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.
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.
In 1999, the Ku Klux Klan was granted a mile of Interstate 55 to clean up under Missouri's adopt-a-highway program. State officials attempted to block the Klan's participation; they were particularly concerned about the public's response to the sign that the Klan would be allowed to post along its stretch of highway. But after five years of litigation, the local KKK chapter's claim that it had a First Amendment right to post a sign and pick up trash was supported by the court.
When Fatima Stevens, a minister of the Spiritual Psychic Science Church of Truth, was forbidden to practice commercial palm reading by a city ordinance, her holiness argued that her rights of speech were being violated. And the court agreed. In 1984, the California Supreme Court held that palm reading and other forms of prognostication were protected forms of speech, even when engaged in for a fee. Remember, the court said while drawing an interesting parallel, Thomas Paine did not give away his famous pamphlet, Common Sense.
Paul Murphy, The Shaping of the First Amendment: 1791 to the Present (1992)
Murphy offers a thoughtful and concise introduction to the First Amendment and its history. It is not a case by case review of the Supreme Court's exposition of First Amendment rights; instead the book offers a more subtle analysis of the First Amendment's application to the conditions and challenges of various historical periods.
Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)
Lewis combined his skills as a New York Times Columnist and his knowledge as a Harvard Law School graduate to produce this compelling and authoritative review of this 1964 Supreme Court libel case. The book is particularly good at placing this case within the context of a much longer history of First Amendment legal decisions.
Truth is a Defense
Andrew Hamilton, the Philadelphia lawyer who defended John Peter Zenger in 1735 and introduced a new defense for seditious libel.
Oliver Wendell Holmes, Jr.
The Supreme Court Justice who authored the clear and present danger test for dangerous speech.
BONG HiTS 4 JESUS
The student banner that led to Morse v. Frederick.
Tinker v. Des Moines
Mary Beth and John Tinker and the armbands that caused a First Amendment controversy.
The writer, publisher, and book distributor at the center of Roth v. United States.
The contempt citation filed against this San Francisco labor leader was reversed by the Supreme Court using the clear and present danger test.
Good Night, and Good Luck (2005)
This film takes a Hollywood-enhanced look at the confrontation between CBS newsman Edward R. Murrow and anti-communist witch-hunter Joseph McCarthy. The film explores the pressures placed on free speech through both government officials and commercial sponsors.
This film is a bit dated, but its exploration of the First Amendment questions surrounding the attempt of a neo-Nazi group to march in Skokie, Illinois, a community with a large population of holocaust survivors, is still provocative.
Shut Up and Sing (2006)
This documentary follows the Dixie Chicks as they deal with the commercial consequences of the political speech that offended their country-western audience.
Cornell University Law School has posted an "annotated Constitution" with an extremely useful page dedicated to the First Amendment. It traces the First Amendment's legal evolution and provides concise summaries of the critical court cases.
First Amendment Center
The First Amendment Center maintains an educational website with extensive information and resources pertaining to the speech clauses of the First Amendment. Several freedom of speech issues are summarized, such as student rights and the First Amendment application to the arts. There are also lesson plans and links to relevant congressional reports and summaries of pending cases.
The American Civil Liberties Union tracks current First Amendment issues and cases on this site.
Supreme Court Arguments
Oyez, a searchable database of United States Supreme Court cases, provides audio files of the oral arguments made in historic cases.
This site provides audio and video files (as well as text transcripts) of many of the most important speeches in American history.
Supreme Court Cases
Oyez, a searchable database of United States Supreme Court cases, provides audio files of the oral arguments and links to written opinions.
A number of the documents lying at the center of historic First Amendment cases such as Schenck's and Abrams's pamphlets, Gitlow's manifesto and the student articles from the Hazelwood East High School newspaper are available here.
Ahead of Its time
Tunis Wortman's far-sighted Treatise Concerning Political Inquiry and the Liberty of the Press is available here.
This site provides text transcripts (as well as audio and video files) of many of the most important speeches in American history.