The Constitution's Freedom Of Speech: Why?

Freedom of speech is a fundamental human right, recognised by the Universal Declaration of Human Rights and international human rights law. The First Amendment to the United States Constitution, adopted in 1791, protects freedom of speech, stating that Congress shall make no law...abridging the freedom of speech. This amendment was one of ten amendments constituting the Bill of Rights, proposed to assuage Anti-Federalist opposition to Constitutional ratification. The right to freedom of speech allows individuals to express their opinions and ideas without fear of censorship or legal sanction, even if those opinions are unpopular or offensive. However, the exact limits of free speech are often debated, and the Supreme Court has struggled to determine what constitutes protected speech.

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Freedom of speech as a human right

Freedom of speech is a fundamental human right and a cornerstone of democratic societies. It is protected by the First Amendment to the US Constitution, which states that "Congress shall make no law...abridging the freedom of speech". This amendment was adopted in 1791, along with nine other amendments that comprise the Bill of Rights, safeguarding civil liberties under US law. The First Amendment also protects freedom of religion, the press, and the right to peaceful assembly, petition, and protest against the government.

The concept of freedom of speech predates the First Amendment. In the 1590s, Edward Coke claimed it as "an ancient custom of Parliament", which was affirmed in the Protestation of 1621. The English Bill of Rights of 1689 enshrined the right of free speech in Parliament, which remains in effect today. The French Declaration of the Rights of Man and of the Citizen, during the French Revolution in 1789, also affirmed freedom of speech as an inalienable right.

Freedom of speech is the right to express opinions and ideas without interference, retaliation, censorship, or legal sanction. This includes spoken and written words, as well as symbolic speech like gestures, clothing, and protests. While it is a fundamental right, it is not absolute. For instance, speech that incites violence or breaks the law is not protected. The US Supreme Court has ruled that governments may enact reasonable time, place, and manner restrictions on speech.

Freedom of speech is recognised as a human right in the Universal Declaration of Human Rights (UDHR) and international human rights law. Article 19 of the UDHR states that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers". This right extends to the internet and other digital mediums.

The protection of free speech is essential for the exchange of ideas, the development of knowledge, and the functioning of democratic societies. It allows individuals to express themselves, participate in public discourse, and hold governments accountable. However, it is a contentious issue, with ongoing debates about its scope and limitations, particularly in the context of private property, social media, and the influence of money in politics.

Freedom of speech in the US Constitution

Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognised as a human right in the Universal Declaration of Human Rights and international human rights law.

The First Amendment to the US Constitution, adopted in 1791, protects freedom of speech, religion, and the press. It also protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political, or religious purposes, as well as the right to protest the government. The First Amendment states that "Congress shall make no law...abridging the freedom of speech". This means that the government cannot restrict speech based on its content, even if the ideas put forth are illogical, offensive, immoral, or hateful.

The US Supreme Court has recognised several categories of speech that are given lesser or no protection by the First Amendment, and has held that governments may enact reasonable time, place, or manner restrictions on speech. For example, the First Amendment does not protect speech that incites people to break the law or commit acts of violence. In the case of Brandenburg v. Ohio, the Supreme Court ruled that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

The right to freedom of speech has been the subject of much litigation, especially with regard to its application in private spaces, such as shopping centres and universities. While universities are not permitted to censor content or punish someone who posts an offensive message, they may restrict speech that defames a specific individual, constitutes a genuine threat or harassment, or is intended and likely to provoke imminent unlawful action.

Freedom of speech in other countries

Freedom of speech is a right preserved in the United Nations Universal Declaration of Human Rights and is formally granted by the laws of most nations. However, the extent to which this right is protected varies across countries.

The US, for example, has a strong culture of free speech, with Americans being more tolerant of free speech than other nationalities. The US Constitution prevents the government from infringing on this right, and Americans are supportive of freedom of the press and the right to use the internet without government censorship. However, it's worth noting that the US ranks quite low in terms of freedom of the press due to the influence of large media groups. Additionally, while there are no blanket protections, people can still be prosecuted for what they say in the US.

Other countries with strong protections for free speech include Sweden, Japan, and Belgium. Sweden has a long history of advancing freedom of the press and free speech, but it has also criminalized defamation and the violation of anti-hate speech clauses. Japan protects freedom of speech in its Constitution, but with certain limitations, such as prohibiting the interruption of a political campaign speech. Belgium, meanwhile, provides a positive right to free speech, which means it grants freedom of speech rather than simply preventing government infringement.

