United States free speech exceptions
The First Amendment broadly protects the rights of free speech and free press.[60] Free speech means the free and public expression of opinions without censorship, interference, or restraint by the government.[61][62][63][64] The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say.[65] The speech covered by the First Amendment covers many ways of expression and therefore protects what people say as well as how they express themselves.[66] Free press means the right of individuals to express themselves through publication and dissemination of information, ideas, and opinions without interference, constraint, or prosecution by the government.[67][68] In Murdock v. Pennsylvania (1943), the Supreme Court stated that "Freedom of press, freedom of speech, freedom of religion are in a preferred position."[69] The Court added that a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying, or distasteful.[70] The Constitution protects, according to the Supreme Court in Stanley v. Georgia (1969), the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts.[71] As stated by the Court in Stanley: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."[72]
Despite the common misconception that the First Amendment prohibits anyone from limiting free speech,[73] the text of the amendment prohibits only the federal government, the states, and local governments from doing so.[74][75] State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in Pruneyard Shopping Center v. Robins.[76]
The Supreme Court of the United States characterized the rights of free speech and free press as fundamental personal rights and liberties and noted that the exercise of these rights lies at the foundation of free government by free men.[77][78] The Supreme Court stated in Thornhill v. Alabama (1940) that the freedom of speech and of the press guaranteed by the United States Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern, without previous restraint or fear of subsequent punishment.[79] The Court noted in Bridges v. California (1941): "The ability to publicly criticize even the most prominent politicians and leaders without fear of retaliation is part of the First Amendment, because political speech is core First Amendment speech. ... For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions."[80] In Bond v. Floyd (1966), a case involving the Constitutional shield around the speech of elected officials, the Supreme Court declared that the First Amendment central commitment is that, in the words of New York Times Co. v. Sullivan (1964), "debate on public issues should be uninhibited, robust, and wide-open".[81] The Court further explained that just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected:
But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. ... To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."[60]
The level of protections with respect to free speech given by the First Amendment is not limitless.[82] As stated in his concurrence in Mosley, Chief Justice Warren E. Burger said: "the First Amendment does not literally mean that we 'are guaranteed the right to express any thought, free from government censorship.'"[83]
Attached to the core rights of free speech and free press are several peripheral rights that make these core rights more secure. The peripheral rights encompass not only freedom of association, including privacy in one's associations, but also, in the words of Griswold v. Connecticut (1965), "the freedom of the entire university community", i.e., the right to distribute, the right to receive, and the right to read, as well as freedom of inquiry, freedom of thought, and freedom to teach.[84]
Wording of the clause
The First Amendment bars Congress from "abridging the freedom of speech, or of the press." U.S. Supreme Court Justice John Paul Stevens commented about this phraseology in a 1993 journal article: "I emphasize the word 'the' in the term 'the freedom of speech' because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech." Stevens said that, otherwise, the clause might absurdly immunize things like false testimony under oath.[85] Like Stevens, journalist Anthony Lewis wrote: "The word 'the' can be read to mean what was understood at the time to be included in the concept of free speech."[86] But what was understood at the time is not entirely clear.[87] In the late 1790s, the lead author of the speech and press clauses, James Madison, argued against narrowing this freedom to what had existed under English common law: "The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law."[88]
Madison wrote this in 1799, when he was in a dispute about the constitutionality of the Alien and Sedition Laws, which was legislation enacted in 1798 by President John Adams's Federalist Party to ban seditious libel. Madison believed that legislation to be unconstitutional, and his adversaries in that dispute, such as John Marshall, advocated the narrow freedom of speech that had existed in the English common law.[89]
Historical outlook
The Supreme Court declined to rule on the constitutionality of any federal law regarding the Free Speech Clause until the twentieth century[90] and tended to overlook free speech protection.[82] For example, the Court never ruled on the Alien and Sedition Acts; three Supreme Court justices riding circuit presided over sedition trials without indicating any reservations.[90] The leading critics of the law, Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment and other Constitutional provisions.[91] Punishment for blasphemy was affirmed throughout the nineteenth century.[82]
During the patriotic fervor of World War I and the Red Scare,[93] the Court sought to restrict speech seen as promoting crime.[82] In one such case, Socialist Party of America official Charles Schenck was convicted under the Espionage Act of 1917 for publishing leaflets urging resistance to the draft.[94] Schenck appealed, arguing that the Espionage Act violated the Free Speech Clause of the First Amendment. In Schenck v. United States, the Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction.[95] Justice Oliver Wendell Holmes Jr. explained that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."[96]
However, this trend changed in the 1920s, as the Court began interpreting the First Amendment more broadly.[82] In Gitlow v. New York (1925), the Court upheld the conviction of Benjamin Gitlow, who had been convicted after distributing a manifesto calling for a "revolutionary dictatorship of the proletariat."[98] At the same time, a majority found that the First Amendment applied to state laws as well as federal laws,[99][100] the first time the Court formally accepted this view.[82] Free speech cases thereafter would generally concern state suppression.[100] In Whitney v. California (1927), Justice Louis Brandeis wrote a dissent in which he argued for broader protections for political speech: "Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; ... that public discussion is a political duty; and that this should be a fundamental principle of the American government."[101]
