1st Amendment and Freedom of Speech

According to the 1st Amendment, "Congress shall make no law ... abridging the freedom of speech." Does this mean that the freedom of speech is absolute and unlimited? Over time, court decisions have accepted that some restrictions can be placed on this fundamental freedom while at the same time expanding the definition of what kinds of speech are protected.

One limit the courts accept is time, manner, and place restrictions on speech. Governments are allowed to block speech by banning it at certain times, in certain ways, or in certain places. To meet this standard, though, the limitations must fulfill four criteria: they must (1) not relate to the content of the speech, (2) be narrowly defined, (3) have a significant government interest, and (4) allow appropriate alternatives. Under these rules, a government can prohibit speech made late at night, even in a public place, if those limits are placed in the interest of maintaining order and if the speech is allowed at another time.

Not long after the ratification of the Bill of Rights, the 1st Amendment was subjected to a fundamental challenge. The country's politics devolved into bitter partisanship between two emerging political parties, the Federalists and the Republicans (the latter of which eventually formed the Democratic Party). A Federalist-controlled Congress passed the Sedition Act in 1798, which made illegal "any false, scandalous and malicious writing" against the government. While criticism of the government seems precisely the kind of speech the 1st Amendment was meant to protect, the law was used to convict more than a dozen Republicans who had harshly criticized Federalist president John Adams or the Congress. It was never challenged in the courts, however, and expired in 1801. In the 1800 election, Republican Thomas Jefferson defeated Adams and became president. In his first inaugural speech, Jefferson argued in favor of the right of all "to think freely and to speak and to write what they think" and reject "political intolerance."

During World War I, Congress passed another law targeting critical speech—the Sedition Act of 1918. The law essentially criminalized speech criticizing the government's conduct of that war. In a notable case challenging the law, Schenck v. United States (1919), the Supreme Court set an important standard that lasted several decades. Schenck, a member of the Socialist Party opposed to U.S. involvement in World War I, had been arrested for violating the Espionage Act of 1917 by passing out fliers that urged men not to register for the draft the government instituted to expand the army. In its decision, the Supreme Court ruled that protection of free speech was not absolute. Such protection could be withdrawn if the speech posed "a clear and present danger," or a threat to society. The prohibition of this kind of speech is often illustrated with the example of a false cry of "Fire!" in a crowded theater. The chaos likely resulting from such an alarming statement is sufficient reason to prohibit freedom of speech in this situation.

Justice Oliver Wendell Holmes Jr., who wrote the decision establishing the clear and present danger test, soon after reconsidered it. While the court majority applied that test to let stand the conviction of another leftist radical opposed to U.S. action in World War I in Abrams v. United States (1919), Holmes dissented. Joined by Justice Louis Brandeis, he wrote that the small group of anarchists and their "silly leaflet" posed no clear and present danger to the government and Abrams's conviction should be overturned. The two justices issued a similar dissent in Gitlow v. New York (1925), a similar case in which a group of left-wing radicals urged a general strike. The clear and present danger standard stood, however, and was employed again in 1951 to uphold the conviction of several leaders of the American Communist Party in Dennis v. United States (1951). In this case, too, dissenting justices William O. Douglas and Hugo Black based their objections on the small size of the radical political party, which rendered it no real imminent threat to the government.

In 1969 the court established a sharper test to determine whether or not speech was protected by the 1st Amendment. Clarence Brandenburg, a leader in the racist Ku Klux Klan in Ohio, appealed his conviction for breaking an Ohio law that prohibited speech that urged violence or terrorism as a means of political reform. In Brandenburg v. Ohio, the Court granted the appeal. The decision stated that speech could be restricted or punished only if it supported "imminent lawless action." An example of such speech might be someone urging a crowd to take up weapons immediately and storm a government building. This standard essentially replaced the clear and present danger standard in determining whether limits on speech were legitimate.

Are only spoken words protected, or are symbolic actions an individual may take a protected form of speech? In 1969 in Tinker v. Des Moines, the Supreme Court held that symbolic speech, or expressive behavior that employs gestures or actions rather than words, was protected, ruling in favor of students who had been sent home from school for refusing to remove black armbands that protested U.S. policy in Vietnam. Likewise, in 1989 the Supreme Court upheld the burning of the U.S. flag in Texas v. Johnson, holding that "if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

The courts have also determined that campaign spending is a legitimate expression of 1st Amendment free speech. In 1971 Congress passed the Federal Election Campaign Act in an effort to prevent abuses in campaign financing. In Buckley v. Valeo (1971), the Supreme Court accepted limits on campaign contributions as a means of protecting the integrity of elections. However, the justices said, limits placed on campaign spending violated the 1st Amendment. As powerful interests and political parties found ways to circumvent campaign funding laws, Congress passed a tougher measure, the Bipartisan Campaign Reform Act of 2002. A corporation named Citizens United sued the Federal Elections Commission, which oversees elections, to protest the law's rules about corporate advertisements about political candidates. In Citizens United v. Federal Elections Commission (2010), the court declared unconstitutional the part of a campaign law that limited the amount corporations and labor unions could spend to promote the election of particular candidates for federal office because it violated the right to free speech under the 1st Amendment.

The 1st Amendment doesn't protect all types of speech. Among these types of speech is defamation, which is intentionally false statements about a person, whether spoken or written, made with the knowledge that they will harm the reputation of the subject of those statements. Defamation can be treated as a criminal or civil matter. Defamatory statements made in writing are called libel; defamatory statements made orally are called slander. Hard-core pornography, sometimes called obscenity, is also not protected speech, as well as child pornography and "fighting words"—or insulting language likely to trigger a physical fight. Finally, hate speech, which consists of insulting and threatening speech that denounces or degrades others because of their race, creed, or membership in a persecuted group, is not protected by the 1st Amendment.