Freedom of speech

(Redirected from Freedom of expression)

Categories: Freedom of expression | First Amendment to the U.S. Constitution | United States law

Freedom of speech is often regarded as an integral concept in modern liberal democracies, where it is understood to outlaw censorship. Free speech is nowadays also protected by international human rights law, notably under Article 19 of the Universal Declaration of Human Rights, although implementation remains lacking in many countries.

The right to freedom of expression is not considered unlimited; governments may still prohibit certain damaging types of expressions. Under international law, restrictions on free speech are required to comport with a strict three part test: they must be provided by law; pursue an aim recognized as legitimate; and they must be necessary (i.e., proportionate) for the accomplishment of that aim. Amongst the aims considered legitimate are protection of the rights and reputations of others (prevention of defamation), and the protection of national security and public order, health and morals.

History of free speech

The philosopher Alexis de Tocqueville observed that people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. While this type of suppression of speech is even more difficult to prevent than government suppression, there are questions about whether it truly falls within the ambit of freedom of speech, which is typically regarded as a civil liberty, or freedom from government action.

Theories of free speech

Self-governance

One theory is that freedom of speech is crucial in any democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their government's choice of policies. Also, public officials are held accountable through criticisms that can pave the way for their replacement. The US Supreme Court has spoken of the ability to criticize government and government officials as "the central meaning of the First Amendment." New York Times v. Sullivan. But "guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government." Time, Inc. v. Hill

Some suggest that when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech--to avoid accountability.

Alternatively, it may be argued that some restrictions on freedom of speech may be compatible with democracy or necessary to protect it. For example, such arguments are used to justify restrictions on support of Nazi ideas in post-war Germany.

Discovering truth

A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth. Justice Oliver Wendell Holmes wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." Abrams v. United States Justice Holmes also invoked the powerful metaphor of the "marketplace of ideas."

This marketplace of ideas rationale for freedom of speech has been criticized by scholars on the grounds that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources.

The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur in the interim. However, even if these weaknesses of the marketplace of ideas are acknowledged, supporters argue that the alternative of government determination of truth and censorship of falsehoods is worse.

Advancing autonomy

Another rationale is that it is an essential aspect of personhood and autonomy. Professor Baker said that "to engage voluntarily in a speech act is to engage in self-definition or expression. A Vietnam war protester may explain that when she chants 'Stop This War Now' at a demonstration, she does so without any expectation that her speech will affect continuance of the war ... rather, she participates and chants in order to define herself publicly in opposition to the war. This war protester provides a dramatic illustration of the importance of this self-expressive use of speech, independent of any effective communication to others, for self-fulfillment or self-realization." This view suggests a rationale for the protection of acts of expression that are not obviously political or vital to self-government, such as abstract art, music, or dance.

Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that "the First Amendment serves not only the needs of the polity but also those of the human spirit -- a spirit that demands self-expression." (Procunier v. Martinez, 416 U.S. 396, 1974).

Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.

Promoting tolerance

Another explanation is that it is integral to tolerance, which some people feel should be a basic value in society. Professor Lee Bollinger is an advocate of this view and argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." The free speech principle is left with the concern of nothing less than helping to shape "the intellectual character of the society."

This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.

Free speech internationally

In democratic countries, freedom of speech is taken for granted, though the exact degree of freedom varies between countries and jurisdictions. This freedom generally includes:

• the right to criticize the political system and political leaders, including those in power;
• the right to criticize public and corporate policies;
• the right to criticize religious and political ideas.

Still, in no country is freedom of speech absolute. Limits include, for instance, the prohibition of libel and slander (or defamation) – that is, publishing or saying things that are detrimental to one person in an "unfair" way, though, again, the exact limits of what is prosecutable vary. Some democratic countries prohibit so-called "hate speech" – speech that is intended to stir up aggression against certain groups for religious, racial, etc. reasons.

Australia

Unlike most other nations that legally protect freedom of speech, Australia does not have a bill or declaration of rights. However, in 1992 the High Court of Australia judged in the case of Australian Capital Television Pty Ltd v Commonwealth that the Australian Constitution, by providing for a system of representative and responsible government, implied the protection of political communication as an essential element of that system. This freedom of political communication is not a broad freedom of speech as in other countries, but merely a freedom which protects political free speech. It is also a 'shield', rather than a 'sword' - as it does not establish a cause of action by itself.

