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What is the role of free speech in a democratic society?

Book co-edited by prof. geoffrey stone examines evolution, future of first amendment.

Free speech has been an experiment from the start—or at least that’s what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent in  Abrams v. United States , one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in America’s national identity.

Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside America’s fears and progress, adapting to changing norms but ultimately growing in reach.

And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the government’s role in shaping the public forum.

That’s why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the country’s leading First Amendment scholars, brought together some of the nation’s most influential legal scholars in a new book to explore the evolution—and the future—of First Amendment doctrine in America. 

The Free Speech Century  (Oxford University Press) is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicago’s Gerald Ratner Distinguished Service Professor of Law; Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School; and others.

“Lee and I were law clerks together at the Supreme Court during the 1972 term,” Stone said. “I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Court’s first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence, Major Critiques and Controversies over Current Doctrine, The International Impact of our First Amendment Jurisprudence, and the Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.”

Stone, JD’71, has spent much of his career examining free speech— a topic he first became passionate about as a University of Law School student.

The University has a long tradition of upholding freedom of expression. UChicago’s influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.

The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speech and the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.

One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became “gatekeepers of free expression”—a shift that contributor Emily Bell, a Columbia University journalism professor, writes “leaves us at a dangerous point in democracy and freedom of the press.” Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.

Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.

“While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news,” Stone writes in the introduction. “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”

In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case,  New York Times Co. v. United States.  The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing the  New York Times  and  Washington Post  to publish a classified report that reporters had obtained about America’s role in Vietnam. The threat to national security wasn’t sufficiently immediate or specific to warrant infringing on the papers’ right to publish, the Court said at the time.

But today’s world is different, Strauss argues. It is easier to leak large amounts of sensitive information—and publication is no longer limited to a handful of media companies with strict ethical guidelines. What’s more, the ease with which information can be shared—digitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papers—means that a larger number of people can act as leakers. That can include those who don’t fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.

“[T]he stakes are great on both sides,” Strauss writes, “and the world has changed in ways that make it important to rethink the way we deal with the problem.”

Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic society—and a recognition that the judicial branch doesn’t claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.

What’s more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.

“[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise,” he writes. “Freedom of speech and the press taps into the most essential elements of life—how we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.”

—Adapted from an article that first appeared on the University of Chicago Law School website.

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The Free Speech Century

Geoffrey R. Stone, Lee C. Bollinger

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Freedom of expression toolkit: a guide for students

UNESCO is the United Nations agency with the specialized mandate to promote freedom of expression and its corollary freedom of the press and freedom of information. Over the decades, UNESCO has labored to promote these fundamental human rights across the globe, amongst practicing media professionals, policy-makers, politicians, governments, non-governmental organizations, academia, and more. The Freedom of Expression Toolkit: A Guide to the Concepts and Issues is a continuation of this ongoing effort.

Everyone should have all the necessary tools and mechanism to allow the free flow of information. Much has been written about freedom of expression, indeed it is one of the most debated concepts and issues of our times. However, few such publications are written with youth as the main target readers, especially for young women and men still in high schools and pre-university level. This Toolkit is one such tool targeted at high schools and pre-university students. Young women and men must be empowered and literate in the issues and concepts of freedom of expression in order to become a discerning citizen in a democracy.

• Why does freedom of expression matter?
• When is freedom of expression at risk?
• What are the conditions needed for freedom of expression to flourish?
• What are the special roles of journalist in freedom of expression?
• What about freedom of expression online?
• What can we do?
• What are the limitations?

These are some of the questions the Toolkit tries to answer through an easy and engaging manner. They are arranged into seven "tool boxes", each with a different focus. The first toolbox discusses about the concept and explains the importance of freedom of expression. The second toolbox highlights the issues that threaten freedom of expression including controlled media, intimidations, and obstacles in access to information, restrictive laws and regulations. In the third toolbox, readers are sensitized to the conditions needed for freedom of expression to flourish such as the rule of law and having free, independent and pluralistic media in addition to an active civil society.

A special section is devoted to addressing the role of press and of journalists in freedom of expression in the fourth toolbox. In addition to traditional media such as print, radio and broadcasting, the fifth toolbox also brings in discussion on the recent development in social media and networking especially their uses in freedom of expression. The sixth part of the Toolkit is designed to enable readers to bring theory into practices through a wide variety of exercises, projects, and thought-provoking questions including activities such as celebrating the annual World Press Freedom Day or setting up Media Monitoring site. Lastly, the final toolbox discusses about the dilemmas of freedom of expression and its limitations. In addition to the seven toolboxes, there is a “bonus material” section based on the case study of the fictional country called Zangara which is an amalgamation of real world events allowing readers to further explore the concepts and issues in greater depth.

