Freedom of Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”

Few portions of the Bill of Rights are as important, contested, and litigated as the First Amendment’s free speech clause. The relevant text—“Congress shall make no law … abridging the freedom of speech”—seems clear at first read, suggesting an absolute ban on Congressional regulation of speech.

This view, however, was not supported by the framers of the Constitution and has never been supported by the Supreme Court. A moment’s reflection shows us why:

• Imagine someone who reveals the locations of American troops in foreign lands on social media, leading to their deaths. Should their actions be protected by the Constitution?
• What about someone who threatens to kill another person?
• Asks another to commit a crime?
• Places misleading safety information on their product labels?
• Continues to disrupt a federal court proceeding?
• Lies about someone’s past actions, causing them to be fired from their job?

The first lesson of this unit is that “no law” does not mean, and has never meant, “no law.”

Once the absolutist reading of the free speech clause is dismissed, however, the question of what speech is protected quickly becomes a difficult one. As you work through this unit, take note of three central themes:

1. Disagreement over the purpose of the First Amendment. In other words, why do we protect free speech?

One view is that free speech is instrumental in advancing and protecting other fundamental values. For example, there are well-developed and longstanding arguments that democracy cannot properly function without protections for speech. Democratic government requires public discussion of issues, interests, and identities as well as the ability to freely critique public officials, all of which require protection for speakers. Free speech protections are also central to the search for truth, establishing a marketplace of ideas where competition between views, rather than government censorship, establishes what society believes.

Another view is that free speech is an intrinsic value, important in and of itself. In a free society, this argument goes, individuals should have the freedom to express themselves how they wish, regardless of what other ends such freedom might advance.

The differences between these theories are important because they help judges decide which speech should be protected. If you believe that free speech should be protected because it makes democracy function, for example, you might be more inclined to protect a letter to the editor or a peaceful protest than a controversial novel or work of art.

2. Disagreement over what legal tests and doctrine to employ. Since the Court has never accepted a literal or absolutist view of the free speech clause, it must create tests and legal frameworks to determine what speech is protected, as well as distinctions over when and where speech rights are stronger or weaker. Most of the framers, for example, believed that while the speech clause prevented the government from censoring the publication of speech (such as through newspapers), it did not protect individuals from being punished after the fact if such speech was found to be disruptive, dangerous, or outrageous. Contemporary courts, by contrast, employ stronger tests that make it much more difficult for governments to proscribe speech or punish speakers.

3. Change over time. As both the preceding themes demonstrate, the cases that follow illustrate substantial differences among the justices on both the purpose of the free speech clause and what tests courts should use. At the risk of oversimplifying, the basic story here is one of growing protection for free speech, both across various categories of speech as well as the mediums (newspapers, radio, television, social media) we use to speak. Watch for this trend in the cases we read in the following chapters.