Africa

The majority of African constitutions provide legal protection for freedom of speech. However, these rights are exercised inconsistently in practice. The replacement of authoritarian regimes in Kenya and Ghana has substantially improved the situation in those countries. On the other hand, Eritrea allows no independent media and uses draft evasion as a pretext to crack down on any dissent, spoken or otherwise. One of the poorest and smallest nations in Afica, Eritrea is now the largest prison for journalists; since 2001, fourteen journalists have been imprisoned in unknown places without a trial.Sudan, Libya, and Equatorial Guinea also have repressive laws and practices. In addition, many state radio stations (which are the primary source of news for illiterate people) are under tight control and programs, especially talk shows providing a forum to complain about the government, are often censored.

Freedom of speech is increasing in oil-producing countries (such as Equatorial Guinea, Chad, Cameroon, and Gabon), because it gives the oil companies a good impression.

Asia

Several Asia countries guarantee freedoms of speech to their citizens. They are not however implemented in practice at most places. Countries like Vietnam, Myanmar, North Korea and Central Asian Republics like Turkmenistan brutally repress freedom of speech. Freedom of speech is also severely suppressed in China, though with the economic progress, those barriers have been reduced.

India

The Indian constitution guarantees freedom of speech to every citizen and there have been landmark cases in the Indian Supreme Court that have affirmed the nation's policy of allowing free press and freedom of expression to every citizen. In India, citizens are free to criticize politics, politicians, bureaucracy and policies. The freedoms are comparable to those in the United States and Western European democracies.

Article 19 of the Indian constitution states

All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

European Union

The European Convention on Human Rights, when signed on 4 November 1950, proclaimed a broad range of human rights already in existence in the signatories countries (the members of the Council of Europe). These rights include Article 10, which entitles all citizens to free expression.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

It also included some other restrictions:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Each country then had to alter their laws to conform with this, where necessary. In 1998, the United Kingdom implemented the Human Rights Act which granted the judiciary power to apply these rights to cases, and a requirement for Parliament to check compatibility of new laws with the Convention rights. If a judge finds a law to be 'incompatible' with the given Convention rights, then the law must be amended to incorporate these protections.

European-wide cases have been heard in the European Court of Justice as well as the European Court of Human Rights to guarantee these privileges - and cases have tested the need for professional integrity (as a journalist or lawyer) and the compatibility of one with the Human Rights law.

A major issue regarding freedom of speech is the application of defamation (libel) laws. Some countries have been criticized for putting too much burden on the defendant; a recent example is the so-called "McLibel case", against the United Kingdom. [1]

France

The Declaration of the Rights of Man and of the Citizen, of constitutional value, states, in its article 11:

The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, save [if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.

In addition, France adheres to the European Convention on Human Rights and accepts the jurisdiction of the European Court of Human Rights.

The right to criticize politicians and the government is cherished and taken for granted by the French population. France has a tradition of political lampooning and satirical writing. Examples of this tendency include the frequent depiction in a popular television program of president Jacques Chirac as a beer-guzzling incompetent, thief and liar.

French law prohibits public speech or writings that incite to racial or religious hatred, as well as those that deny the Jewish Holocaust. Proponents and supporters of these measures allege that they fight against the spread of neo-nazi ideas and a climate of racism; opponents contend that these laws stifle the freedom of speech in France, and make it difficult to engage in the criticism of the practices of some religions, or in the discussion of immigration. The only major party opposed to those laws are the National Front whose leader, Jean-Marie Le Pen, has been a target of them.

In December 2004, a controversial addition was made to the law, criminalizing the prohibition to hatred or violence against people because of their sexual orientation.

France does not implement any preliminary government censorship for written publications; plaintiffs have to demonstrate the violation of law in court. However, press publications must have an identifiable director of publishing, and publications directed towards the youth have supplemental obligations. Also, the government has a commission recommending movie classifications, the decisions of which can be appealed before the courts. Finally, the government restricts the right of broadcasting to authorized radio and television channels; the authorizations are granted by an independent administrative authority; this authority has recently removed the broadcasting authorizations of some foreign channels because of their antisemitic content.

The 1994 Toubon Law restricts the use of foreign language words in government official publications and commercial speech; it has often been incorrectly described in the English-speaking press as prohibiting English words from all publications and web pages in France.

