American Civil Liberties Union Briefing Paper Number 10
Bill of Rights BICENTENNIAL
FREEDOM OF EXPRESSION
The inhabitants of the North American colonies did not have a legal right
to express opposition to the British government that ruled them.
Nonetheless, throughout the late 1700s, these early Americans did voice
their discontent with the Crown. For example, they strongly denounced
the British parliament's enactment of a series of tax levies to pay off a
large national debt that England incurred in its Seven Years War with
France. In newspaper articles, pamphlets and through boycotts, the
colonists raised what would become their battle cry: "No taxation without
representation!" And in 1773, the people of the Massachusetts Bay Colony
demonstrated their outrage at the tax on tea in a dramatic act of civil
disobedience: the Boston Tea Party.
The colonists also frequently criticized the much-despised local
representatives of the Crown. But they protested at their peril, for the
English common law doctrine of "seditious libel" had been incorporated
into the law of the American colonies. That doctrine permitted
prosecution for "false, scandalous and malicious writing" that had "the
intent to defame or to bring into contempt or disrepute" a private party
or the government. Moreover, the law did not even accommodate the truth
as a defense: In 15th century England, where absolute obedience to the
Crown was considered essential to public safety, to call the king a fool
or predict his demise was a crime punishable by death.
The colonies' most celebrated seditious libel prosecution was that of
John Peter Zenger in 1735. Zenger, publisher of the _New York Weekly
Journal_, had printed a series of scathing criticisms of New York's
colonial governor. Although the law was against Zenger, a jury found him
not guilty -- in effect, nullifying the law and expressing both the
jurors' contempt for British rule and their support for a free and
unfettered press. After Zenger's acquittal, the British authorities
abandoned seditious libel prosecutions in the colonies, having concluded
that such prosecutions were no longer an effective tool of repression.
The stage was set for the birth of the First Amendment, which formally
recognized the natural and inalienable right of Americans to think and
speak freely: "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."
Following are the ACLU's answers to questions we have been asked by
members of the public about the history of the First Amendment and the
freedoms it guarantees.
What were the philosophical underpinnings of the First Amendment's
James Madison, Thomas Jefferson and the other framers of the Bill of
Rights were products of the Age of Enlightenment. They eschewed the
superstitions and intolerance of earlier times, believing instead in the
power of reason, the search for truth, and the perfectability of human
society. Freedom of inquiry and liberty of expression were clearly
essential to the process of debate and discovery that they viewed as
indispensable to the achievement of human progress.
Questioning of authority was also a central theme of the Enlightenment
era. The philosophers of the day well understood the tendency of
government to perpetuate itself by enacting repressive measures to
silence those opposed to its conduct. According to one libertarian
thinker of the period, a citizen had the right to "say everything which
his passions suggest; he may employ all his time, and all his
talents...to do so, in speaking against the government matters that are
false, scandalous and malicious," and yet he should be "safe within the
sanctuary of the press." Speech was regarded as beyond the reach of
criminal sanctions; only "overt acts" could be punished.
Given the primacy that the framers assigned to the values the First
Amendment embodies, it is fitting that freedom of expression should be
the first freedom cited in the Bill of Rights.
Why does freedom of expression play such a critical role in our
There are four primary reasons why freedom of expression, which
encompasses speech, the press, assembly and petition, is essential to a
First, freedom of expression is the foundation of self-fulfillment.
Self-expression enables an individual to realize his or her full
potential as a human being. The right of individuals to express their
thoughts, desires and aspirations, and to communicate freely with others,
affirms the dignity and worth of each and every member of society. Thus,
freedom of expression is an end in itself and should not be subordinated
to any other goals of society.
Second, freedom of expression is vital to the attainment and advancement
of knowledge. The eminent 19th century civil libertarian, John Stuart
Mill, contended that enlightened judgment is possible only if one
considers all facts and ideas, from whatever source, and tests one's own
conclusions against opposing views. But the right to express oneself is
not conditioned on the content of one's views, which may be true or
false, "good" or "bad," socially useful or harmful. All points of view
should be represented in the "marketplace of ideas" so that society can
benefit from debate about their worth.
Third, freedom of expression is necessary to our system of
self-government. If the American people are to be truly sovereign, the
masters of their fate and of their elected government, they must be
well-informed. They must have access to all information, ideas and
points of view. The precondition for a free society is an informed and
enlightened citizenry. Tyrannies thrive on mass ignorance.
