Free Speech
Free Speech
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From Deep Throat to Bong Hits 4 Jesus

  • The First Amendment protects free speech, but some types of speech are given greater protection than others
  • Courts have granted political speech the greatest protection under the First Amendment
  • Courts have accepted tighter limits on "fighting words," dangerous speech, and obscenity
  • Supreme Court understanding of the meaning of "free speech" has evolved over time

Harry Reems, star of Deep Throat and other pornographic films, argues that his conviction for conspiracy to transport pornography across state lines violates his First Amendment rights. A high school student claims that the First Amendment protects him from punishment by school officials after he whips out a banner reading "BONG HiTS 4 JESUS" across the street from a school-sanctioned event. A Ku Klux Klansman says that the First Amendment protects him from criminal charges after urging his gun-wielding followers to take vengeance against the federal government for supposedly abusing the rights of white people.

You've got to be kidding, right? Harry Reems can't be the person James Madison had in mind in 1789 when he proposed an amendment to the constitution protecting free speech. Thomas Jefferson couldn't have been talking about sophomoric high school signs and moronic Klan rants when he argued that unfettered expression was both safe and necessary because "the truth is great and will prevail."32

Well, maybe yes and maybe no. Sorting out the full intentions of the founding fathers is always a tough one. But what is pretty clear is that the framers of the First Amendment were thinking, at least primarily, about political speech when they declared that "Congress shall make no law . . . abridging the freedom of speech, or of the press." And generally speaking, the courts have tended to place political speech in a special category. Over the past century, in particular, they have tended to tread more gently around political speech than other forms of expression.

For example, the Supreme Court had held that political speech is protected even when it advocates illegal action and violence, so long as this speech is not directed toward inciting "imminent lawless action" and so long as it is not "likely to incite or produce such action."33 Political speech is protected even if it stirs a crowd of hostile listeners to anger and unrest. But, non-political speech is not similarly protected. The Court has held that "fighting words," words that are "likely to provoke the average person to retaliation," are not protected by the First Amendment.34

But this does not mean that only political speech is protected. Over the past century, the courts have issued hundreds of rulings on the First Amendment, leading toward more comprehensive protection for rights of expression. For example, since the 1950s the Supreme Court has ruled on several obscenity cases, trying to decide the extent to which various forms of pornography fit under the umbrella of the First Amendment. And while the Court has consistently held that obscenity does not enjoy full protection, it has recognized that it needs to couple this decision with some sort of definition of the materials falling inside and outside First Amendment protection. As a result, within the decisions denying obscenity protection, the Court has extended some of its fullest guarantees for other forms of expression. (You can read about all this here.)

The Court has also wrestled with the question of free speech for students and the results have been far from clear. The seeming inconsistencies in the Court's response to student First Amendment cases could be linked to the more general deference to political speech over other forms. The Court's most generous interpretation of speech rights for students involved a form of overt political expression; the Court's most narrow interpretation of student speech rights involved what school officials deemed obscene. But recent rulings suggest that the Court is struggling not just with different forms of speech, but with persisting uncertainties about the very nature of schools and students—that is, they are not sure whether students should be treated as citizens or as children, or whether student expression should be treated as "speech" or classwork. (You can read more about this here.)

In other words, the courts have gone far beyond reading the First Amendment as some sort of narrow protection for rights of political speech. And in fact, some would argue that a more comprehensive right to expression was implicit in the founders' intentions. Regardless, it is hard to imagine that the challenge facing the courts will lessen. Expanding educational opportunities, new technologies, and America's growing diversity all suggest that the meaning of free speech will require further clarification.

Oh yeah—what about Harry Reems, "BONG HiTS 4 JESUS," and our angry Klansman? You will need to read on to find the rest of their stories.

Original Meaning of Free Speech

  • Many emphasize the importance of the "original meaning" of the Constitution in debates over how to interpret the First Amendment
  • But there are many potential sources of "original meaning" (or perhaps, to be more accurate, "original meanings")

Sorting out the original meaning for various clauses and provisions of the Constitution is always a challenge. As with all of these quests, the first difficult question is where should we look? To the state ratifying conventions that demanded amendments to the Constitution? To the congressional debates surrounding the drafting of the amendment? To the debates surrounding speech in the first decades after ratification? Or should we look to broader philosophical or common law traditions surrounding speech?

Probably, we need to look at all of these to figure out the intentions of the amendment's framers. Perhaps then we can determine the original meaning, or meanings, of the First Amendment.

Next Page: Roots of Free Speech Laws
Previous Page: Just the Facts

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