The Constitution's Freedom Of Speech: Right Or Wrong?

Freedom of speech is a fundamental right in the United States, protected by the First Amendment of the U.S. Constitution, which states that Congress shall make no law...abridging the freedom of speech. This right is not absolute, however, and is subject to certain restrictions. While the First Amendment protects offensive, immoral, and hateful speech, it does not protect speech deemed to be a true threat or incitement to violence or lawless activity. The Supreme Court has also recognised that governments may impose reasonable time, place, and manner restrictions on speech.

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Freedom of speech and expression

Freedom of speech is considered a fundamental right in the United States, protected by the First Amendment of the U.S. Constitution, which states that "Congress shall make no law [...] 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." This right is also upheld by many state constitutions and state and federal laws. The First Amendment protects even offensive, hateful, or harassing speech, and the burden is on the state to demonstrate any circumstances that justify limiting free speech.

However, this right is not absolute and is subject to certain restrictions. For example, the Supreme Court has ruled that the government can impose limitations on the time, place, and manner of delivery of speech. These restrictions are in place to address legitimate societal concerns, such as preventing disruption to others. Additionally, there are categories of speech that are given lesser protection or no protection by the First Amendment, such as speech that incites illegal activity, true threats, or defamation. The speech of government employees and students in public schools can also be restricted when it conflicts with their status or encourages illegal activities.

The interpretation and enforcement of freedom of speech extend beyond the First Amendment. State constitutional law, state and federal statutory law, and state common law can provide additional protections for speech, press, and expressive association. This includes the protection of corporate speech, as recognised in the Bellotti case, where it was established that the speech being restricted is protected due to its societal significance.

The history of freedom of speech in the U.S. has been shaped by legislative concern over the concentration of economic power and the threat it poses to the expressive freedom of the less powerful. The trial of John Peter Zenger in 1735, which resulted in his acquittal for seditious libel, marked a significant victory for freedom of speech and set a precedent for greater acceptance and tolerance.

The First Amendment

The right to freedom of speech is not absolute, however. While the government cannot restrict expression based on its content or message, there are certain categories of speech that are not protected by the First Amendment, including commercial advertising, defamation, obscenity, and interpersonal threats. Additionally, private organizations such as businesses, colleges, and religious groups are not bound by the same constitutional obligation to uphold freedom of speech.

Limitations to free speech

The First Amendment of the United States Constitution protects the right to freedom of speech, religion, and expression from government interference. It prohibits any laws that establish a national religion, impede the free exercise of religion, abridge freedom of speech, infringe upon freedom of the press, interfere with the right to peaceably assemble, or prohibit citizens from petitioning for a governmental redress of grievances.

Despite the First Amendment's protection of freedom of speech, there are several limitations to free speech. Firstly, the First Amendment does not protect speech that incites imminent lawless action, as seen in Brandenburg v. Ohio (1969). Additionally, speech that is deemed obscene or vulgar is not protected, as ruled in Roth v. United States (1957) and Bethel School District #43 v. Fraser (1986). The Supreme Court has struggled to define "obscenity", but it generally includes pornographic and indecent material.

Another limitation to free speech is when it poses a genuine threat or constitutes harassment. The Supreme Court has defined unprotected harassment as unwelcome conduct based on an individual's protected status that interferes with their educational or employment environment, creating a hostile, intimidating, or abusive atmosphere. Furthermore, true threats of violence directed at a person or group with the intent to cause harm are generally unprotected, as ruled in Wagner v. Simon (1974).

The First Amendment also does not protect commercial speech, such as advertising, or speech that violates intellectual property laws. Additionally, broadcasting rights and laws against counterfeiting currency are not considered infringements of free speech rights.

It is important to note that the limitations to free speech are carefully honed over decades of case law, and there may be misconceptions about what constitutes unprotected speech. While the First Amendment protects offensive speech, it does not allow individuals to say whatever they wish, wherever they wish. For example, universities may restrict speech that defames an individual, threatens, or is likely to provoke unlawful action.

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The Supreme Court's role

The First Amendment to the U.S. Constitution guarantees free speech and freedom of the press. It restricts government action by stating that "Congress shall make no law...abridging the freedom of speech." Over the years, the Supreme Court has played a significant role in interpreting and enforcing these rights.

The Supreme Court has recognised that the federal courts do not have a monopoly over interpreting and enforcing the right to freedom of speech. In Hudgens v. NLRB (1976), the Court clarified that statutory or common law may offer protection against efforts to abridge free expression, even when the First Amendment does not. This was further emphasised in PruneYard Shopping Centre v. Robins, where the Court concluded that state constitutions could provide "rights in expression" beyond those granted by the Federal Constitution.

The Supreme Court has also grappled with defining the boundaries of protected speech under the First Amendment. For example, in Tinker v. Des Moines (1969), the Court upheld the right of students to wear black armbands to school as a form of symbolic speech protected by the First Amendment. In Cohen v. California, the Court allowed the use of certain offensive words and phrases to convey political messages. However, in Joseph Burstyn, Inc. v. Wilson (1952), the Court ruled that obscenity is not protected by the First Amendment.

The distinction between content-based and content-neutral laws has been crucial in free speech cases. Content-based laws, which regulate speech based on its substance, face strict scrutiny, while content-neutral regulations, controlling the time, place, and manner of speech, are reviewed under intermediate scrutiny. In recent years, the Supreme Court has addressed online freedom of expression, particularly regarding social media platforms' content moderation abilities and their potential impact on freedom of expression.

Freedom of speech in schools

The First Amendment of the United States Constitution, ratified on December 15, 1791, protects freedom of speech. It restricts governmental action, stating that "Congress shall make no law...abridging the freedom of speech." Over the years, the Supreme Court has determined which speech is protected under the First Amendment and which is not. For instance, the Supreme Court upheld the constitutionality of the Sedition Act of 1918, an amendment to the Espionage Act of 1917, and struck down a state compulsory flag-salute in public schools as a violation of freedom of speech. The Court has also held that incitement is not protected under the First Amendment, and that such speech constitutes incitement if it directly advocates for lawless activity.

While the First Amendment guarantees freedom of speech, it is not absolute, and there are certain limitations to this right, especially in schools. School officials have wider discretion than other state actors in regulating certain types of speech. For example, they can forbid profane language on campus and punish students for advocating illegal drug use. They can also censor student speech in school publications and censor student speech that is likely to substantially disrupt school operations. Additionally, schools can enforce dress codes, but these codes cannot treat students differently based on gender, force students to conform to sex stereotypes, or censor particular viewpoints.

Students do not lose their right to free speech when they enter school premises. They have the right to speak out, distribute flyers and petitions, and wear clothing that expresses their views, as long as they do not disrupt the functioning of the school or violate content-neutral policies. Courts have upheld students' rights to wear things like anti-war armbands, armbands opposing the right to abortion, and shirts supporting the LGBT community.

While schools can discipline students for missing class, they cannot discipline them more harshly because of the political nature or message behind their actions. The punishment for unexcused absences varies by state, school district, and school, and students facing suspension of 10 days or more have the right to a formal process and can be represented by a lawyer. Additionally, students have the right to speak their minds on social media, and schools cannot punish them for content posted off-campus and outside of school hours that does not relate to school.

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