Fourth, freedom of expression provides a "check" against possible
government corruption and excess, which seem to be permanent features of
the human condition.
Restrictions on freedom of speech always authorize the government to
decide how, and against whom, the restrictions should apply. The more
authority the government has, the more it will use that authority to
suppress unpopular minorities, criticism and dissent. Because freedom of
expression is so basic to a free society, the ACLU believes that it
should _never_ be abridged by the government.
What was the early history of the First Amendment and freedom of expression?
The First Amendment's early years were not entirely auspicious. Although
the early Americans enjoyed great freedom compared to citizens of other
nations, even the Constitution's framers, once in power, could not resist
the strong temptation to circumvent the First Amendment's clear mandate.
In 1798, seven years after the First Amendment's adoption, Congress, over
the objections of James Madison and Thomas Jefferson, passed the Alien
and Sedition Act. Ironically, this Act incorporated much of the English
law of seditious libel (indeed, seditious libel remained a part of our
law for the next 171 years) and was used by the dominant Federalist Party
to prosecute a number of prominent Republican newspaper editors. But
none of those cases reached the Supreme Court.
Throughout the 19th century and much of the 20th, federal and state
sedition, criminal anarchy and criminal conspiracy laws were used
repeatedly to suppress expression by slavery abolitionists, religious
minorities, early feminists, labor organizers, pacifists and left-wing
political radicals. For example, prior to the Civil War every Southern
state passed laws limiting speech in an attempt to stifle criticism of
slavery. In Virginia, anyone who "by speaking or writing maintains that
owners have no right of property in slaves" was subject to a one-year
In 1912, feminist Margaret Sanger was arrested for giving a lecture on
birth control. Trade union meetings were banned and courts routinely
granted employers' requests for injunctions that prohibited strikes and
other labor protests. Protest against U. S. entry into World War I was
widely suppressed, and dissenters were jailed for their pronouncements
and writings. In the early 1920s, many states outlawed the display of
red or black flags, symbols of communism and anarchism. In 1923, author
Upton Sinclair was arrested for trying to read the First Amendment at a
union rally. Many people were arrested merely for membership in groups
regarded as radical by the government. It was in response to the
excesses of this period that the ACLU was born in 1920.
How did the courts respond to First Amendment violations?
The lower courts were almost universally hostile to the First Amendment
rights of political minorities. However, free speech issues did not
reach the Supreme Court until 1919. That year, the Court dealt with free
speech for the first time in the case of _Schenck v. U.S._ Charles T.
Schenck, a member of the Socialist Party, had been convicted of violating
the Espionage Act for mailing anti-war leaflets to draft-age men during
World War I. The Supreme Court unanimously upheld his conviction. The
prevailing legal view at the time was that any speech that had a
"tendency" to cause a violation of law could be punished.
The _Schenck_ case was quickly followed by others that ended in decisions
equally contemptuous of First Amendment freedoms. Among them was the case
of Jacob Abrams, convicted under the Sedition Act of 1918 for
distributing leaflets that criticized the American military. However,
even though the Supreme Court upheld Abrams' conviction, the decision in
his case was a watershed: Justices Oliver Wendell Holmes and Louis
Brandeis dissented, stating that speech could not be punished unless it
presented "a clear and present danger" of imminent harm. The
Holmes-Brandeis dissent marked the beginning of modern First Amendment
The Supreme Court declared the inviolability of First Amendment rights
for the first time in 1925 in _Gitlow v. New York_, a case that
challenged the conviction of a communist revolutionary under New York's
Criminal Anarchy law. Although the Court affirmed the conviction, it
announced that freedom of speech and press were protected by the First
Amendment from federal encroachment, _and_ "are among the fundamental
personal rights and 'liberties' protected by the due process clause of
the Fourteenth Amendment from impairment by the states." This holding
paved the way for Yetta Stromberg to prevail, six years later, in an
appeal of her conviction under a California law that made it a crime to
publicly salute a red flag -- the symbol of revolution.
Thereafter, the right to freedom of expression became more secure -- that
is, up until the advent of McCarthyism in the 1950s. During this second
"red scare," the Supreme Court weakened the clear and present danger test
by holding that speakers could be punished if they advocated overthrowing
the government, no matter how remote the danger of such an occurrence
might be. Under this new test, many political activists were prosecuted
and jailed for advocating communist revolution. Laws that required
people to sign loyalty oaths, swearing they were not members of any
subversive organizations, were also upheld and not reversed until 1967.
