned when it poses a danger to people or the state, or when it leads to or is likely to lead to violence.
The history of these principles is largely embedded in what has been called the clear and present danger doctrine, the fighting words doctrine, the hostile audience problem and symbolic speech.
Clear and Present Danger
Can Americans publish and distribute materials that are highly critical of the U.S. government, even during wartime? Yes, as long as the materials do not pose a clear and present danger to the government. This principle was introduced more than 80 years ago, but oddly speech did not get much protection until 40 years ago.
The Intolerant Era
During World War I, Charles Schenck, who was the general secretary of the Socialist party, and his associate were convicted on a charge of conspiracy to violate the Espionage Act of June 15, 1917. They had published and distributed to draftees a flier which urged them to refuse to serve.
The case (Schenck v. United States, 1919) reached the U.S. Supreme Court in 1919. (3) The high court noted that in many places and at many times the defendant would have been within his constitutional rights to call for such action. But the court upheld the conviction, saying:
the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater 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. [emphasis added]
In the same year, the court also ruled against five other socialists (Abrams v. United States, 1919) who were accused of publishing and disseminating pamphlets attacking the American expeditionary force sent to Russia by President Woodrow Wilson to defeat the Bolsheviks. (4) The pamphlets also called for a general strike of munitions workers.
Again, the majority of the Supreme Court ruled that the publishing and distribution of the pamphlets during the war were not protected expression. However, in terms of impact on subsequent law, it was not the majority opinion but Justice Oliver Wendell Holmes' opinion that had the most impact. Holmes basically argued that the pamphlets distributed by Abrams did not attack the form of government of the United States. "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." [emphasis added]
In 1925, the high court once again ruled against a socialist who had been indicted for publishing a radical "manifesto" that urged people to go on strike (Gitlow v. People of the State of New York, 1925). (5) But the court, for the first time, applied the First Amendment to the states. In other words, state governments were now prohibited from passing laws abridging freedom of speech and the press. That was not true before Gitlow.
However, the high court was still reluctant to protect socialists' expression. In two more cases after Gitlow it ruled against them. (6) In one of those cases (Dennis v. United States, 1951), the court ruled that teaching people to overthrow the U.S. government, even if there was no action to do that, was not protected speech.
Court Reverses Itself
In 1957, the high court began to reverse itself. It ruled that people can talk all they want about overthrowing the government (Yates v. United States, 1957). (7) They can even express hope that the revolution will succeed. They just could not actually attempt to carry it out or commit illegal acts. In other words, they could not take action.
This ruling effectively brought an end to sedition trials. But an even more important decision was handed down in 1969. The case involved a Ku Klux Klan leader who was convicted of violating an Ohio law that prohibited unlawful methods of terrorism and crime as a means of accomplishing industrial and political reform (Brandenburg v. Ohio, 1969). (8) The high court voided his conviction on the grounds that the Ohio law failed to distinguish between the advocacy of ideas and the incitement to unlawful conduct. "The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action or is likely to incite or produce such actions."
In short, only speech that produces or is likely to produce violent actions or illegal behavior can be outlawed.
Fighting Words Doctrine
If someone walks up to you and says, "I hate you," and then turns to some friends and says, "Please beat that person (you) up," is that speech protected by the First Amendment? Do people have a right to tell others that they hate them? Is hate speech legal?
These questions revolve around what is called fighting words, or words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." (9) Once again, the answer to those questions depends on whether violent or illegal actions are likely to take place. Hate speech is protected by the First Amendment. But calling on others to "beat someone up" is not.
These principles were established in two major decisions. The first was in 1971, when the Supreme Court overturned the conviction of an anti-Vietnam War protestor who wore a jacket that said "Fuck the Draft" on the back (Cohen v. California, 1971). (10) The message did not constitute fighting words, the court said, because it was not a direct personal insult and presented no danger of violent physical confrontation.
Similarly, hate speech that is targeted against individuals or ethnic groups also is protected as long as it does not involve actions that physically harm people.
This principle was established in a case that involved a 17-year-old boy who burned a cross in the fenced yard of an African American family. The City of St. Paul, Minn., convicted the man for violating an ordinance that made it a crime for anyone to place a symbol, object, or graffiti on property if it was likely to arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."
But in 1992 the U.S. Supreme Court overturned the ordinance. The court said the man could not be prosecuted for hating people. But he could be prosecuted if his actions violated other laws, such as trespassing or damage to property. The man was also indicted for conspiring to interfere with the family's right to housing.
Hostile Audience Problem
If an audience menaces a speaker to the point where the physical safety of the speaker is at risk or a general melee is possible, can the police arrest the speaker even if she or he is not intentionally inciting to violence? If a speaker has generated threats from passers-by, can he or she be denied a permit to speak?
These questions invoke the hostile audience problem, and the answer once again appears to be whether the threat of violence is imminent. In 1951, the Supreme Court ruled that police were within their authority to arrest a man because his audience was getting restless. (11) However, the high court ruled in the same year that New York City could not deny a speaking permit to a man who had aroused complaints in the past. (12) The latter was considered prior restraint.
Can a person burn a U.S. flag to make a political statement? Yes, the U.S. Supreme Court has given broad protection to symbolic speech.
The pivotal case is Texas v. Johnson (1989), in which a man burned an American flag in front of Dallas City Hall during the 1984 Republication National Convention to protest policies of the Reagan administration. (13) Protestors chanted, "America, the red, white and blue, we spit on you," while the flag burned. No one was injured or threatened. The Court said the United States has a long history of protecting symbolic expression.
After that decision, Congress passed the Flag Protection Act of 1989, which made it illegal to knowingly destroy or mutilate a U.S. flag. However, the Supreme Court nullified that law a year later, declaring it unconstitutional. (14)
Commercial and Corporate Speech
Does the First Amendment protect commercial speech and corporate speech, such as advertising or press releases promoting a point of view? Yes, although the protection is not as strong as that for political speech.
The most definitive ruling involving commercial speech comes from Central Hudson Gas & Electric Corporation v. Public Service Commission (1980). (15) In an effort to conserve electricity, the New York Public Service Commission tried to ban utility company advertising that promoted the use of electricity.
The U.S. Supreme Court held that the ban violated the First Amendment rights of the utility company. The court ruled the government could restrict commercial expression if it were unlawful or misleading. But if that were not the case, then the government would have to show that it has a substantial interest in regulating the speech and that the proposed regulation would advance the government interest and not be more extensive than necessary to promote that interest.
The high court has also delivered several rulings supporting corporate speech rights. Two of them also involved public utility companies and attempts by state commissions to limit or balance speech rights.
In the first case (Consolidated Edison Co. v. Public Service Commission, 1980), (16) the court ruled that the commission could not prohibit the utility company from inserting a flier in its billing statements that promoted nuclear power as a form of energy. In the second case (Pacific Gas & Electric Co., v. Public Utilities Commission of California, 1986), (17) the court ruled that the commission could not force a utility company to insert a flier from a third party opposed to the views of the utility company.
1. Madison is considered the "father of the U.S. Constitution" and was the fourth president of the United States.
2. Nine of the 13 original colonies already had enacted legislation protecting freedom of speech and the press. But many legislators in those and the other colonies wanted to ensure that the powers of the federal government were limited.