Which Amendment Protects Freedom Of Speech

History Of The First Amendment

Although the rights embodied in the First Amendment were not included in the original draft of the United States Constitution, they were essential in its ratification. After the Constitutional Convention, several states, including New York, refused to ratify the new Constitution because it lacked a Bill of Rights. Legislatures in these states only agreed to sign off on the new plan for the United States government if Congress promised to add protections for freedom of speech, religion, and the press.

James Madison agreed to write this Bill of Rights, which included the First Amendment, the Second Amendment right to bear arms, and due process rights. He based his draft on the Virginia Declaration of Rights written by George Mason. The Bill of Rights originally included 19 amendments, but seven were rejected by the Senate and the House of Representatives.

Memoirs Of Convicted Criminals

In some states, there are Son of Sam laws prohibiting convicted criminals from publishing memoirs for profit. These laws were a response to offers to David Berkowitz to write memoirs about the murders he committed. The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon & Schuster v. Crime Victims Board . That statute did not prohibit publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a time. The interest from the escrow account was used to fund the New York State Crime Victims Boardan organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.

What Are Some Free Speech Protections And Limitations On Campus

• Disruptive Activity: Any act that unreasonably interferes with the rights of others to peaceably assemble or to exercise the right of free speech, disrupts the normal functioning of the University, damages property, or endangers health or safety is specifically prohibited.
• Reasonable Access: The University is required by law to provide and maintain reasonable access to, and exit from any office, classroom, laboratory, or building. This access must not be obstructed at any time.
• Symbolic Protest: Displaying a sign, gesturing, wearing symbolic clothing, or otherwise protesting silently is permissible unless it is a disruptive activity or impedes access to facilities. In addition, such acts should not block the audiences view or prevent the audience from being able to pay attention to a lawful assembly and/or an official University event.

Since ESU is a government entity , we are barred by the Constitution from limiting or addressing speech outside of the above limitations. All government entities can propose limits on speech limit the time, place, or manner in which they occur however, they must be content-neutral. Government entities cannot impose limitations on speech because some people do not like it. The content, or point of view, cannot matter.

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The Publics Biggest Miss: The First Amendment Protects Speech From Actions By The Government

The most fundamental misunderstanding about the First Amendments freedom of speech concerns from whom the freedom protects you: namely, the government.

Remember the text of the amendment? Congress shall make no law abridging the freedom of speech? While the courts have expanded the meaning of Congress, no law, and abridging, it still applies only to state action.

To rewrite the relevant part of the amendment another way: The government shall take no action limiting the freedom of speech. Further yet, the government shall take no action limiting the freedom of speech that does not overcome the bar set by strict scrutiny .

So while the Supreme Court has greatly expanded the freedom of speech over the years, the First Amendment only protects individuals from the government, not the actions of private third parties. The freedom of speech does not protect you from a private employer firing you for calling your boss an idiot, or from Twitter banning you for threatening to blow up the Statue of Liberty, or from a restaurant ejecting you for announcing that their mask policy is an anarchosocialist conspiracy to prevent you from getting mozzarella sticks.

The First Amendment protects you from the government. That is the most common misperception about the First Amendment: it does not protect you from the actions of private third parties, but only the government. The freedom of speech is a legal rightit does not protect you from all consequences for your speech.

Speech Critical Of The Government

The Supreme Court declined to rule on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. For example, the Supreme Court never ruled on the Alien and Sedition Acts three Supreme Court justices riding circuit presided over sedition trials without indicating any reservations. The leading critics of the law, Vice President Thomas Jefferson and James Madison, argued for the Acts’ unconstitutionality based on the First Amendment and other Constitutional provisions. Jefferson succeeded Adams as president, in part due to the unpopularity of the latter’s sedition prosecutions he and his party quickly overturned the Acts and pardoned those imprisoned by them. In the majority opinion in New York Times Co. v. Sullivan , the Court noted the importance of this public debate as a precedent in First Amendment law and ruled that the Acts had been unconstitutional: “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”

World War I

Extending protections

The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process.

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The Supreme Court And The First Amendment

During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

What Does Protected Speech Include

First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 and again in 1990 , the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination — and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

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What Does Free Speech Mean

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct and symbolic , that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

Congress shall make no law…abridging freedom of speech.

What Types Of Speech Are Protected By The First Amendment

What exactly is in the First Amendment?

Well, most importantly, and perhaps the source of so much misunderstanding, is that the Amendment begins with Congress shall make no law.

Many people gloss over this part.

They believe that the First Amendment personally guarantees THEM an inalienable right to speech, press, religion, and so on.

But all it really covers is what Congress is not allowed to restrict through specific laws.

Now, surprisingly, the First Amendment is only 45 words long.

It opens with, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

This is called the Establishment Clause.

It means that Congress cannot favor a particular religion through legislature, nor can it legislate against the practice of a particular religion.

This clause has been used to stop state-sanctioned prayer in public schools, as well as to remove several displays of the Ten Commandments in front of courthouses.

It is also the basis of what is referred to as the separation between church and state.

Freedom of Speech:

Freedom of speech is used to justify a persons supposed right to publicly state anything they want. However, this is very far from the truth.

There are a lot of situations where speech is extremely limited, and it is completely legal.

Additionally, the Supreme Court has ruled that there are a number of exceptions to free speech.

Freedom of press:

Freedom of press is similar, but better understood.

And, thats it.

