Introduction to Freedom of Speech in the US

Freedom of speech is described as the freedom to express opinions and ideas without limitations or hindrances. It’s ones liberty to speak without being censored or limited. Freedom of expression which is a synonym of freedom of speech, is used to describe not only ones liberty to verbal speech but also freedom of any act of receiving or sending information or opinions, without considering the medium of communication used. Practically, this right to freedom of speech is not clearly explained in many countries and therefore it’s usually subject to limitations by some forms of government.

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The right to freedom of speech or freedom or freedom of expression is recognized in the UDHR (universal Declaration of Human Rights), as a human right. It’s also recognized in the ICCPR (International Covenant on Civil and Political Rights), where it’s defined as “the right to hold opinions without interference” (Vile 2007). Everyone in the world is entitled to the right of expressing him or herself freely. Freedom of speech is recognized by many human rights organizations in Africa, Europe and America. The modern idea of freedom of speech came up slowly during the European Enlightenment though the concept is also found in human rights documents of the early man. The 1689 Bill of rights in England allowed freedom of speech in parliament while the rights of citizen and man declaration which came up during the French revolution of 1789, particularly acknowledged the freedom of speech as an inalienable human right (Finan 2008 37).

English speech regulators of the colonial times were somehow strict while criticizing the government was made a crime by the criminal common law of England. In 1704, Holt, a Chief justice, explained that there was need for restricting people against criticizing the government, or otherwise no government can survive. Holt argued that it’s quite important that people have good opinion of any government. By 1694, England had already put in place elaborate measures of handling the freedom of speech and press. No publication in the country could be endorsed without license from the government. According to Finan (2008), during the time of colonization, the American colonies held varying views on the concept of free speech (Finan 46). In these colonies there were lesser seditious libel prosecutions than in England though other regulations on dissident speeches were already there. Some of speech controls in America at that time were those restricting blasphemy in a religious sense.

Freedom of speech and the Constitution of U.S

Although the constitution of the United States guarantees freedom of speech, the legal systems in the country have never treated this right as absolute. According to Bardes, Shelley & Schmidt (2008) , some of the obvious restrictions of the freedom of expression are found in the many laws that regulate sedition, incitement, libel and slander, expression of racial hatred, blasphemy and conspiracy (Bardes, Shelley & Schmidt 125). However the liberal tradition has always defended the freedom of that kind of speech which does not the rights of other people and one that does not lead to unseen harm. The liberal tradition has however been fierce in this defense since a free exchange of opinions and ideas is seen as a fundamental component of democracy as well as a nice way of resisting tyranny. The difference between an action which can be termed as speech and one which is not speech is not well understood since there are many non-verbal actions which can be viewed as making a statement.

Some actions like burning a national flag or destroying a national symbol, though nothing is verbally said, are just like making a statement which then raises controversy in determining the right of a person to do such actions (Reeve). Some valued freedom of speech also include, writings, publications, oral delivery of ideas as well as broad casting. The current concept of freedom of speech in the United States of America is derived from the freedom of the press and religion as developed in the seventeenth century in England. John Milton and others arguments on the necessity of unlicensed press, as well as the arguments of John Locke on religious toleration, were among the forerunners of the concept of freedom of speech.

By the time when the first amendment was verified in 1791, the concept of freedom of speech was substantially deep-rooted such that it became the main language of the amendment while freedom of the press was added so as to make sure that both written/printed as well as oral communication was protected. A clause in the amendment stated that the “congress shall make no law abridging the freedom of speech” (Cohen 2009 4). At that time, discussions both in law and in politics were still focused on political argument that were printed whether in newspapers or in tracts circulated by men like Thomas Paine.

For the period between 1791 up to early twentieth century there was no involvement of the judiciary in the issues of free press and free speech and the public discussions were therefore mainly devoted to ideas of free press instead of free speech (Cohen 2009 3). However when the Supreme Court started to actively involve itself with judicial enforcement of the 1st Amendment in 1919, it was in the context of speakers and not of books, newspapers or magazines. Sometimes the Supreme Court also focused on the pamphleteers who were protesting against the involvement of America in the First World War, and its promotion of socialists, anarchist or syndicalist causes. Even if the convictions were endorsed and the speakers imprisoned in cases involving the now infamous figures like Jacob Abrams, Charles T and Jacob Frowerk and those involving the famous ones like Eugene Debs, the language of the Supreme Court had an enduring effect in those cases.

In upholding the Schenck, Debs and Frowerk convictions, Justice Oliver, Holmes junior, articulated the principle of the “clear and present danger”. According to this principle, in justifying the regulation, the harms from speech had to be higher in immediacy and likelihood more than the harms resulting from other varieties. In rebelling from Abrams conviction, Holmes established the notion of “the market place ideas” that had overwhelmed the understanding of need for freedom of speech by the public (Reeve).

The progress of the freedom of speech in United States for the following forty years was also dominated by the protection by Supreme Court, of mostly the socially marginal communicators. Among these commentators the Jehovah witnesses were the most crucial. During the 1930s to 1950s series of cases, these communicators were greatly opposed to the restrictions on the proselytizing actions. These groups won the cases in the Supreme Court as well as in the lower courts (Reeve). With substantial frequency established by their victories, these communicators were able to establish in public consciousness and in legal doctrines the principle that even the offensive intrusive, and annoying speech, should be protected by the court and accepted by the public as a supplementary in an open society.

