Freedom of speech is arguably the most important individual right Americans possess. But like many of the freedoms contained in the First Amendment to the Constitution, freedom of speech is not defined with precision and application to individuals and institutions. As a result, the federal and state courts have often provided interpretations of what freedom of speech means and how it can be properly implemented in specific political, economic, social and cultural circumstances. As we will see from important court cases in American jurisprudence, freedom of speech is not just about the spoken word, but also public actions, modes of personal expression, and challenges to established civic activities.
As a result of the lack of specificity related to freedom of speech, judges and courts in general have provided guidance on how best to define this critical right by setting standards of behavior and developing ways of properly applying speech to everyday life. One of the first of such judicial guidance came from Justice Oliver Wendell Holmes who sought to place limits on certain speech that created a “clear and present danger” to the political and social system. In the 1919 case Schenck v. United States, Holmes used the analogy of “shouting fire in a crowded theater” as an example of excessive freedom of speech that required limitations to prevent a “clear and present danger.”
While this standard of freedom of speech stood the test of time, as the character of our country became more complex, the courts were called upon to respond to freedom of speech in other ways. In the 1940s, controversy over school requirements to salute the flag centered around freedom of speech. In a case out of Pennsylvania, the Supreme Court in Millersville School District v. Gobitis said that the school board had the right to require saluting the flag even though the student Billy Gobitis was a Jehovah’s Witness and saw the practices as violating his freedom of expression. Three years later in a case in West Virginia the court invalidated the Gobitis decision and stated that requiring saluting the flag was a violation of freedom of speech protected by the First Amendment.
Freedom of speech also was connected to the issue of flag burning. In a 1989 case out of Texas where a protestor outside the Republican National Convention in Dallas burned the flag, the Supreme Court stated that flag burning no matter how reprehensible to many Americans was a form a “symbolic speech” that was protected by the First Amendment and that state laws prohibiting flag desecration was unconstitutional. Justice Brennan writing for the 5-4 majority stated that the government could not prohibit the expression of an idea simply because it is offensive or disagreeable.
Freedom of speech also entered the controversial area of pornography and erotic movies and literature that were deemed obscene and inappropriate by local and state governments. In a case out of California where a publisher was prosecuted for distributing obscene materials, the Supreme Court judges (who spent considerable time watching pornographic movies and reading erotic material) established a legal test that defined obscenity as “material lacking serious literary, artistic, political or scientific value and needing to appeal to the prurient interest which depicted sexual or excretory functions offensively.” The decision eventually became a standard used by state and local governments to determine what limits could be placed on obscene material. While the standard expressed by the Supreme Court was defined in great detail, in most cases state and local laws that prohibited the distribution of obscene material were ineffective in limiting a broad range of pornographic movies and other materials.
Freedom of speech also entered the world of politics and particularly campaign contributions to candidates for public office. Financial contributions to candidates have always been viewed with suspicion and the subject of regular reform efforts. Charges of bribery, influence peddling, questionable methods of money transfers to candidates have created efforts to establish standards of acceptable practice and accountability. But in a landmark case in 2010 campaign contributions entered a new phase as the use of freedom of speech was employed to justify the movement of money to candidates. In the Citizens Unites v. The Federal Election Commission, the Supreme Court reversed campaign finance restrictions that allowed corporations and outside groups to spend unlimited amounts of money on elections. The Court based its decision on the view that limiting the spending of outside groups violated free speech. In short, the Court claimed that writing a check, a big check by a corporation or major donor, was a form of free speech, not spoken speech but written speech on a bank document. The Citizens United case has been the foundation for today’s explosion of campaign spending, especially by corporations and wealthy donors.
Finally, the issue of hate speech and freedom of speech has received a considerable level of interest in recent years. While hate speech is protected as free speech, individual states like California have passed laws that are punishable by jail time. Hate speech has also been connected to cross-burning activities by fringe racist groups. In Virginia the Supreme Court declared as unconstitutional a law against cross-burning because it failed to show how the action was intended to intimidate a particular group. In most instances, however, the Supreme Court standard set by the People v. Cohen case out of California stated that offensive language is permitted as free speech even if it is not “polite” as long as it does not incite violence. Cohen wore a shirt with the statement “F**k the Draft" and was initially convicted under California Penal Code 415. The Supreme Court overturned the conviction.
As you can see, free speech is more than just the spoken word, although for most Americans we hold dear that ability to speak our mind on politics, shout at those we disagree with, and express our views on topics and issues that are important to us. Increasingly, however, freedom of speech has moved beyond the “polite” stage and moved to words of anger and threats. A return to civil discourse and calm exchange of opinions would be a welcome development, but sadly we Americans are addicted to defining free speech as yelling insults at each other and using words that hurt and defame. A return to “polite” would be a welcome change of pace.