In Herndon v. Lowry (1937), the Court heard the case of African American Communist Party organizer Angelo Herndon, who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States. The Court reversed Herndon's conviction, holding that Georgia had failed to demonstrate any "clear and present danger" in Herndon's political advocacy.[102] The importance of freedom of speech in the context of "clear and present danger" was emphasized in Terminiello v. City of Chicago (1949), where Justice William O. Douglas wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."[103]
Following Thornhill v. Alabama (1940), the Court refrained
from applying clear and present danger test in several free speech cases involving incitement to violence.[104] In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence."[105] In Dennis v. United States (1951), the Court upheld the law.[106][c] In a concurring opinion, Justice Felix Frankfurter proposed a "balancing test," which soon supplanted the "clear and present danger" test: "The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process."[106]
During the Vietnam War, the Court's position on public criticism of the government changed drastically,[107] as its reading of the First Amendment broadened further.[82] In 1969, it handed down its decision in Brandenburg v. Ohio (1969), expressly overruling Whitney v. California.[107] Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis.[108][109] Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms: "the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action."[110][107]
Political speech
Anonymous speech
The Supreme Court has generally safeguarded anonymous speech under the First Amendment. This is especially pertinent in cases concerning controversial political groups, such as the NAACP and the Watchtower Bible and Tract Society, where their anonymity helped secure their right to assembly.[111] In Talley v. California (1960), the Court struck down a Los Angeles city ordinance that criminalized distributing anonymous pamphlets. Justice Hugo Black wrote in the majority opinion: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression."[112] However, the court has been less protective of such speech in campaign finance donations and on the internet.[111]
Campaign finance
See also: Campaign finance reform in the United States
The Court considers campaign donations as speech sometimes protected by the First Amendment.[113] In Buckley v. Valeo (1976), the Supreme Court affirmed the constitutionality of limits on campaign contributions,[114] saying they "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."[115] However, the same decision established campaign finance as a form of political speech.[116] Over thirty years later, the Court ruled in Citizens United v. Federal Election Commission (2010) that restrictions on independent political spending by corporations or unions violated the Free Speech Clause and were therefore unconstitutional.[117] This, in effect, "enabled corporations and other outside groups to spend unlimited money on elections."[116] Federal aggregate limits on how much a person can donate to candidates, parties, and political action committees were later found to clash with the First Amendment in McCutcheon v. Federal Election Commission (2014).[118]
Professional/occupational speech
Some federal courts have suggested that a First Amendment distinction exists between speech directed at the public and speech aimed at individuals in a professional, fiduciary, or business context—so called occupational, or professional, speech.[119] For example, in Lowe v. Securities Exchange Commission (1985), Justice Byron White argued that the government could permissibly restrict the speech of "[o]ne who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances."[119] Over time, a number of courts adopted Justice White's view in what became known as the "professional speech doctrine."[120] In National Institute of Family & Life Advocates v. Becerra (2018), however, the Supreme Court repudiated the doctrine, claiming that "this Court has never recognized 'professional speech' as a separate category of speech subject to different rules."[121]
There has been significant debate over whether flag desecration is protected by the First Amendment.[122] The Supreme Court addressed this issue in Street v. New York (1969), amid a popular trend of burning the U.S. flag to protest the Vietnam War.[123] While it found a New York law criminalizing attacking any U.S. flag in various ways[124] unconstitutional, it left the constitutionality of flag-burning unaddressed.[125][123] However, in Texas v. Johnson (1989), the Court explicitly ruled that flag burnings are a form of protected speech.[126]
School speech
Main article: Freedom of speech in schools in the United States
In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War.[127] The Court ruled that the school could not restrict symbolic speech that did not "materially and substantially" interrupt school activities.[128] Justice Abe Fortas wrote: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[129] However, since 1969, the Court has also placed several limitations on Tinker. In Hazelwood v. Kuhlmeier (1988), the Court found that schools need not tolerate student speech that is inconsistent with their basic educational mission,[130] and in Morse v. Frederick (2007), it ruled that schools could restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use."[131] In 2014, the University of Chicago released the "Chicago Statement", a free speech policy statement designed to combat censorship on campus, which was later adopted by other prestigious universities.[132][133]
Compelled speech
Further information: Compelled speech
The Supreme Court has determined that the First Amendment also protects citizens from being compelled by the government to say or to pay for certain speech. In West Virginia State Board of Education v. Barnette (1943), it was ruled that school children could not be punished for refusing either to say the pledge of allegiance or salute the American flag.[134] The Court determined in Janus v. AFSCME (2018) that requiring a public sector employee to pay dues to a union of which he is not a member violated the First Amendment.[135]
Hate and offensive speech
