Freedom of Speech

From RationalWiki

Freedom of speech is the concept that any person can communicate without fear of legal repercussions or censorship. It is a concept integral to liberal democracies, and the limiting of this right is essential to totalitarian regimes. This right is guaranteed under Article 17 of the Universal Declaration of Human Rights, and in the First Amendment to the United States Constitution/Bill of Rights.

Contents 1 History and philosophy: the American tradition 1.1 Seditious advocacy 1.2 Obscenity and profanity 1.3 "Low value" speech 1.4 Content-Neutral Restrictions 1.5 Incidental effects issues 2 Limits of freedom of speech 2.1 Free speech in the public discourse 2.2 Comparative limits on other topics 3 See also 4 References and notes

[edit] History and philosophy: the American tradition

In the United States of America, the concept of "freedom of speech" is deeply rooted in the national consciousness, and not easily assailed. Built on a series of formalistic guidelines, the basic touchstone of the entire construct is the idea of "clear and present danger" - unless a speech presents the same, it is considered "protected." What exactly counts as a clear and present danger, is another area entirely.

Interestingly, the idea of "free speech" is almost entirely a judge-made doctrine; that is to say originalism and textualism have no real pertinence on free speech. Consider the text:

“

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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

”

It is absurdly simple! Congress cannot "abridge" speech: read plainly, the amendment seems to grant carte blanche to anyone to say whatever they please on American soil. Necessarily, restraints must be "read into" the Amendment; after all, the Constitution is not a suicide pact.^[1] What were those restraints, judging from the viewpoint of the framers of the amendment? This inquiry is also thoroughly unhelpful; at different points, the founders split on whether certain speech acts were "protected," or not. In short, the originalist inquiry goes both ways. Clearly, the first amendment then becomes an exercise in judicious line-drawing, resulting in the below complex structure.

Also, eating the moon is not protected speech.^[2]

[edit] Seditious advocacy

Seditious advocacy is the support of policies antithetical to the government, or the speech act of hindering a government project. For example, protesting outside of an army recruiting station is seditious advocacy: it actively impedes the government's efforts to recruit and fight a war. However, encouraging married men to sleep around might also be "seditious advocacy" in the sense that it encourages lawlessness. Similarly, wiring the plans of the Pentagon to Osama Bin Laden would surely be seditious advocacy. Where should the line be drawn?

Seditious advocacy was historically unprotected speech; however, the Founders' generation fought vigorously on this issue.^[3] After a tumultuous experience in the First World War, the following formulation emerged: unless speech presents a clear and present danger, the speech act is protected.^[4] The danger, it is thought, must be sufficiently large to trigger dropping the amendment's protective shield; mere flaunting of the speed limit, while creating a danger of speed violations, is probably protected speech. Further, the speaker encouraging lawlessness must have specific intent to expressly incite lawnessness: he must not merely be arguing in favor of lawnessness as an abstract idea, but must actively be encouraging an illegal act, with intent to do so.

In short, if a speaker (1) intends to promote lawnessness, (2) expressly incites the same, and (3) the lawlessness provoked presents a (grave and) clear and present danger to government interests, the speech act is not protected and may be prosecuted. Otherwise, the Constitution presumptively shields a speaker for his actions. This is a large shield indeed, and has stayed strong for at least 30 years. In fact, it is considered the cornerstone of American free speech jurisprudence.

[edit] Obscenity and profanity

Traditionally, the government held power to prohibit the obscene and the profane. As recently as 1800, it was considered acceptable for the state to punish blasphemy. Needless to say, things have changed a lot.

• Privacy interests:
• The locality rule:
• Underlying illegality:

[edit] "Low value" speech

[edit] Content-Neutral Restrictions

"Content-neutral" doctrine stands for the principle that the government can regulate speech, within reason, so long as it does not take a side in an intellectual debate - that is, so long as it does not take a position as to content. Thus, American governments traditionally enjoy wide discretion to regulate the "time, place, or manner" of speech.

The rule of the public forum is an outgrowth of "content-neutral" doctrine: under this rule, the government is generally powerless to regulate speech in traditional public fora such as streets and parks, since these areas are property held in the public trust for political use.^[5] However, the public forum rule has important qualifying rules:

• In a "limited designated forum" - that is, government property opened to public use for a particular purpose only - subject matter regulations are appropriate. Thus, a city may forbid obscene speech and advertisement in publicly owned transportation vehicles, such as streetcards.^[6]
• Similarly, public school facilities opened to the public as after school meeting places are limited-designated fora.^[7] Thus, subject-matter regulation is appropriate in administering public school space requests. However, discriminating against religious speech, while seemingly a subject matter regulation, is apparently a forbidden viewpoint regulation: thus, public schools cannot exclude religious groups from using their facilities after school.^[8] If that sounds absurd, it's because it is.

