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A Brief History Of Free Speech In The United States
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A Brief History Of Free Speech In The United StatesBy the late 1700s, the concept of free speech was constituted by merely the lack of prior restraint or censorship. This was considered important because of the rise of newspapers and other political publications. Not until 1789, however, when the First Congress accepted amendments to the Constitution, was a free speech amendment advocated by James Madison. Madison’s proposal was not adopted because his views on free speech and press were too radical for his peers. The First Amendment, which was finally ratified on December 15, 1791, states that “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 a people peaceably to assemble.” One of the first significant challenges to the right to free speech occurred in 1798, when Congress passed the Alien and Sedition Acts. Their purpose was to impose “criminal sanctions for ‘any false, scandalous writing against the government of the United States.”75 However, this led to widespread protest throughout the country, so following that period the regulation of these materials was left primarily to the states. Regulation of materials deemed lewd or obscene became the object of censorship in the second half of the 19th century, and this was a more pernicious regulation over free speech in the long run, as prosecutions over obscenity escalated throughout the 19th century. The Supreme Court has maintained that pornography, as well as fighting words, falls outside of the bounds of protections afforded by the first amendment. However, there are several difficulties in the regulation of pornography. For one thing, the definition of what constitutes obscene and offensive is extremely variable. The censorship of children’s books like Judy Blume’s Are You There God, It’s Me Margaret or Mark Twain’s Huck Finn, as well as classics by James Joyce, Henry James, etc. demonstrates the odd range of materials that have been considered offensive by different groups. In light of this, the Supreme Court created a series of guidelines to determine what was socially valuable speech and what deserved censoring. In a 1996 court case Justice Brennan created a three pronged test in which he, “combined…[several previous] requirements in holding that obscene materials are excluded from First Amendment protection only if they fail all three requirements—that is, they (1) have a prurient interest that (2) appeal in a patently offensive way and (3) lack a redeeming social value.”76 The criterion of lacking social value protects most art, books, etc., putting a fairly stringent limit on what justifies censorship. “Fighting words” is another category of speech that is unprotected by the First Amendment, although it is very limited. Fighting words are those words which have a direct tendency to cause acts of violence by the persons to whom they are addressed. There are three main justifications for considering this type of speech unconstitutional. First, they aren’t speech because they are intended to harm, like a punch. Second, they cause a breach of the peace, like a clear and present danger. Third, they are not an essential part of an exposition of ideas. In other significant court cases the definition of fighting words was further narrowed. In Cohen v. California (1971) the Supreme Court ruled that “four-letter words,” no matter how offensive, are not necessarily outside the realm of protection. This case also found that the speech had to be directed against a specific person, not a group or institution. Furthermore, in Gooding v. Wilson (1972) the court held that in order to be fighting words the speech had to incite an immediate breach of the peace, it could not be something that would incite violence by others who heard about it some time in the future. The presumption that words must incite immediate violence makes it a problematic but rarely used restriction of free speech. In spite of several constitutionally limited areas of speech, the Supreme Court has ruled in favor, for the most part, of defining free speech broadly. There are many famous court cases that demonstrate this. For example, in 1989, in the case Texas v. Johnson, the court overturned the conviction of Johnson, who had violated a Texas statute that banned the mistreatment of the American flag when he burned one during the 1984 Republican National Convention to protest the Reagan administration. In related cases, the Supreme Court has held, in defiance of state and local statutes, that it is constitutionally protected behavior to burn, tape a peace sign to, and sew an American flag to the seat of one’s pants. In another famous example, Hustler Magazine v. Falwell, the court ruled that the State’s interest in preventing emotional harm does not outweigh the right to political satire. In this specific case Hustler (a pornographic newspaper) had printed an advertisement consisting of a picture of Reverend Falwell and a fictional interview in which he says that he lost his virginity to his mother in an outhouse while drunk. The court held that the ad was so outrageous that it Falwell could not claim damages for emotional distress, even though Larry Flint said, during his deposition, that he did it explicitly for the purpose of hurting Falwell. Parody, even hurtful parody, is therefore considered to be a highly protected form of speech. Political liberals and leftists in the United States in the 1930s, 1940s, and 1950s were the driving force between the paradigmatic first amendment court cases, which addressed attempts by the government to restrict unpopular and dissident speech. However, in recent decades the left has become critical of free speech. Some examples of speech that some factions would like to restrict are speech that promotes racial stereotypes and oppression, pornography, and the lack of regulation of economic power (which passes itself off as free speech) intended to influence the political process. This does not deny some of the benefits of free speech that are highly valued by the left, such as dissent, egalitarian participation in social power, individual conscience, and individual autonomy. However, libertarianism is being abandoned by progressive scholars who find that the first amendment in practice stands in the way, at times, of a more humane and egalitarian society. Examining some specific court cases that have upheld competing progressive values by restricting free speech demonstrates an effective method of answering the value of free speech without necessitating a conservative framework. 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