In a Nutshell
- The First Amendment's guarantee of free speech is one of America's most cherished values
- But the meaning of "free speech" has changed over American history
- Courts have accepted certain restrictions on speech that is dangerous, seditious, or obscene
Americans inherited a tradition of free speech from the British. And they codified their commitment to this inherited right with the ratification of the First Amendment. But from the start, Americans chaffed under the British understanding of this right. Under British law, free speech meant no prior restraint—that is, you could say or print what you wanted, but you could be punished for your expression under the nation's broadly defined sedition and libel laws. Consequently, Americans pushed for a more extensive right of speech—a right which shielded persons from criminal prosecution for their words and, in turn, ensured that ideas and information would flow more easily through the republic.
The courts have been largely responsible for protecting and extending this right of speech. Over the past two centuries they have explored the protection owed all sorts of expression, including sedition, "fighting words," "dangerous" speech, and obscenity, and all sorts of persons, including political radicals, Ku Klux Klansmen, and even students. But in doing so, the courts have also operated under the premise that a portion of the British legacy was correct: the right to speech is not absolute. As a result, the legal history of the First Amendment could be summarized as a balancing act—an attempt to protect and extend free speech guarantees but also define the limits of this right in a manner consistent with the equally compelling rights of the community.
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Why Should I Care?
Freedom of speech would be easy if words did not have power. Guaranteeing people the right to say and print whatever they wanted would be easy if we believed that words had no real effect.
But Americans tend to believe that words do have power—that they can anger and inspire, cause people to rise up and act out. Americans celebrate speakers like James Otis, Abraham Lincoln, and Martin Luther King, Jr., whose words inspired people to fight for independence, advance the American experiment in republican government, and dream of a more just society.
Freedom of speech would be easy if all people could be trusted to be rational discerners of truth—if everyone could be trusted to sort out good ideas from bad ideas and recognize the ideologies and policies that were truly aimed at the best interests of the community.
But history has proven that people do not always recognize and reject bad ideas. The past is filled with examples of peoples and nations swayed by destructive ideas.
Freedom of speech would be easy if we just said that the right was absolute, that there were no limitations on what a person could say or print and no legal consequences for any expression no matter how false, slanderous, libelous, or obscene.
But as a nation, we have always held that there are limits to the right of speech, that certain forms of expression are not protected by the First Amendment.
The bottom line: freedom of speech is not easy. Words are powerful, which means that they can be dangerous. Humans are fallible, which means that they can make bad choices. And the right of speech is not absolute, which means that the boundaries of protected speech have to be constantly assessed.
All of these facts complicate America's commitment to free speech, but they also make this commitment courageous. In addition, they leave the legal system with a difficult challenge. On the one hand, the courts are entrusted with protecting this right to free expression, which is so central to our national experience. On the other hand, they are charged with identifying the often blurry edges of this freedom.
Read on, and see if the courts have appropriately met both of these responsibilities.