Finally, in the 1969 case of _Brandenberg v. Ohio_, the Supreme Court
struck down the conviction of a Ku Klux Klan member under a criminal
syndicalism law and established a new standard: Speech may not be
suppressed or punished unless it is intended to produce "imminent lawless
action" and it is "likely to produce such action." Otherwise, the First
Amendment protects even speech that advocates violence. The
_Brandenberg_ Test is the law today.
What forms of expression are protected by the First Amendment?
In addition to protecting "pure speech," expressed in demonstrations,
rallies, picketing, leaflets, etc., the First Amendment also protects
"symbolic speech" -- that is, nonverbal expression whose main purpose is
to communicate ideas. In the 1969 case of _Tinker v. Des Moines
Independent Community School District_, the Supreme Court recognized the
right of high school students to protest the Vietnam War by wearing black
armbands. In 1989 and again in 1990, the Court upheld the right of an
individual to burn the American flag in public as an expression of
disagreement with government policies. Other examples of protected
expression include images in works of art, slogans or statements on
T-shirts, "fashion statements" that incorporate symbols and/or written
slogans or declarations, music lyrics and theatrical performances.
As well as protecting a free "marketplace of ideas" within our nation,
the First Amendment also protects free trade in ideas across U. S.
borders (although the law in this area is less well-defined). That
protection encompasses both the right of Americans to travel and
disseminate their ideas abroad, and their right to receive information
from other countries -- in other words, their right to know. As Justice
William J. Brennan, Jr. once observed, "The right to receive publications
is a fundamental right...It would be a barren marketplace of ideas that
had only sellers and no buyers."
Can speech be curtailed if it is thought to jeopardize national security?
At several points in our history, particularly during wartime, the
government has sought to limit speech in the interest of "national
security," a vague term that, if construed too broadly, can be used to
justify the suppression of information vital to public discourse.
The ongoing controversy that surrounds competing claims of national
security and freedom of expression came to a head in 1971 in the
_Pentagon Papers_ case. _The New York Times_ obtained a copy of, and
published excerpts from, the so-called Pentagon Papers, a voluminous
secret history and analysis of the nation's military involvement in
Vietnam. When the _Times_ ignored the government's demand that it halt
such publication in the interest of national security, the newspaper was
enjoined from continuing to publish portions of the document. Two weeks
later, on expedited appeal, the Supreme Court ruled that the government
could not, through "prior restraint," block publication of any material
unless it could prove that the material would "surely" result in "direct,
immediate, and irreparable" harm to the nation. Since the government had
not met its burden of proof, the _Times_ was free to continue the
While the Court's decision represented a victory for freedom of speech
and press, it did strike an ominous note by tacitly accepting a national
security exception to the First Amendment's ban on prior restraint. And
in subsequent years, the Court upheld the government's national security
claims in several cases involving former CIA agents who had written their
The ACLU believes that national security, like all government interests,
must be served only in ways that are consistent with our tradition of
respect for individual rights.
Why should racists and other hate-mongers, or those espousing anti-democratic
political doctrines, have free speech rights?
The Constitution does not authorize the government to assess the content
of speech and then curtail the speech it judges to be irresponsible or
wrong. If the government had such power, we would all be in danger. All
people within the borders of the United States have the right to express
themselves freely, even, in the words of Justice Felix Frankfurter, if
they "speak foolishly and without moderation." In a society of laws, the
laws must apply to everyone.
The ACLU's defense of the free speech rights of groups such as the Ku
Klux Klan and the American Nazi Party has often stirred controversy and
drawn criticism. But popular and palatable ideas do not need protection
from government suppression; only unpopular and offensive doctrines do.
As one federal judge has put it, our toleration of hateful speech is "the
best protection we have against any Nazi-type regime in this country."
The Supreme Court has consistently rejected the notion that speech can be
punished because it offends some people's sensibilities, and has
generally invalidated statutes and practices that penalize expression
based on content. The Court has also taken a dim view of
breach-of-the-peace statutes when applied to expressive conduct. In the
1949 case of _Terminiello v. Chicago_, the Court struck down the
disorderly conduct conviction of an anti-Semitic Catholic priest
(suspended by the church for his views), who had provoked a violent
confrontation when he denounced Jewish people at a political rally. The
Court's decision, written by Justice William O. Douglas, stated: "The
function of free speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when it invites a
condition of unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger."