External links

• Law of July 29, 1881, on the Freedom of the Press (up-to-date amended version) [see Art. 24]

Germany

Reporters without borders world-wide press freedom index 2002 ranked Germany 7th out of 139 countries (in a three way tie). Freedom of speech is guaranteed by article 5 of the German Grundgesetz ("basic Law"). There are, however, some restrictions, for example personal insults or hate speech (Volksverhetzung). The latter includes the propagation of neo-Nazi ideas and the use of Nazi symbols like the swastika, except for purposes of art, research or education. These restrictions are justified as being necessary to protect the democratic constitution of Germany. In fact the German Grundgesetz does not protect Freedom of speech per se but the Freedom of expression of opinion which results in subtle differences concerning speech which is not meant to express an opinion.

Poland

"Statutes of Wiślica" introduced in 1347 by Casimir_III_of_Poland codified freedom of speech in medieval Poland e.g. book publishers were not to be persecuted.

As of 2005, people are sometimes convicted and/or detained for about one day for insults to religious feeling (of the Catholic Church) or to heads of state who are not yet, but soon will be, on Polish territory.

On July 18 2003, Dorota Nieznalska was sentenced to six months of community service for having published an art work showing a penis on a cross, which was considered to be an insult to religious feeling.

On January 5 2005, Jerzy Urban was sentenced to a fine of 20,000 złoty (about 5000 euros) for having insulted Pope John Paul II as a visiting head of state.

During January 26-January 27 2005, about 30 human rights activists were temporarily detained by the police, allegedly for insulting Vladimir Putin as a visiting head of state. The activists were released after about 30 hours and only one was actually charged with insulting a foreign head of state. [2]

Republic of Ireland

Freedom of speech is protected by Article 40.6.1 of the Irish constitution. However the article qualifies this right, providing that it may not be used to undermine "public order or morality or the authority of the State". Furthermore, the constitution explicitly requires that the publication of "blasphemous, seditious, or indecent matter" be a criminal offence. Under the European Convention On Human Rights Act, 2003, all of the rights afforded by the European Convention form an integral part of the Republic of Ireland's laws. The act is, however, subordinate to the constitution.

North America

Canada

The constitutional provision that guarantees Freedom of expression in Canada is section 2(b) of the Canadian Charter of Rights and Freedoms.

2. Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Due to section 1 of the Charter, the so-called limitation clause, Canada's freedom of expression is not absolute and can be limited under certain situations.

The section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added)

This section is double edged. First it implies that a limitation on freedom of speech prescribed in law can be permitted if it can be justified as being a reasonable limit in a free and democratic society. Conversely, it implies that a restriction can be invalidated if it cannot be shown to be a reasonable limit in a free and democratic society.

The former case has been used to uphold limits on legislation which are used to prevent hate speech and obscenity.

In April 29, 2004, Bill C-250 was passed which includes as hate speech propaganda against people based on their sexual orientation. It is now illegal to publicly incite hatred against people based on their colour, race, religion, ethnic origin, and sexual orientation. However, under section 319 on hate speech, a person cannot be convicted of hate speech "if the person can establish that the statements made are true."

An example of the limiting of obscenity is that case Forget v. Quebec (Attorney General) 1988, (2 S.C.R. 90) decision in which the Supreme Court invalidated the Charter of the French Language also known as Bill 101. One of the reasons it gave for invalidating it was that it was not a reasonable limitation under sec. 9 of the Quebec Charter of Rights and Freedoms and under art. 1 of the Canadian Charter of Rights and Freedoms. This decision was one of the first cases after the Oakes test was established. Bill 101 was subsequently put into effect though by invoking the notwithstanding clause of the Charter.

United States

Main article: Freedom of speech in the United States

In the United States freedom of expression is protected by the First Amendment to the United States Constitution. There are many exceptions to this general rule, including copyright protection, the Miller test for obscenity and greater regulation of so-called commercial speech, such as advertising. The Miller test in particular rarely comes into effect.

The principle of freedom of speech promotes dialogues on public issues, but it is most relevant to speech which is unpopular at the time it is made. As a Pennsylvania state legislator, Rep. Mark B. Cohen of Philadelphia, once argued in a legislative debate, "Freedom of speech which is limited to freedom to say whatever a majority of the Pennsylvania legislature agrees with is not real freedom of speech".

