Hear ye, hear ye! Criticizing the government or its leaders in verbal speech, symbolic speech, or in print can be a dangerous thing at times. In the centuries leading up to the American Revolution, many people were imprisoned or executed for insulting kings and queens. That's why the protection for freedom of speech in the Constitution is so important - it protects citizens who want to criticize or protest government actions and helps prevent the government from getting away with bad policies.
Freedom of Speech Definition
Freedom of speech is the constitutional right that protects Americans' ability to say or express what they want without fear of reprisal from the government. The Constitution doesn't define what "speech" means, so it's often left up to the courts to decide what they mean as situations arise that set the precedent for future generations.
Freedom of Speech in the Constitution
Some people might not realize that the Constitution originally didn't include freedom of speech - or any individual rights for that matter! They were only added afterward, as several states refused to ratify the Constitution unless a Bill of Rights was added.
When it came time for the states to ratify the Constitution, some said that they would do it only if they added a Bill of Rights: a list of individual rights that the government couldn't violate.
The compromise worked - the Constitution was ratified in 1789 and the Bill of Rights was added in 1791. The Bill of Rights is made up of the first ten amendments to the Constitution. It starts off strong with the First Amendment.
Freedom of Speech First Amendment
We find "freedom of speech" in the Constitution in the First Amendment, which reads:
Congress shall make no law... abridging the freedom of speech.
There are some more important rights in the First Amendment along with Freedom of Speech - for more information on those, check out Freedom of Religion and Freedom of the Press!
The Sedition Act of 1798
How well do we live up to our ideals? In 1798, Congress passed the Sedition Act, which was strongly criticized as violating freedom of speech.
In 1798, the new country's relations between its two political parties were deteriorating, along with the threat of war with France. The Federalists were in power, and they feared that their political opponents, the Democrat-Republicans, would side with France to try to gain power. The Act made it illegal to "print, utter, or publish...any false, scandalous, and malicious writing" about the government. This, along with other attempts to suppress free speech, led to the downfall of the Federalist party in 1800.
The Sedition Act of 1789, pictured above, was very controversial and unpopular. Source: National Archives
Freedom of Speech Limitations
Freedom of speech is important, but the government has also had to deal with the problem of certain types of speech that are deemed immoral, unhelpful, or problematic. These types of speech fall under the category of Non-Protected Speech.
Fighting Words
The Supreme Court has ruled that "lewd and obscene... profane... libelous, and... insulting or ‘fighting’ words" are not protected by the First Amendment. They defined "fighting words" as words that "by their very utterance" inflict injury or disturb the peace.1.
Incitement of Violence or Lawlessness
Along with fighting words, the government doesn't protect speech that encourages people to commit acts of violence or break the law. Threats of violence or harassment are also outlawed.
Obscenity
The government has also stepped in to regulate certain types of speech or expression that are considered obscene. This can include certain forms of sexual materials and profanity.
The Supreme Court has ruled that the government can't outlaw pornography because it is protected under freedom of expression. However, they have drawn a line at child pornography. According to the Supreme Court, the government has the authority to prohibit these materials because it has a compelling interest in protecting children from abuse.
Defamation
The other category that the government doesn't protect is defamation, which refers to lies or attempts to attack another person's character or reputation. This includes both libel (written words) and slander (spoken words).
One group that doesn't have as much protection from defamation is government officials. If newspapers were liable for mistakenly printing an inaccuracy about a public official, it could make journalists more afraid to publish negative things about them. Because of this, the Supreme Court ruled in New York Times v. Sullivan (1964) that public officials have to prove that the newspaper printed false information with malice rather than an honest mistake.
New York Times v. Sullivan centered around the advertisement above called Heed Their Rising Voices, which Sullivan felt had inaccuracies that made him and his police officers look bad. Source: Wikimedia Commons
Perjury
Perjury is when you lie while under oath in court. The government does not protect this form of speech.
Freedom of Speech Examples
When the framers added freedom of speech to the Bill of Rights, they did so with the intention of ensuring that citizens could critique government. However, sometimes the courts have had to draw the line between doing something rude and doing something illegal.
Police Officers
One highly contested area of critiquing public officials has to do with police officers and whether the First Amendment protects people who yell at and/or insult them.
The Supreme Court has ruled that the First Amendment protects the right to verbally criticize or challenge police officers. They said that the freedom to verbally "oppose or to challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”
The ruling came in 1987 after a man named Raymond Wayne Hill was arrested for yelling "Why don't you pick on someone your own size?" to police officers after they arrested his friend.