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How Do We Balance Potential Conflicts Between Social Justice And Free Speech

From a social justice lens, some questions raised about free speech may include:

• Speak loudly and clearly against expressions of racist, sexist, homophobic, and transphobic speech, as well as other instances of discrimination against marginalized individuals or groups.
• React promptly and firmly to counter acts of discriminatory harassment, discrimination, or intimidation.
• Create forums and workshops to raise awareness and promote dialogue on issues of race, sex, sexual orientation, and gender identity.
• Intensify efforts to ensure broad diversity among the student body, throughout the faculty, and within the college administration.
• Vigilantly defend the equal rights of all speakers and all ideas to be heard, and promote a climate of courageous and uninhibited dialogue and debate open to all views, no matter how controversial.

Freedom Of Speech Applies To Political Matters

Originally, freedom of speech was included as an amendment protection to the United States Constitution to keep the political debate in the young nation largely unrestricted. Therefore, the speech primarily protected by the First Amendment is political debate and other forms of speech related to the government.

This also allows for large amounts of slander, accusations, and outright lies to be spread about political figures, as it is technically protected under the 1st Amendment.

Furthermore, private entities are not obligated to respect freedom of speech. For example, an employer can impose non-disparagement clauses to keep employees from speaking negatively about the company or its products, and non-disclosure agreements are common in modern contract law.

Because none of the participating parties are part of or otherwise affiliated with government entities, they are not required to respect an individuals freedom of speech.

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Freedom Of Speech Does Not Include The Right:

• To incite imminent lawless action.Brandenburg v. Ohio, 395 U.S. 444 .
• To make or distribute obscene materials.Roth v. United States, 354 U.S. 476 .
• To burn draft cards as an anti-war protest.United States v. OBrien, 391 U.S. 367 .
• To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 .
• Of students to make an obscene speech at a school-sponsored event.Bethel School District #43 v. Fraser, 478 U.S. 675 .
• Of students to advocate illegal drug use at a school-sponsored event.Morse v. Frederick, __ U.S. __ .

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

Freedom Of Speech / Freedom Of The Press

The most basic component of freedom of expression is the right to freedom of speech. Freedom of speech may be exercised in a direct or a symbolic way. Freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights. The right to freedom of speech allows individuals to express themselves without government interference or regulation. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. Generally, a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements.

A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the forum in which it takes place.

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Wording Of The Clause

The First Amendment bars Congress from “abridging the freedom of speech, or of the press”. U.S. Supreme Court Justice John Paul Stevens commented about this phraseology in a 1993 journal article: “I emphasize the word ‘the’ in the term ‘the freedom of speech’ because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech.” Stevens said that, otherwise, the clause might absurdly immunize things like false testimony under oath. Like Stevens, journalist Anthony Lewis wrote: “The word ‘the’ can be read to mean what was understood at the time to be included in the concept of free speech.” But what was understood at the time is not 100% clear. In the late 1790s, the lead author of the speech and press clauses, James Madison, argued against narrowing this freedom to what had existed under English common law:

The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.

Examples Of Protected Speech

The following are examples of speech that the Court has decided are either entitled to protection of the First Amendment , or not.

Freedom of speech includes the right:

• Not to speak .West Virginia Board of Education v. Barnette, 319 U.S. 624 .
• Of students to wear black armbands to school to protest a war .Tinker v. Des Moines, 393 U.S. 503 .
• To use certain offensive words and phrases to convey political messages.Cohen v. California, 403 U.S. 15 .
• To contribute money to political campaigns.Buckley v. Valeo, 424 U.S. 1 .
• To advertise commercial products and professional services .Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 Bates v. State Bar of Arizona, 433 U.S. 350 .
• To engage in symbolic speech, .Texas v. Johnson, 491 U.S. 397 United States v. Eichman, 496 U.S. 310 .

Freedom of speech does not include the right:

• To incite actions that would harm others .Schenck v. United States, 249 U.S. 47 .
• To make or distribute obscene materials.Roth v. United States, 354 U.S. 476 .
• To burn draft cards as an anti-war protest.United States v. OBrien, 391 U.S. 367 .
• To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 .
• Of students to make an obscene speech at a school-sponsored event.Bethel School District #43 v. Fraser, 478 U.S. 675 .
• Of students to advocate illegal drug use at a school-sponsored event.Morse v. Frederick, __ U.S. __ .

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Why Is Free Speech Important On A Campus Like Esu

A university like ESU exists to educate students and advance their critical thinking skills by acting as a marketplace of ideas where ideas compete. This competition of ideas is necessary and critical to maintain the intellectual vitality of the university. Without protected free speech, students and faculty members may fear punishment for expressing unpopular views with the public at large or fear of reprimand by university administrators.

In a democracy, everyone has freedom of speech. At times, that may mean exposure to mean-spirited, offensive, disparaging, hateful, hurtful, and even angering comments. This often creates confusion because it seems unfair and completely wrong that the First Amendment protects offensive speech. Freedom of speech is meant to protect everyone because it is neutral. Because someone has the right to express their ideas even if some find their ideas offensive, hateful, repulsive, hurtful, and wrong, it means everyones right to express ideas is protected.

Offensive words and statements may trigger emotions that are real, raw, and deep when these words and statements are embedded in historically oppressive, violent, and white supremacist systems. However, when speech begins to be limited, you dont know where that limitation ends. The answer to offensive speech is not less speech, it is more speech.