Generally, the U.S. has a liberal policy on freedom of expression, with no formal government censorship of the news media (with the exception of decency standards for radio and television) or creative arts. When expressive content is held to lie beyond the protection of the First Amendment, the finding is usually made by a court during a prosecution after the content is published or publicly exhibited; courts view "prior restraint" of expression with great suspicion (see below). It might nonetheless be argued that the threat of post-facto punishment is sufficient to prevent certain types of speech from being uttered (or specifically, broadcast) in the first place.

Many Americans deeply cherish their right of free speech and take it for granted. However, this attitude is sometimes not universally found in polls. A 2004 survey conducted by the University of Connecticut questioned 112,003 U.S. high school students and found the following:

• 36% believe newspapers should be required to seek government approval of each story before publishing it;
• 32% believe the press has "too much freedom"
• 74% believe it should be illegal to burn or deface the U.S flag.

Some Americans grossly overestimate the degree of censorship which occurs in other First World countries, and believe that completely free speech exists – and only exists – in the USA. This is not the case. The U.S. Government directly controls speech in a number of areas, most notably in the case of the Federal Communications Commission regulating broadcast radio and television. Much content which would be considered unexceptional in most other First World countries is directly censored by the FCC, since it falls foul of the "community standards" definition of obscenity or indecency. An increasing amount of video content is now sent over cable and satellite systems (thus escaping FCC review), and there has been some debate over whether the FCC should have jurisdiction over such communications systems.

Similar censorship applies to items sent via the United States Postal Service. Certain state and local governments (it depends on the region) regularly exercise censorship power in their licensing of theatrical performances, movies and other entertainment or artistic works. (See Roth v. United States and Miller v. California for more on the "community standards" test.)

However it is true that in terms of purely political or religious speech, and freedom of the (printed) press, the U.S. experiences significantly less censorship than most other countries. For instance, a U.S. newspaper may freely express opinions which in other places might be criminalized as "hate speech," and organizations dedicated to such speech may freely march and speak in public (after having complied with all relevant content-neutral regulations). For these reasons, the Web services of most neo-nazis organizations, and most Holocaust deniers, etc. are hosted in the United States. This is a point of contention with some lobby groups in other countries, who point out that these organizations advocate policies that historically resulted in the deprivation of free speech and democratic rights, as well as the mass extermination of millions.

Also, the U.S. Supreme Court has made it clear that the federal and state governments cannot normally tell newspapers (or others) to not publish something, just because of the potential for damaging national security (as in the Pentagon Papers case) or harming private citizens (such as the accuser of Kobe Bryant). However, the Court has said that in exceptional cases such prior restraint might be permissible. As long as the newspapers are acquiring information in good faith, the government and private citizens bear the burden of keeping information secret if they do not want such information to be published.

An area of growing concern is the use of copyright laws to restrict free speech, more particularly with the enactment of the controversial Digital Millennium Copyright Act (DMCA). For instance, the Church of Scientology has waged successful legal battles to restrict the diffusion of some documents, which it considers its intellectual property. Critics contend that this is merely a way to prevent criticism — critics which do not quote authoritative Scientology documents are deemed to be discussing things they do not know about, and those who show authoritative documents are prosecuted for copyright infringement. Scientology has used the DMCA to force notable Web sites (including the Google search engine) to remove all references to the Operation Clambake site, which published such documents.

Neither the federal nor state governments engage in preliminary censorship of movies. However, the Motion Picture Association of America has a rating system, and movies not rated by the MPAA cannot expect anything but a very limited release in theatres, making the system almost compulsory. Since the organization is private, no recourse to the courts is available. The rules implemented by the MPAA are more restrictive than the ones implemented by most First World countries. However, unlike comparable public or private institutions in other countries, the MPAA does not have the power to limit the retail sale of movies in tape or disc form based on their content. Since 2000, it has become quite common for movie studios to release "unrated" DVD versions of films with MPAA-censored content put back in.

Like all other constitutional freedoms, freedom of speech is more a contested terrain than an absolute principle. The repeal of the fairness doctrine limited the right to reply to television opinions, but the proliferation of new media outlets has expanded media access. The ever increasing cost of purchasing a newspaper, television station, or radio station has limited free speech, but the Internet and new forms of low power radio stations have increased it. What steps the courts of the United States will take to enforce freedom of speech depends somewhat on the identity of the judges appointed and the advocates for clients who appear before them.