#FreedomOfExpression

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Freedom of Expression: An Essay on Rights, Relation and Recognition

(Note: This essay is a shorter version …)*

[1]  In January 1995, a University of Michigan sophomore known as Jake Baker posted a short story to an Internet site devoted to explicit fiction.[1]  In January 1995, a University of Michigan sophomore known as Jake Baker posted a short story to an Internet site devoted to explicit fiction. 1  The story, "Pamela's Ordeal," graphically recounted the narrator's rape, torture, and murder of a woman who was given the same name as one of Baker's classmates. A university investigation found that, in addition to writing several similar stories, Baker had also engaged in a long email exchange with a Canadian man, in which the two had shared their desires to commit sexual violence against young women, discussed how they would go about it, and made vague plans to meet.

[2]  Based on this information, the university suspended Baker and banned him from campus. A week later, he was arrested and charged with the federal offense of transmitting threats in interstate or foreign commerce. The charges were later dismissed by the United States Court of Appeals for the Sixth Circuit, which ruled 2 to 1 that Baker's conduct did not amount to a threat under federal law. 2

[3]  The Baker case sparked intense controversy not only within the university, but across the country and on the Internet. On one side, Catharine MacKinnon and others asserted that Baker's story constituted a form of assaultive speech, which was deeply degrading to the woman that it named and threatening to her sense of safety. Others, including officials of the American Civil Liberties Union, responded that while the story was abhorrent, it was merely fiction or fantasy, fully entitled to constitutional protection. 3

[4]  In many ways, the Baker case is typical of contemporary disputes over freedom of expression. Whether they focus on hate speech, pornography, flagburning, cigarette advertising, abortion-clinic demonstrations, protecting the identities of sexual assault victims, tobacco advertising, violent entertainment, the National Endowment for the Arts, Internet regulation, or other issues, these controversies tend to have the same basic structure. 4  Those who advocate the regulation of a particular kind of expression contend that it causes serious harm to individuals, groups, or the community at large. Opponents are often skeptical about the seriousness of this injury. In any event, they argue, the First Amendment denies government the power to prevent such harm through the suppression of speech. 5

[5]  Of course, it is difficult to deny that speech can sometimes be regulated consistent with the First Amendment. Few, for example, would question the government's authority to punish incitement of violence or false advertising. 6  Yet we have no well-developed and generally accepted view of when regulation is legitimate. In the absence of any common ground to appeal to, First Amendment disputes seem increasingly bitter and irresolvable.

[6]  It is hard to see how this stalemate can be broken without a more general theory of the scope of free expression–a view that integrates both the justifications and the limits of this freedom into a coherent whole. This essay makes a start toward developing such a theory. Its central thesis is that freedom of speech is limited by the fundamental rights of other individuals and of the community.

Natural Rights, Social Welfare, and the First Amendment

[7]  As I have shown elsewhere, this idea was regarded as axiomatic when the First Amendment was adopted. 7  Eighteenth-century Americans drew on a variety of sources for their understanding of free speech, including the common law and the civic republican tradition. 8  But the most comprehensive framework that they looked to was provided by natural rights theory. According to this theory, freedom of speech is a right inherent in human nature as well as republican citizenship. Like all such rights, however, it is bounded by the rights of others. 9  The classic example is defamation. While I have a right to free speech, others have a right to reputation. Government is instituted to protect rights against wrongful injury. On this view, the state has not only the authority but the duty to restrict speech when it unjustifiably defames others.

[8]  Natural rights theory thus suggests a rather straightforward principle: that freedom of speech is limited by the rights of others, and that the law may protect these rights against expression that violates them. Although this principle was widely held when the First Amendment was adopted, it no longer holds a central place in American constitutional theory or doctrine. Instead, we now generally view First Amendment problems in terms of an opposition between freedom of speech and "state interests."

[9]  To understand this shift, we need to briefly explore the transformation of American jurisprudence after the Civil War. 10 During the late nineteenth and early twentieth centuries, the theory of natural rights gave way to a more positivist and utilitarian conception of law. On this view, rights are not inherent in individuals, but derive their force from the positive law of the state. The purpose of law is to promote social welfare, not to protect individual rights as such.

[10]  The advent of this view undermined the traditional rationale for protecting free expression. Rather than a right of nature or of democratic citizenship, free speech was represented as merely one interest to be weighed in the utilitarian calculus. There was nothing distinctive about speech that entitled it to special protection, or that placed it beyond the authority of the state to regulate like any other form of activity.