At the extremes, though, the general acceptance of "content-neutral" regulation can become the exception which swallows the rule. During the Bush presidency, a popular "time/place/manner" restriction, especially used to regulate protesters during Republican rallies, is the confinement of protesters to "free speech zones" isolated geographically from the site of the event being protested. While this is, technically, a place and manner regulation, the function of the rule is to eviscerate the right to speech: government power to reasonably regulate speech cannot be allowed to confine speech to the corner of the world where it is least effective, after all.

[edit] Incidental effects issues

As a general rule, when an act is proscribed by a law for general application, its prohibition cannot be challenged because of the incidental effects of the law on speech activities. This is to say that you can't shoot someone, then claim it's "free speech": if laws against murder incidentally burden free speech rights, the effect is outweighed by the necessity of the rule of general application.

The rule that comes from U.S. v. O'Brien, on this matter, is that where the government's interest in a law of general application is unrelated to the suppression of speech, the general law cannot be challenged because it chills speech. Thus, a law banning flag burning as desecration would be unconstitutional; however, a law banning outdoor fires, and incidentally touching upon flag burning, would be constitutional.

[edit] Limits of freedom of speech

[edit] Free speech in the public discourse

The general public's understanding of the protections of free speech afforded in the United States by the Constitution are generally broader than the protections actually are. Conservatives defend their pundits by stating that "it's a free country" - pundits can say what they want, without being censored for their beliefs.^[9] Ditto, apparently scientists paid to produce science can defend their poor science on the grounds that "it's a free country," and they can say what they want to say.^[10] Technically, yes. The right to free speech is guaranteed by the Constitution. But, it is guaranteed vis a vis the government - not necessarily vis a vis private individuals. While individuals have a high level of protection of their speech against government censorship, these high levels are triggered only by state action - that is, the government's actual use of power. On the contrary, just as in discrimination law, lower levels of protection attend non-state based limitations on speech. While the Constitution prevents the government from punishing you for your speech (generally unless such speech presents a "clear and present danger"^[11], the Constitution also cannot protect you from a private organization censoring your speech by taking some private, non-state action against you.^[12]

So while it's a free country, and pundits may be pundits, and say what they will, they need not be surprised, and may not claim the first amendment as a protection, when they are fired for making ridiculous statements. One must also note, too, that the assertion to the contrary by conservative networks only triggers when one of their own gets in trouble - when someone else starts to say something controversial, all of a sudden, they seem to back down.^{[13] [14]}

[edit] Comparative limits on other topics

The limits of free speech depend on the values and leaders of a society. Most nations have copyright and patent laws preventing the dissemination of stolen ideas. Many countries also have libel and slander laws of varying strengths. For example, in the UK, if sued, one must prove that you haven't slandered someone. In the U.S. the burden falls on the plaintiff. If speech is judged to cause an imminent threat, it is also sometimes regulated. Obscenity and hate speech are also areas of active debate.

In the U.S., the default position is usually in favor of free speech. For example, speaking or writing ill of a public figure is not slander/libel, unless it is an intentional lie meant to cause harm.^[15] Speaking ill of a book, website, or other publication is also not libel, as it expresses an opinion.

[edit] See also

• Freedom
• Libertarianism

[edit] References and notes

1. ↑ Justice Jackson, in Terminiello v. Chicago.
2. ↑ Earth v. Giant Space Iguana, cited in Zoidberg v. Earth (Ginsburg, J., dissenting).
3. ↑ See the Alien and Sedition Acts.
4. ↑ Brandenburg v. Ohio.
5. ↑ Hague v. CIO.
6. ↑ Lehman v. City of Shaker Heights.
7. ↑ Rosenberger.
8. ↑ Lamb's Chapel.
9. ↑ Newsbusters, "NBC's Today Asks, Should Coulter Be 'Taken Off the Airwaves Permanently'?", here.
10. ↑ Ben Stein thinks so. See our article on Expelled, or his website.
11. ↑ Compare Schenck v. U.S., 249 U.S. 47 (1919), with Brandenburg v. Ohio.
12. ↑ Generally. There are always exceptions, but the above ref'd are not any such exception.
13. ↑ Newsbusters, "Olbermann Likens Gingrich to Nazis, Defends Terrorists’ First Amendment Rights," here.
14. ↑ Remember Jerry Falwell suing Larry Flynt & Hustler over a little joke? Where was the "it's a free country" cry from the right, then? Now, this is a different matter because the Constitution does actually protect your ability to insult public figures... at a very high level.
15. ↑ See New York Times Co. v. Sullivan, and Hustler Magazine v. Falwell.