Within the U.S., the freedom of speech also varies widely from one state to the next. Of all states, the state of California permits its citizens the broadest possible range of free speech under the state constitution (whose declaration of rights includes a strong affirmative right to free speech in addition to a negative right paralleling the federal prohibition on laws that abridge the freedom of speech). Thanks to the Pruneyard case, California residents are even allowed to engage in free speech on other persons' private property.

In contrast, other states, like Indiana and Tennessee, are renowned for their rather narrow interpretation of the right of free speech. For example, Indiana lawyers have risked disbarment for foolish insinuations which would be ignored (or at worse, would earn a mild reprimand) in a California court.

Attacks on Free Speech

• Some consider the deportation of peace activist Scott Parkin from Australia in September 2005 to have been an attack on free speech, claimed by the federal government to be a risk to national security.
• In Finland, a new copyright was legislated in october 2005, which outlawed communication about certain encoding methods and bypassing them.
• Gunns Limited, a Timber and woodchip product company in Australia (Gunns Website) is sueing 17 individual activists, including Federal Greens Senator Bob Brown, as well as three not-for-profit environmental groups, for over 7.8 million dollars. Gunns claims that the defendants have sullied their reputation and caused them to lose profits, the defendants claim that they are simply protecting the environment. The defendants have become collectively known as the Gunns 20 (Friends of the Gunns 20). It is widely believed that this move is intended to tie up these activists in court procedings, during which time Gunns intend to build a Pulp Mill in northern Tasmania. The move is possibly also intended to scare off other activists.

The Internet

The development of the Internet opened new possibilities for achieving freedom of speech using methods that do not depend on legal measures. Pseudonymity and data havens (such as Freenet) allow free speech, as the technology guarantees that material cannot be removed (censored).

Websites which fall foul of government censors in other countries are often re-hosted on a server in a country with no such restrictions. Given that the United States has in many respects the least restrictive governmental policies in the world on freedom of speech, many of these websites re-host their content on an American server and thus escape censorship while remaining available to their target audience. This is especially the case with neo-nazi and other sites promoting racial hatred, since these are prohibited in a number of European countries.

The Electronic Frontier Foundation (EFF) is an organization dedicated to protecting freedom of speech on the Internet.

The US Government has attempted some regulation of certain acts and speech on the Internet. See also US v. Baker.

Issues raised by involuntary commitment

A small minority has questioned whether involuntary commitment laws, when the diagnosis of mental illness leading, in whole or in part, to the commitment, was made to some degree on the basis of the speech or writings of the committed individual, violate the right of freedom of speech of that individuals, in jurisdictions where that is relevant.

Quotes

• "I disapprove of what you say, but I will defend to the death your right to say it". Commonly attributed to Voltaire (actually written by his biographer, Evelyn Beatrice Hall, writing as S.G. Tallentyre in 1906).
• "...When compared with the suppression of anarchy every other question sinks into insignificance. The anarchist is the enemy of humanity, the enemy of all mankind, and his is a deeper degree of criminality than any other. No immigrant is allowed to come to our shores if he is an anarchist; and no paper published here or abroad should be permitted circulation in this country if it propagates anarchist opinions." Theodore Roosevelt, 1908
• "The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate." US Supreme Court Justice Oliver Wendell Holmes in United States v. Schwimmer (1929).
• "Goebbels was in favor of free speech for views he liked. So was Stalin. If you're in favor of free speech, then you're in favor of freedom of speech precisely for views you despise. Otherwise, you're not in favor of free speech." Noam Chomsky, Manufacturing Consent: Noam Chomsky and the Media (1992).
• "...if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility." John Stuart Mill, On Liberty (1859).
• "In a free state, tongues too should be free." Erasmus, The Education of a Christian Prince (1516).