[11]  The central task of modern First Amendment thought has been to reconstruct a justification for freedom of speech within the framework of post-natural-rights jurisprudence. During the early twentieth century, leading defenders of the First Amendment such as Harvard law professor Zechariah Chafee, Jr., and Justices Oliver Wendell Holmes and Louis D. Brandeis emphasized the importance of free speech for democratic self-government and the search for truth. For these reasons, they argued, the social interest in free speech was so great that it should give way only where speech presented a "clear and present danger" to other important social interests. 11

[12]  By the middle of the century, the "clear and present danger" test had evolved into a general balancing of speech against other social interests. As Justice Hugo Black forcefully argued, this approach failed to provide reliable protection for speech. 12  In more recent years, free speech has once more come to be regarded as a right. But this revival of the idea of rights in First Amendment jurisprudence has not extended to the other values that may be harmed by speech. These values continue to be characterized as social interests or (since the state is regarded as the spokesman for such interests) as state interests.

[13]  In this way we have come to conceive of First Amendment issues as clashes between free speech rights and state interests–a term within which the rights of others have been absorbed. When the issue is posed in this way, we seem to face a tragic dilemma in which the more we protect speech, the more we must sacrifice other rights, and vice versa. It is for this reason above all that contemporary free speech controversies appear so intractable, and that the disputants so often seem to talk past each other. These problems, which go to the heart of modern First Amendment theory, should lead us to consider returning to a rights-based approach.

Free Speech in a Framework of Rights

[14]  In constructing a rights-based theory of the First Amendment, I shall draw on the liberal natural rights tradition identified with Locke and Kant–a tradition which, as we have seen, did much to shape the ideological background of the First Amendment, and which continues to represent a deep current in American thought. 13  On this view, rights are rooted in the concept of human liberty. The core meaning of liberty is self-determination: a free person is one who determines her own thoughts and actions, rather than being determined by something other than herself. 14 Natural rights theory then develops the content of rights by exploring what it means to be a free person in various spheres of life. These include (1) the individual's existence in the external world; (2) her inner life and its expression to others; (3) her social and political life; and (4) her intellectual and spiritual activity. 15  In the following sections, I shall show that these four aspects of liberty not only provide the major justifications for free speech, but also give rise to other fundamental rights. When speech violates these rights, I argue, it may properly be regulated unless its value is so great as to outweigh the injuries that it causes.

Free Speech and External Rights

[15]  The first, and simplest, way to understand freedom of speech is as an aspect of liberty in general–the exercise of an individual's natural capacities for thought and expression. On this view, free speech falls within the traditional natural rights to life, liberty, and property. 16  But of course other individuals also have a right to be secure in their persons and property. Speech violates this right when it amounts to an imminent assault; when it conveys a serious threat of future violence; or when it incites third parties to attack others. Since individual rights exist under the protection of the community, such speech may also constitute a breach of the public peace, and may thus result in criminal as well as civil liability.

Free Speech and Rights of Personality

[16]  To be fully free, a person must be free not only externally but also in her inner life. This brings us to a second category of rights, which I shall call rights of personality. Like the traditional triad of life, liberty, and property, these rights are rooted in our nature as autonomous beings. The focus of self-determination has shifted, however: rather than acting in the external world, the self now turns inward to shape its own intellectual and emotional life. Rights of personality reflect what it means to be a free person in this internal realm.

[17]  First Amendment rights may be understood in this way as well. In determining his own thoughts, beliefs, values, and emotions, an individual shapes his inner self or personality. He further realizes himself through the expression of his thoughts and feelings to others. It follows that unjustified restrictions on speech and thought are wrongful not merely because of the limits they impose on outward liberty, but also in a deeper way, because they obstruct the individual's right to autonomously determine, express, and realize his own personality.

[18]  At the same time, individuals also have other rights of personality, some of which may be violated by speech. First, speech can cause substantive injury through the intentional infliction of emotional distress. Second, I would argue that severely abusive speech infringes the inviolability of personality, in much the same way that offensive battery (an unauthorized touching that "offends a reasonable sense of personal dignity" 17 ) violates bodily integrity. Third, speech and related forms of conduct can constitute an invasion of privacy, or the right to maintain the integrity of one's personal life by preserving the boundary that separates it from other persons. Finally, defamation violates the right to reputation, which can be understood as the social dimension of personality.