Can free speech be limited in any way?
The government may place "time, place and manner" restrictions on speech
as long as they are "reasonable." For example, requiring people to obtain
a permit to hold a meeting in a public building, or to conduct a
demonstration that may interfere with traffic, constitutes a justifiable
But restrictions that are overly burdensome violate the First Amendment.
For example, during the 1960s, officials in Southern cities frequently
required civil rights activists to apply for permits in order to hold
demonstrations, and then granted or denied the permits arbitrarily.
Thus, in the 1969 case of _Shuttlesworth v. Birmingham_, the Supreme
Court struck down such licensing schemes as unconstitutional. Similarly,
in 1977, the Court ruled that the local government's requirement that
members of the American Nazi Party post $350,000 in insurance in order to
hold a march and rally in Skokie, Illinois was an unconstitutional
infringement on the group's First Amendment rights. Insurance
requirements were also regularly used in the South to repress civil
Are any forms of expression _not_ protected by the First Amendment?
The Supreme Court has established several limited exceptions to the First
FIGHTING WORDS: In the 1942 case of _Chaplinsky v.New Hampshire_, the
Supreme Court held that so-called "fighting words...which by their very
utterance inflict injury or tend to incite an immediate breach of the
peace" are not protected under the First Amendment and can be punished.
The Court based its decision on the concept that such utterances are of
"slight social value as a step to truth."
LIBEL: In the 1964 case of _New York Times Co. v. Sullivan_, the Supreme
Court held, in a groundbreaking decision, that defamatory falsehoods
published about public officials are not protected by the First Amendment
and can be punished if the offended official can prove that his/her
accuser published the falsehoods with "actual malice" -- that is, with
"knowledge that the statement was false or with reckless disregard of
whether it was false or not." While the Court's decision addressed a
particular type of common law libel, other kinds of "libelous statements"
are also punishable.
COMMERCIAL SPEECH: In the 1976 case of _Virginia Pharmacy Board v.
Virginia Citizens Consumer Council_, the Supreme Court struck down a
state ban on prescription drug advertising on First Amendment grounds.
However, commercial speech -- which includes advertising, financial and
credit reports, and the like -- still has far less First Amendment
protection than other speech. Generally, it can be banned if it is, on
the whole, misleading or takes undue advantage of its audience.
OBSCENITY: "Obscene" material has historically been excluded from First
Amendment protection, which has led to the official banning of such
classics as James Joyce's _Ulysses_ and D.H. Lawrence's _Lady
Chatterley's Lover_, as well as the criminal prosecution of countless
publishers, book distributors, storekeepers, film distributors and
artists. But in the 1973 case of _Miller v. California_, the Court
re-examined the issue and established a standard for determining whether
material is obscene. The Court ruled that material is legally obscene
if: (1) the average person, applying contemporary community standards,
would conclude that the work, taken as a whole, appeals to prurient
interests; (2) it depicts sexually explicit conduct, specifically defined
by law, in a patently offensive manner; and (3) it lacks serious
literary, artistic, political or scientific value. The _Miller_ test is
still the law today.
Unfortunately, the Supreme Court's longstanding unwillingness to strike
down all obscenity laws as unconstitutional infringements on freedom of
expression has allowed censorship to flourish at various times in our
history because of public officials' tendency to apply the Court's narrow
limits in overbroad ways. This remains a problem with all of the limited
exceptions to the First Amendment.
Is freedom of expression in danger today?
The right to freedom of expression is being severely tested today, just as
it has been throughout the 200-year history of the Bill of Rights.
Governments by nature are always seeking to expand their powers beyond
proscribed boundaries, the government of the United States being no
exception. And since the right to free expression is not absolute, it
must be constantly protected against official depredations.
Today, artistic expression is under attack, as some groups of citizens
seek to impose their morality on the rest of society. Book censorship in
the public schools, mandatory record labeling, as well as obscenity
prosecutions of rap singers, record distributors and museum directors,
are all manifestations of suppression efforts. Artists, performers and
authors now occupy the same vulnerable position that political radicals
did in the 1950s.
If the past two centuries of struggle to preserve freedom of expression
have taught us anything, it is that the first target of government
suppression is never the last. Whenever government gains the power to
decide who can speak and what they can say, the First Amendment rights of
all of us are in danger of being violated. But when all people are
allowed to express their views and ideas, the principles of democracy and
liberty are enhanced.
A C L U
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