Present day understanding of the freedom of speech is highly credited to the 1960s developments, in which the first protestors of civil rights and opposers of the Vietnam War, found their activities being upheld by the courts which was against the efforts of the government to monitor them (Finan 2008 38) However the public increased its acceptance of the activities of these people. Consequently the present day understanding and protection of the freedom of speech is partially accidental, since the protection of civil rights activists, picketers and paraders during 1960s, was mainly an adjunct to judicial protection of movements for civil rights in general. However the principles of the first amendment which were developed to promote the civil rights society remained in place and were later used by other speakers in furthering other causes (Reeve).

The most crucial illustration of this transfer began in late 60s when with some consistency; the Supreme Court acknowledged the right of speakers in public forum to express concepts that were not only opposed the established political and military authority but also likely to hurt unwilling viewers or listeners. During the late 60s and early 70s the Supreme Court protected to some extent those who dishonored the flag of America, those who showed offensive language which included obscene words written on clothing and also those who conveyed messages that could easily offend other people. However the court has currently decided that the first amendment does not provide full protection to such speeches or expressions (Cohen 2009 4).

Working on a hypothesis that underegulation of even offensive speech was the sole way in to protect harmless speech from overregulation, the supreme court of United States moved from protecting the Vietnam opposers to defending speech of groups like the Ku Klux Klan. Actually Brandenburg v. Ohio case of the Ku Klux Klan is what led to development of the present day understanding of the Holmesian concept of “clear and present danger”. The concept argued that speech leading to unlawful acts like violence can be regulated only if the potential unlawful activity is possible to be forthcoming and also if the spokesperson has openly implied such an activity (Cohen2009 5).

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By the year 1977, the concept of clear and present danger was considered as an ‘easy case’ when court of appeal in America, for the seventh time, endorsed the right of Nazi party of America to march in Illinois and Skokie which was a community mostly lived by Holocaust survivors, a decision that the supreme court declined to review. According to Reeve, legal doctrines in America have not constantly translated into proper understanding of freedom by the public. However the outcome of large number of cases by the Supreme Court protecting the even the offensive speeches in public forum, and sometimes getting to virtual disappearance of legal description of obscenity, has resulted to an atmosphere whereby the presence of offensive or unpleasant speech is viewed as inconsequential by majority of the public.

However according to Cohen (2009), the Supreme Court has currently denied protection of obscenity by the 1st amendment regardless of whether it’s hurtful to individuals or not (Cohen 4). According to the court, there is evidence showing that when the first amendment was being adopted, ‘obscenity’ was outside the proposed protection of press and speech (Cohen 2009 4). The previous debates on the boundaries of freedom of speech in United States and in other regions show that there will be more disagreements in the future. However the legacy left by the Vietnam protestors, civil rights societies and by Jehovah witnesses, can not be easily narrowed down by a large part since the assumption of the 1919 legacy of the red scare and the 1940s and 1950s era of the McCarthy, is what influences the present understanding of the concept.

In the recent years speech debates in America have been dealing with among other issues, how ‘hate speech’ meant at racial or any other type of discrimination, can be restricted and the kind of restrictions/limitations that ought to be imposed on speech in an attempt to handle sexual harassment. The speech definition has itself been broadened to include ‘symbolic speech’ which encompass actions that imply opinions. Due to this definition, courts in United States of America have included the act of burning the flag of America while protesting, as part of protected speech (Vile 2007 212). Generally the right of freedom of speech is closely related to other human rights and therefore may be interfered with when dealing with other rights.

The government also recognizes and protects, as well as regulates the internet speech. For instance the Supreme Court prohibits fighting words in the internet, false advertising, obscene speech and defamatory speech (Cohen 2009 2). Similarly the first amendment does not protect dissemination of information like instructions on to how to make a poison or a bomb or other lethal devices. The us government can therefore bring to law anyone spreading such information on the internet but only after confirming the publication was meant to assist in commissioning a crime. Death threats are viewed by the American courts as criminal offenses and many writers of hate email messages have been convicted on these grounds.

According to Cohen (2009), even the speech that is highly protected by the first amendment is liable to restriction based on its content after passing through strict scrutiny (Cohen 2). If the government realizes that the restriction is important so as to serve in promoting a compelling interest, then it has the right to do so.


Freedom of speech is basically the liberty to speak and otherwise express one’s ideas or opinions without fear of victimization by the government. Just like the freedom of press, the freedom of speech has never been absolute at any time or place. The 1st amendment of the American constitution deters the federal government from “abridging the freedom of speech” (Bardes, Shelley & Schmidt 2008 119). Since 1920s the amendment’s protections have been extended against federal action and against the state. Although the concept of freedom of speech is more upheld in the United States than in many other countries, the laws of the federal state still show many restrictions to freedom of expression. Some kinds of expression or speech are considered as harmful to individual interests for instance slander and libel are basically regulated due to their threat of action.

Other forms of speech like use of vulgar or obscene language are discouraged because they are viewed as being destructive to the general society. Protecting speech that is seemingly disruptive to the society has for long been impossible. Certain words or statements that can cause panic to the general public or lead to a breach of peace in a community have not been tolerated in the United States of America as well as in many other nations (Bardes, Shelley & Schmidt 2008 120). The American government also puts restriction on speeches that seem to be a threat to its security. According to Reeve, even if sedition laws are seldom prosecuted in America, such issues like ‘threat to national security’ have been called upon to silence opposition or criticism to the government. Laws formulated particularly to restrict opposition to structured religion, which are common in some societies, in US; they would run afoul of the 1st Amendment.

The question of what makes up legally or socially acceptable speeches is also depended on cultural and historical factors. The rules on this issue vary from one society to the other while what is viewed as culturally acceptable in one society may be quite offensive in another society. Freedom of speech in U.S. is defended in the U.S constitution’s First Amendment as well as by several state constitutions and federal laws in the country.



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