By Ben Lenhart
Freedom of Speech: No right is more fundamental to the very idea of what it means to be an American. Liberty is at the heart of the Constitution, and freedom of speech is at the heart of liberty. The right to “speak your mind”—even if that means strongly criticizing our political leaders or their policies—is more entrenched and protected in the U.S. than in most other countries. This article looks at the history of free speech and where we stand today.
Origins of Free Speech. Befitting its importance, freedom of speech appears in the First Amendment, which states that, “Congress shall pass no law … abridging the freedom of speech.” The First Amendment was adopted in 1791 as part of the Bill of Rights. These rights, forming the first 10 Amendments to the Constitution, were added shortly after ratification to address deep concerns of Anti-Federalists that the newly formed central government would be too big and powerful and would run roughshod over fundamental rights held by all Americans. Many books have been written on where these fundamental rights originate—do they come from the essential nature of man? God? Social contract? Whatever their original source, every American’s freedom of speech is guaranteed “in writing” by the Constitution. Many countries protect free speech on paper, but what sets America apart is that we also “walk the walk.” Courts, journalists, regular citizens and many others work hard every day to ensure that free speech is not just something written on dusty paper, but a living and vibrant right with extraordinary legal protection.
Two Speech Amendments—1st and 14th. The First Amendment literally prohibits only the Federal Congress from curtailing speech. With the new Constitution, most people viewed the Federal government—not their local governments—as the greatest threat to liberty. For more than 100 years, the First Amendment did not apply to state restrictions on speech. That changed after the Civil War when states came to be viewed as a major threat to individual rights. The Civil War Amendments (13th, 14th and 15th) were aimed squarely at the states. Eventually the courts interpreted the Due Process clause of the 14th Amendment—and particularly the word “liberty”—to mean that freedom of speech applied equally to state and federal governments. Today, no government—city, county, state or federal—can deny your Constitutional right to free speech.
Speech and Private Parties. The Constitution applies only to governmental efforts to curtail speech. If a purely private entity (such as a private employer) restricts your speech, you may or may not have other legal recourse, but you could not claim a First Amendment violation. This is known as the “state action” requirement—the idea that the Constitution is aimed at protecting Americans from a government seeking to take away your liberties.
Two Brave Justices. With World War I raging, Congress passed the Espionage and Sedition Acts, banning a wide range of speech including certain statements criticizing the war effort or inciting scorn for the American form of our government. By doing nothing more than peacefully expressing their political views, many people ran afoul of these laws and were given long jail terms. This approach was challenged when two of our greatest justices, Oliver Wendell Homes and Louis Brandeis, began questioning the wisdom of jailing people based only on their speech. How, they asked, could a nation that truly believed in free speech punish people merely for peacefully expressing their views, especially when there was no sign that the speech would lead to law violation. Holmes and Brandeis wrote a series of now-famous dissents sharply criticizing the Court for failing to protect speech. They demanded that the Court respect the “sweeping command, Congress shall pass no law … abridging the freedom of speech.” They were heavily criticized for their “pro speech” stand and received threats and scorn from many corners.
Three Pillars of Free Speech. Holmes and Brandeis focused on three core virtues that make speech so vitally important. First, free speech serves as a check and balance against corruption and tyranny. That is why dictators ban free speech. Second, just as the best products succeed in the marketplace, the best ideas flourish in an open marketplace of ideas. The best antidote to bad speech is not to ban the speech but to counter it with good speech. As Holmes said, the “best test of truth is the power of the thought to get itself accepted in the marketplace.” A nation with an open marketplace of ideas will benefit because the best ideas rise to the top. Third, evoking Jefferson, Holmes and Brandeis argued that free speech is necessary to be a fully engaged citizen. A nation benefits from citizens who engage with the issues facing their town, state or country, but that engagement is impossible without free speech. Despite these powerful arguments, the Court majority long rejected the Holmes/Brandeis position. But their views eventually triumphed, and since the seminal Brandenburg case in the 1960s (holding that a racist speech by the KKK was protected by the Constitution) every American now has the right to speak openly and critically about the issues of the day, even if that means using controversial or offensive language that would have caused them to be jailed decades earlier (and would still cause them to be jailed in many countries today).
Key Exceptions. There are a few areas of speech that are not protected by the Constitution. Examples include obscenity, libel, speech causing a clear and present danger of law violation, and fighting words. Each of these areas is narrow and carefully defined by the courts (although the outer edges are hotly contested).
Toxic Speech—Still Free? Free Speech is at greatest peril when the speech is least popular. Should we protect toxic speech defending Nazis, the KKK or ISIS? Holmes would say that the answer to this terrible speech is not to ban it, but rather to counter it with good speech. While all (or nearly all) agree that pro-Nazi speech is awful and simply wrong, nevertheless it is almost always protected under the Constitution because our Founding Fathers believed—a belief proven repeatedly by world events—that the greater risk to our freedom comes if we start down the road of allowing the government to choose what speech to ban and what to allow.
[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]