Eleanor Finch
The question of whether we should restrict constitutionally protected speech is a highly debated topic. Some argue that speech codes prevent structural violence and create equality, while others counter that it is speech codes themselves that cause inequality. The pro side of the debate must defend all constitutionally protected speech in universities without restrictions, while the con side can provide one example of something that should be restricted. Both sides have presented strong arguments, with the pro side citing evidence from the ACLU and the constitution, and the con side offering a moral and logical standpoint. The debate remains unresolved, with no clear winner.
| Characteristics | Values |
|---|---|
| Pro | Constitutionally protected speech should not be restricted |
| Pro | ACLU evidence supports this |
| Pro | Speech codes cause inequality, not speech |
| Con | Speech codes prevent structural violence and create equality |
| Con | One example of something that should be restricted is enough to win the debate |
| Con | Pro's arguments are insufficiently explained |
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What You'll Learn
Political speech
However, there are also valid arguments in favour of restricting certain types of political speech. For example, censorship can be used to protect people from harmful content such as hate speech or misinformation. Age-based censorship, for instance, aims to prevent young audiences from being exposed to explicit material that may be inappropriate or harmful, such as violence or sexual content.
Yet, the line between protecting people from harmful content and controlling public discourse is a fine one. Restricting political speech can limit the free flow of dialogue and impede the democratic exchange of dissenting ideas and opinions. This can create echo chambers that only tolerate certain perspectives, narrowing the space for constructive arguments. Furthermore, censorship can be used to distort the truth and control people's perceptions, influencing their beliefs to favour a particular agenda.
Ultimately, the debate over restricting political speech centres around finding a balance between protecting society from harmful content and preserving freedom of expression. It is a complex issue that requires careful consideration of the potential benefits and drawbacks of censorship.
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Commercial speech
> Congress shall make no law … abridging the freedom of speech.
This protects against the federal government’s interference with the freedom of speech, and the same prohibition applies to the states (and localities) through the Fourteenth Amendment. The original rationale behind this clause was to protect the free exchange of ideas to enable participation in a representative democracy.
In 1980, the Court established the standard for analysing the constitutionality of commercial speech restrictions in *Central Hudson Gas & Electric Corp. v. Public Service Commission of New York*. In this case, the Court reviewed a New York state public service commission policy prohibiting all utility companies’ promotional ads encouraging the use of electricity. The Court held that restrictions of commercial speech are subject to a four-element intermediate scrutiny.
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Incitement
The First Amendment to the US Constitution protects almost every bit of speech that we can engage in. However, there are a few areas where speech crosses the line into something that’s considered violent or criminal. One of these areas is incitement.
In the early 20th century, incitement was determined by the "clear and present danger" standard established in Schenck v. United States (1919). In this case, Justice Oliver Wendell Holmes Jr. observed that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." This means that speech that advocates for the use of force is unprotected when it is directed at inciting or producing imminent lawless action and is likely to do so.
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Obscenity
The question of whether obscenity should be restricted or not has been a topic of debate for many years. In Roth v. United States, the Court held that the First Amendment didn't protect obscenity. The Court recognised that the First Amendment language doesn't place conditions on speech and press rights. However, it was decided that this doesn't mean that everything spoken or conveyed is protected. The Court explained that the First Amendment protects expression with even the smallest amount of social importance. Obscenity, however, was deemed to be completely without social importance.
Historically, all or nearly all the states that ratified the First Amendment had laws criminalising profanity or blasphemy. This history was deemed to demonstrate that obscenity was outside the protection intended for speech and press. The Court created the following test for obscenity: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole".
However, some argue that the Constitution protects the advocacy of opinions that may be contrary to the moral standards, religious precepts, and legal code of its citizenry. It protects the advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax.
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Fighting words
The 'fighting words' doctrine is a limitation to freedom of speech as protected by the First Amendment to the United States Constitution. In 1942, the U.S. Supreme Court established the doctrine by a 9–0 decision in *Chaplinsky v. New Hampshire*. The case involved a Jehovah's Witness, Walter Chaplinsky, who was arrested after calling a New Hampshire town marshal a "damned racketeer" and "a damned fascist". The Court defined fighting words as those that "by their very utterance inflict injury or tend to incite an immediate breach of the peace". In other words, fighting words are those that cause violence by saying them.
Courts decide if words are fighting words by looking at the whole situation. For example, fighting words generally mean words said to someone face-to-face in a way that the average person would react to with violence. Using curse words or an angry tone alone are not enough to make an outburst fighting words. Using racial slurs may or may not be fighting words, depending on the context. In weighing if something someone said is fighting words, courts will consider whether there was any other accompanying behaviour.
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Frequently asked questions
No, we should not restrict constitutionally protected speech. Speech codes cause inequality, not speech.
Speech codes can prevent structural violence and create equality.
Speech codes can cause inequality.