Hate speech, while difficult to define precisely, is safeguarded by the First Amendment.[136][137] In fact, Justice John Marshall Harlan II addressed the subjectivity that belies one's understanding a statement as hate speech: "One man's vulgarity is another man's lyric."[138][136] The American Library Association provides a general definition of hate speech: "any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin."[137] "Freedom for the thought we hate," as expressed by Justice Oliver Wendell Holmes Jr., is guaranteed, and the Court has recognized it.[136] In one case, Snyder v. Phelps (2011), the Court found that individuals who picketed a military funeral holding signs stating "God Hates Fags" and "Thank God for Dead Soldiers" were acting within the limits of the First Amendment.[139]
However, a distinction is made between hate speech and hate crimes. The latter stirs up criminal activity or threatens specific individuals or groups and is therefore illegal.[137] Fighting words—personal insults and deliberately violent statements directed at a particular person or group—also do not qualify as free speech. For instance, in the 1940s, a man who called a police officer a "God-damned racketeer” and "a damned fascist" was arrested, and the Court upheld his conviction.[140] On the other hand, in Texas v. Johnson (1989), it did not find public flag desecration unconstitutional and, in fact, deemed it a form of protected speech: while the act was offensive, it was not meant as a direct personal insult toward any passersby.[141] Justice William J. Brennan Jr. wrote in the decision that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."[142] The fighting words doctrine itself has been criticized and labelled as a "relic" of a bygone age.[141]
Code as speech
Code as speech, is the doctrine that treats computer source code and similar digital expressions as speech protected by the First Amendment. Regulation of computer code most prominently began during the 1990s with the "crypto wars," when courts rejected the government's effort to classify strong encryption software as export-controlled munitions. In Bernstein v. United States, the Ninth Circuit Court of Appeals held that source code is a form of expressive language.[143][144][145] Since that ruling, the doctrine has been invoked in disputes over government pressure to weaken encryption such as the Apple-FBI phone case.[146] It has also been used as justification to extend legal protection to the development of cryptocurrencies and privacy tools with advocates arguing that publishing or running such software is protected speech and expression.[147][148] Similar arguments have been used for 3D-printed gun files and tools bypassing digital rights management, with proponents of code as speech claiming that restricting distribution of code or design files is unconstitutional.[149][150] The treatment of code as speech remains an active area of litigation and scholarly debate.[151][152]
Commercial speech
Main article: Commercial speech
Commercial speech, done for the purpose of selling a product or service,[153] is entitled to First Amendment protections but not as much as other forms of speech, such as that political.[154] The Supreme Court began treating commercial speech thus in the 1970s; in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, Inc. (1976), it struck down a state law barring the advertisement of drug prices by pharmacies.[154] The Court has since noted that "speech does not lose its protection simply because money is transacted through it," but this does not make commercial speech immune to regulation.[154] In Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), the Court developed a four-pronged test to clarify when to restrict such speech: it must be misleading or involve illegal activity; the government must prove "substantial interest" in regulating it; the regulation must directly advance the governmental interest asserted; and the regulation must not be more strict than necessary.[153] For example, the 1986 case Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico saw the Court uphold Puerto Rico law that barred casinos from advertising to its residents, finding that it preserved the federal government's interest of preventing gambling and to protect residents' safety and well-being.[154]
Defamation
For the first two-hundred years of American jurisprudence, libel placed specific emphasis on the result of the allegedly harmful publication[156] over whether the publication was true or false.[157] Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule."[156] Two centuries later, the Supreme Court's ruling in New York Times Co. v. Sullivan (1964) transformed American defamation law.[158] Common law malice consisted of "ill-will" or "wickedness," and thereafter, public officials seeking a lawsuit against a tortfeasor needed to prove by "clear and convincing evidence" that there was actual malice.[159][160] "Libel can claim no talismanic immunity from constitutional limitations," Justice William J. Brennan Jr. noted.[155] While the actual malice standard applies to public officials and public figures, in Gertz v. Robert Welch, Inc. (1974) the Court ruled that actual malice need not be shown in cases involving private individuals.[155] Moreover, in Milkovich v. Lorain Journal Co. (1990), it was ruled that the First Amendment offers no wholesale exception to defamation law for statements labeled "opinion," but instead that a statement must be provably false before it can be the subject of a libel suit.[161]
Obscenity and pornography
Further information: United States obscenity law and Pornography in the United States
According to the Supreme Court, the First Amendment's protection of free speech does not necessarily apply to obscene speech.[162] It first tackled the matter in Roth v. United States (1957), in which it ruled that the First Amendment did not protect obscenity; the same case founded a standard to determine whether the material in question qualifies as obscenity.[162] Throughout the following decade, members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene.[163] Justice Potter Stewart, in Jacobellis v. Ohio (1964), famously said that, although he could not precisely define pornography, "I know it when I see it."[164] The so-called Roth test was expanded when the Court decided Miller v. California (1973). Under the *Miller* test, a work is obscene if: "a) 'the average person, applying contemporary community standards' would find the work, as a whole, appeals to the prurient interest ... b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[165]
Pornography, except for child pornography, is in practice free of governmental restrictions in the U.S., though pornography about "extreme" sexual practices is occasionally prosecuted.[27] Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber (1982) and Osborne v. Ohio (1990),[166][167] ruling that the government's interest in protecting children from abuse was paramount.[168][169] Personal possession of obscene material in the home may not be prohibited by law, as per Stanley v. Georgia (1969).[162]