Related topics

• Censorship
• Copyleft
• Copyright
• Free content
• Freedom of information
• Freedom of religion
• Freedom of the press
• Free software
• Free speech zone
• Free Speech TV
• Propaganda model
• Speakers' Corner
• Verbal offence

Research Resources

• First Amendment Library
• International Freedom of Expression Exchange

External links

• The Speakers' Corner web site
• www.freedom-of-speech.info (German)
• Stanford Encyclopedia of Philosophy entry
• The Thomas Jefferson Center for the Protection of Free Expression
• Organization of American States - Special Rapporteur for Freedom of Expression
• Organization for Security and Cooperation in Europe - Representative on Freedom of the Media
• United Nations - Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
• UNESCO - Division of Freedom of Expressionda:Ytringsfrihed

de:Meinungsfreiheit et:Sõnavabadus es:Libertad de expresión fr:Liberté d'expression he:חופש הביטוי lv:Vārda brīvība nl:Vrijheid van meningsuiting ja:表現の自由 no:Ytringsfrihet nn:Ytringsfridom pl:Wolność słowa simple:Freedom of speech sk:Sloboda slova sv:Yttrandefrihet zh:言論自由

Freedom of speech in the United States is generally protected by the First Amendment to the United States Constitution. However, there are many exceptions to this general rule, including the Miller test for obscenity and greater regulation of so-called commercial speech, such as advertising. Other limitations or regulations include copyright, fighting words, campaign finance laws, slander and some content-neutral laws that affect speech.

In its free speech jurisprudence, the U.S. Supreme Court has favored allowing as much expression as possible. The public policy of the U.S. has been to cultivate a "marketplace of ideas." Rather than let people simmer with rage or wander around with their blind ignorance, it is thought that they should be encouraged to express their ideas and hopefully good ideas will triumph over the bad. Another policy is that allowing criticism of the government, its policies, and its officials will encourage good government, because if a policy is ineffective or an official is corrupt, some activist or journalist will eventually expose everything. This is why people can criticize the government in all kinds of ways in the U.S., with language both fair and foul, and can even advocate unpopular ideas (for example, racism) which most people would find distasteful or against public policy. They cross the line only when they advocate imminent violent action against particular persons (the Brandenburg rule). Finally, yet another policy is to avoid "chilling effects" upon legitimate protected speech by encouraging the development of clear bright-line rules.

See also: Civil liberties in the United States.

History

England

The origin of the First Amendment was undoubtedly a reaction against the restraint of speech and of the press that existed in English society. Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license.

One form of speech that was widely restricted in England was the law of seditious libel that made criticizing of the government a crime. The King was above public criticism and that statements critical of the government were forbidden, according to the English Court of the Star Chamber. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of seditious libel "If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it." Truth was not a defense to seditious libel because the goal was to prevent and punish all condemnation of the government. Professor Zechariah Chaffee said that "the First Amendment was ... intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America."

Colonies

The colonies were mixed on the protection of freedom as record shows. During the time period, there were fewer prosecutions for seditious libel than England, but there were other controls over dissident speech. Professor Levy said that each community "tended to be a tight little island clutching its own respective orthodoxy and ... eager to banish or extralegally punish unwelcome dissidents."

The greatest controls on speech in the colonial period were controls on religious speech to outlaw or otherwise censor speech that was considered blasphemy. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612 a Virginia governor declared the death penalty for denying the Trinity.

The trial of John Peter Zenger in 1735 is most famous for its seditious libel prosecution. Mr. Zenger published criticisms of the Governor of New York. Andrew Hamilton represented Mr. Zenger and argued that truth should be a defense to the crime of seditious libel. The court rejected this argument. However, Mr. Hamilton persuaded the jury to disregard the law and to acquit Zenger; the case is considered a victory for freedom of speech as well as for the theory of jury nullification. It establishes that in the colonial period there was a general public feeling that it was important to allow criticism of public officials.

Early development of First Amendment jurisprudence

Congress in 1798, along with many of the drafters and ratifiers of the Constitution, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame ... or to bring them ... into contempt or disrepute; or to excite against them ... hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States."

The law did however allow truth as a defense and required proof of malicious intent. But this Act of 1798 made the ascertaining of the intent of the framers even more difficult to comprehend. The Federalists under President John Adams aggressively used the law against their rivals, the Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act was repealed, and the Supreme Court never ruled on its constitutionality.

However, in New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964). Not surprisingly, then, Supreme Court cases dealing with freedom of expression focus less on the framers' intent than do cases involving many other constitutional provisions. There is little that can be discerned as to the drafters' views other than their desire to prohibit prior restraints, such as the licensing scheme, and their rejection of the crime of seditious libel. Additionally, technological advances and the advent of the information age have, to some extent, muted the framers' intent in this area.

External link

• First Amendment Library entry on Freedom of Expression (links to all of the Supreme Court's free expression cases)