More recently, in 2019, a man named Joseph Workman was arrested after swearing at police officers. When the case went to court, they confirmed previous cases where the Supreme Court said that crass speech on its own cannot be criminal (unless it's coupled with fighting words or incitement of violence).
Journalism
What if journalists get ahold of information that makes the United States look bad? Should they publish it in the name of transparency, or keep it hidden to protect the country's reputation?
This came up in New York Times v. United States (1971), when the New York Times obtained what became known as the "Pentagon Papers," which were thousands of classified documents about the Vietnam War. The papers made the United States' involvement look incompetent and deceptive. President Richard Nixon tried to block the newspaper from publishing the papers. When the New York Times sued, the Supreme Court ruled that publishing the papers was protected by the First Amendment.
The Vietnam War lasted from 1955 to 1975 and cost thousands of lives and billions of dollars. By the 1960s, the war was extremely unpopular and led to some of the most influential cases around freedom of speech.
A protestor in 2011 with a sign comparing the protection of Wikileaks (a website used for leaking government information) to the Pentagon Papers. Source: Max Braun, Wikimedia Commons, CC-BY-SA 2.0
Flag Burning
Along with critiquing government comes some forms of protest that some people may find distasteful. One of those issues is burning the American flag. When flag burning became a popular form of protest in the 1960s (think of Civil Rights and the Vietnam War), Congress tried passing laws making it illegal to burn the flag.
In Texas v. Johnson (1989), a man burned an American flag to protest President Ronald Reagan's policies. He was arrested and took the issue to court. The Supreme Court said that government can't prevent free speech just because they think it's offensive or disagreeable.
Congress passed the Flag Protection Act of 1989 in response to the Supreme Court's decision, but the law was quickly struck down by the Supreme Court as an unconstitutional violation of the First Amendment.
Freedom of Speech Court Cases
Many of the most controversial Supreme Court cases have centered around issues related to freedom of speech.
Schenk v. United States (1919)
In 1917 (during World War I), a man named Charles Schenk was arrested for encouraging people to dodge the draft. Schenk argued that his actions were protected as freedom of speech.
The Supreme Court ruled against him, noting that during times of war, citizens' rights may take a back seat to national security. They developed the clear and present danger test, which assesses whether the individual's actions represent a clear and present danger to the United States or to the law.
In making the ruling, the judge used an example of someone intentionally and falsely shouting "fire!" in a crowded theater. This action would not be protected by the First Amendment right to freedom of speech because it would cause a panic and a clear and present danger to others.
Tinker v. Des Moines (1969)
One of the earliest and most influential Supreme Court cases related to the freedom of speech is Tinker v. Des Moines. A group of students decided to wear black armbands with white peace symbols on them to protest the Vietnam War. When the school ordered them not to wear it and then suspended them, they took the case to court.
The Supreme Court ruled in the students' favor, noting that freedom of speech applies to students as well, even if they're on public school property. They developed the Tinker Standard and decided that their actions constituted symbolic speech, which is protected under the First Amendment.
The Tinker Standard says that students' freedom of speech must be protected unless the school has substantial evidence that their actions will disrupt the school or interfere with the rights of others.
Skokie v. National Socialist Party of America (1978)
Freedom of speech applies to all views, whether they are offensive or not. This happened in the case of Skokie v. National Socialist Party of America (NSPA) (1978), when the NSPA, a group that associated itself with Hitler's Nazi party, decided to hold a demonstration in the village of Skokie. Skokie was a predominantly Jewish town, with some residents having survived the holocaust. The town wanted to block the demonstration by imposing difficult requirements for demonstrations. When the case went to the Supreme Court, they decided that blocking the demonstration violated the First Amendment.
Even offensive or sometimes hateful speech is protected by the First Amendment.
Freedom of Speech - Key takeaways
- Freedom of Speech is established in the First Amendment of the Constitution, which says that Congress shall make no law abridging freedom of speech.
- Not all forms of speech are protected. Non-protected speech includes fighting words, obscenity, and defamation.
- Insulting or swearing at police officers, printing information that makes the United States look bad, and burning the American flag in protest have all been protected in Supreme Court cases under freedom of speech.
- Some important Supreme Court cases around freedom of speech include Schenk v. United States, Tinker v. Des Moines, and New York Times v. United States.
References
- Francis Murphy, Majority Opinion, Chaplinsky v. New Hampshire, 1942
Explanations 
Exams 
Magazine 
