Freedom of speech in the United States

Freedom of speech in the United States is generally protected by the First Amendment to the United States Constitution. However, there are many exceptions to this general rule, including the Miller test for obscenity and greater regulation of so-called commercial speech, such as advertising. Other limitations or regulations include copyright, fighting words, campaign finance laws, slander and some content-neutral laws that affect speech.

In its free speech jurisprudence, the U.S. Supreme Court has favored allowing as much expression as possible. The public policy of the U.S. has been to cultivate a "marketplace of ideas." Rather than let people simmer with rage or wander around with their blind ignorance, it is thought that they should be encouraged to express their ideas and hopefully good ideas will triumph over the bad. Another policy is that allowing criticism of the government, its policies, and its officials will encourage good government, because if a policy is ineffective or an official is corrupt, some activist or journalist will eventually expose everything. This is why people can criticize the government in all kinds of ways in the U.S., with language both fair and foul, and can even advocate unpopular ideas (for example, racism) which most people would find distasteful or against public policy. They cross the line only when they advocate imminent violent action against particular persons (the Brandenburg rule). Finally, yet another policy is to avoid "chilling effects" upon legitimate protected speech by encouraging the development of clear bright-line rules.

See also: Civil liberties in the United States.

History

England

The origin of the First Amendment was undoubtedly a reaction against the restraint of speech and of the press that existed in English society. Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license.

One form of speech that was widely restricted in England was the law of seditious libel that made criticizing of the government a crime. The King was above public criticism and that statements critical of the government were forbidden, according to the English Court of the Star Chamber. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of seditious libel "If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it." Truth was not a defense to seditious libel because the goal was to prevent and punish all condemnation of the government. Professor Zechariah Chaffee said that "the First Amendment was ... intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America."

Colonies

The colonies were mixed on the protection of freedom as record shows. During the time period, there were fewer prosecutions for seditious libel than England, but there were other controls over dissident speech. Professor Levy said that each community "tended to be a tight little island clutching its own respective orthodoxy and ... eager to banish or extralegally punish unwelcome dissidents."

The greatest controls on speech in the colonial period were controls on religious speech to outlaw or otherwise censor speech that was considered blasphemy. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612 a Virginia governor declared the death penalty for denying the Trinity.

The trial of John Peter Zenger in 1735 is most famous for its seditious libel prosecution. Mr. Zenger published criticisms of the Governor of New York. Andrew Hamilton represented Mr. Zenger and argued that truth should be a defense to the crime of seditious libel. The court rejected this argument. However, Mr. Hamilton persuaded the jury to disregard the law and to acquit Zenger; the case is considered a victory for freedom of speech as well as for the theory of jury nullification. It establishes that in the colonial period there was a general public feeling that it was important to allow criticism of public officials.

Early Development Of First Amendment Jurisprudence

Congress in 1798, along with many of the drafters and ratifiers of the Constitution, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame ... or to bring them ... into contempt or disrepute; or to excite against them ... hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States."

The law did however allow truth as a defense and required proof of malicious intent. But this Act of 1798 made the ascertaining of the intent of the framers even more difficult to comprehend. The Federalists under President John Adams aggressively used the law against their rivals, the Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act was repealed, and the Supreme Court never ruled on its constitutionality.

However, in New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964). Not surprisingly, then, Supreme Court cases dealing with freedom of expression focus less on the framers' intent than do cases involving many other constitutional provisions. There is little that can be discerned as to the drafters' views other than their desire to prohibit prior restraints, such as the licensing scheme, and their rejection of the crime of seditious libel. Additionally, technological advances and the advent of the information age have, to some extent, muted the framers' intent in this area.