Freedom of Speech

The First Amendment to the Constitution guarantees freedom of speech, press, assembly and petition. Well aware of the fact that a democracy is dependent on free exchange of ideas, the framers included these rights in the first amendment. Historically, one of the most volatile areas of constitutional interpretation has been in the interpretation of the first amendment’s mandates that “congress shall make no laws...abridging the freedom of speech or of press.” Like the establishment and free exercise clauses of the first amendments, the speech and press clauses have not been interpreted as absolute bans against government regulation. Over time, the Supreme Court has determined what the government can and cannot regulate. In some cases the Supreme Court has ruled against prior restraint, and protected symbolic speech and hate speech as long as it does not become action. In other cases, the Supreme Court has ruled that the freedom of speech does not include libel, fighting words, and obscenity.

To protect the cornerstone of a free society, free speech, the U.S. Supreme Court has accorded constitutional protection to a number of aspects of speech and the press. One aspect protected by the Supreme Court is symbolic speech. Symbolic speech is a means of expression that includes symbols or signs and conveys a particular message or statement to those viewing it. Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document. Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea. This can be seen in Tinker v. Des Moines Independent Community School District, where the Supreme Court upheld the rights of high school students to wear black armbands to protest the Vietnam War. Even symbolic speech has its limitation as clearly seen by the “Bong hits 4 Jesus” case where the Court ruled that a student’s free speech rights were not violated when he was suspended for displaying what the Court characterized as a “sophomoric” banner at an Olympic torch relay parade. Hate speech is also protected under the freedom of speech. In R.A.V. v. City of St. Paul, the Court ruled that a white teenager, who burned a cross on a black family’s front lawn, could not be charged under a hate crime law because first amendment prevents governments from “silencing speech on the basis on its content.” In 2003, they finally narrowed this definition further by including that a person can be charged for cross burning when it occurred with the intent of racial discrimination.

Although some most types of speech are protected under the first amendment, some are not. These included libel, fighting words, obscenity and lewdness. According to the Supreme Court “such expressions are no essential part of any exposition of ideals… and any benefit from may be derived from them is clearly outweighed by the social interest in order and morality.” Libel is a written statement that defames a person and when it is spoken, it is called slander. Both of them are not protected under the freedom of speech rights. First case to sue for libel was New York Times Co. v. Sullivan in 1964. An Alabama court found Times guilty of libel for printing an advertisement that accused an Alabama official of physically abusing African Americans. But, the Supreme Court overturned this conviction and established that a finding of libel against a public official could stand only if there was a showing of “actual malice.” Furthermore, In Chaplicky v. New Hampshire, the Supreme Court ruled that fighting words are not subject to the restrictions of the First Amendment. Finally, obscenity is another form of speech that is not protected under the first amendment. In Roth v. U.S., the Court ruled that to be considered obscene the material in question had to be “utterly without redeeming social importance.” This was hard to judge because the Supreme Court struggled to find a standard for judging actions of words.

These guarantees protected by the First Amendment have been subject to varying degrees of scrutiny by the Supreme Court over the years.