In contrast, some countries have been criticized for suppressing free speech. For example, Hong Kong has arrested pro-democracy activists and journalists under the "Law of the People's Republic of China on Safeguarding National Security." India also has restrictions on free speech, with Section 124A of the Indian Penal Code making any speech or expression that brings contempt towards the government punishable by imprisonment. Countries like North Korea, Eritrea, and Turkmenistan are known for heavily restricting news media freedom.

According to the Global State of Democracy Indices, Denmark, New Zealand, and Ireland topped the 2020 list for freedom of speech, showcasing the variance in expression rights across different global democracies. Additionally, a 2015 Pew survey revealed that countries in the Western Hemisphere, such as Mexico, Canada, Poland, and Spain, tend to be more tolerant of free speech than those in the Eastern Hemisphere.

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Limitations of freedom of speech

The First Amendment to the U.S. Constitution grants freedom of speech to Americans. It states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press". The First Amendment also protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes, as well as the right to protest the government.

However, there are limitations to freedom of speech. The First Amendment does not protect certain categories of speech, which may be restricted. These include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech such as advertising. Defamation that causes harm to a reputation is also not protected as free speech.

The definition of freedom of speech has evolved and been refined by the courts over the past 200 years. Initially, the First Amendment protection was limited to Congressional action, but the courts expanded the definition to prohibit federal, state, and local governments from enacting limitations on freedom of speech or freedom of the press. The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws prohibiting people from criticizing a war, opposing abortion, or advocating for higher taxes are examples of unconstitutional content-based restrictions.

In the educational context, there are limitations on freedom of speech. For example, the Supreme Court has held that students do not shed their constitutional rights at the schoolhouse gate, but there are still restrictions on student speech about drugs, "vulgar and offensive" language, and school-operated newspapers. In Bethel School District #43 v. Fraser, 478 U.S. 675 (1986), the Court held that students could not make obscene speeches at a school-sponsored event. Similarly, in Morse v. Frederick, the Court held that students could not advocate for illegal drug use at a school-sponsored event.

In the political context, the Supreme Court has recognized that political expenditures and contributions could be regulated consistently with the First Amendment if the government could demonstrate a sufficiently important justification. For example, in Buckley v. Valeo (1976), the Court held that the government could constitutionally limit the amount that individuals could contribute to political candidates to reduce the risk of undue influence.

Freedom of speech does not mean that individuals may say whatever they wish, wherever they wish. For example, speech that falsely defames a specific individual, constitutes a genuine threat or harassment, or is intended and likely to provoke imminent unlawful action or otherwise violates the law is not protected.

Freedom of speech in private spaces

Freedom of speech is a principle that upholds an individual's or community's right to express their opinions and ideas without fear of retaliation, censorship, or legal repercussions. The First Amendment to the U.S. Constitution, adopted in 1791, explicitly safeguards freedom of speech, religion, and the press. It also protects the freedom to assemble peacefully and associate with others for various purposes, including social, economic, political, or religious causes, as well as the right to protest against the government.

While the First Amendment guarantees freedom of speech, it does not grant individuals the right to say whatever they want, wherever they want. This freedom primarily applies to government restrictions on speech and does not extend to private entities or individuals. Private property owners are generally not obligated to accommodate speech by others and can restrict certain expressions on their property. However, there are exceptions where private property assumes the characteristics of a public forum, such as in Marsh v. Alabama (1946), where the Supreme Court ruled that a "company town" with all the features of a city, including law enforcement, had to permit the exercise of expressive rights within its boundaries.

The interpretation of "speech" is broad and encompasses spoken and written words, as well as symbolic speech, such as what a person wears, reads, or protests. The Supreme Court has also recognised free speech rights in public spaces like parks, sidewalks, and government property, with certain limitations based on time, place, and manner restrictions. The First Amendment protects offensive, immoral, or hateful speech but does not extend to inciting violence or breaking the law.

The internet and social media platforms have further complicated the landscape of free speech, with courts grappling with the applicability of the First Amendment in cyberspace. While individuals enjoy free speech rights online, private companies like Twitter, Facebook, and Reddit can moderate content and make banning decisions based on their interests or disagreements with users' political views.

In conclusion, while freedom of speech in private spaces is not an absolute right, it is generally understood that private landowners do not assume public obligations unless their property takes on the attributes of a public forum. The line between governmental entities bound by constitutional limitations and private citizens possessing liberty interests remains a key distinction in interpreting freedom of speech in private spaces.

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