Free Speech and Community

[19]  Self-determination takes place not only on an individual but also on a communal level. This leads to the third justification for free speech: that it is central to democratic self-government. In a classic statement of this view, Alexander Meiklejohn invokes the image of a traditional town meeting. Citizens must hear all sides of an issue, he argues, if they are to reach the wisest and most fully informed decisions. 18

[20]  For Meiklejohn, this image also suggests the appropriate limits of free speech. The town meeting cannot function unless its members observe some rules of order, such as the rule that forbids personal abuse in debate. Speech of this kind, he says, obstructs the deliberative process, and thus "threatens to defeat the purpose of the meeting." For this reason, it is not protected by the First Amendment. 19

[21]  This highlights a crucial point about the nature of free speech rights. When viewed in terms of general liberty or self-realization, free speech was an essentially individual right–a right that in principle could be exercised by a single individual, without any interaction with others. In contrast, political free speech can be understood as a relational right–a right to interact with others in a particular way. It is a right to engage in discourse with other individuals who have the same rights of citizenship and participation, and who share certain interests as a community. The right to political participation therefore carries with it a duty to respect the corresponding rights of other citizens and of the community itself. This limitation is not imposed from the outside, by the existence of other kinds of rights, but is an internal limit that arises from the very nature of the right to political speech.

Free Speech and the Search for Truth

[22]  The last major justification for free speech is that it is necessary for the pursuit of truth. In addition to the instrumental value that knowledge has in furthering other ends, classical theorists such as Milton and Mill hold that the search for truth has intrinsic value in developing people's intellectual capacities, and thereby realizing their nature as rational beings. 20

[23]  Once again, this rationale not only provides a basis for free speech, but also points to some constraints on that freedom. First, in asserting a right to intellectual freedom, an individual appeals to her status as a rational being. But this status is one that she shares with human beings in general. It follows that an individual cannot consistently assert this right and at the same time refuse to recognize others as rational beings. Second, as Professor Susan Williams demonstrates, in many ways truth is intersubjective, and can be attained only through communication with others. 21  To this extent, the search for truth also may be understood as a relational right which requires respect for other participants.

[24]  It is important to stress the limited role of these two constraints. I do not mean to imply that they provide an affirmative justification for regulating speech. For the liberal tradition, the coercive powers of government do not extend to matters of thought or belief as such; government may never restrict speech simply because of disagreement with it or fear that it will undermine the truth. Instead, my contention is simply that speech that violates these constraints has less value for the search for truth. This means that there is a weaker argument for protecting such speech in cases where it can be shown to violate other rights.

Conflicts of Rights

[25]  On the view outlined here, free speech must be exercised with due regard for the rights of others. It does not follow, however, that speech must always give way to other rights. In some cases, an apparent conflict can be resolved by adjusting the boundaries of the competing rights. Even when this is not possible, speech that infringes other rights is only presumptively wrongful, for it may have such value that it should be regarded as justified despite the injury that it causes.

[26]  There are three related ways of approaching conflicts of rights. The first is to balance the rights in order to determine which has more value. Of course, to do this we need a common standard by which to measure them. For the rights-based theory, that standard may be found in the four elements of liberty that justify these rights in the first place. Thus, rights have value as aspects of (1) external freedom, (2) internal freedom to develop and express one's personality, (3) freedom to participate in social and political life, and (4) intellectual and spiritual freedom to pursue meaning and truth. The ultimate question is which right, at the margin, is more important as an aspect of human liberty.

[27]  In contrast to balancing, which involves an external comparison of rights, the second approach explores whether there is any internal relationship between them. 22  For example, individuals cannot speak freely unless they feel secure against violence. In this sense personal security is the most basic of rights. Thus, speech should not be protected when it is used to seriously threaten the safety of others.

[28]  At the same time, it is important to recognize that the relationship between rights does not necessarily run in only one direction. Thus, while personal security is a necessary condition for freedom of speech, the converse is also true. Free speech is essential to political liberty, which the liberal democratic tradition regards as the ultimate safeguard of all other rights. 23  It follows that political speech should not be restricted on the basis of merely speculative fears of injury, but only when it poses a direct and substantial threat to other rights.

[29]  This discussion of the interrelatedness of rights suggests a further point: that rights are integral to a larger whole. This leads to a third way of resolving conflicts, which is to ask which right, under the circumstances, is most important to the system of constitutional liberty as a whole. For example, while individuals have a right to reputation, in the case of public officials that right must give way to the community's right to assess their character and performance, a right that is vital to democratic government. For this reason, the Supreme Court held in New York Times v. Sullivan that defamatory statements regarding the official conduct of public officials are constitutionally protected unless knowingly or recklessly false. 24

[30]  In some cases, then, speech should be protected despite the injury it causes to other rights. This principle is subject to an important constraint, however: an act of speech cannot be privileged merely because the speaker values the wrongful consequences of the act, but only for some other reason. For example, while an individual may have a right to threaten another in self-defense, there can be no right to threaten merely because one desires to invade another's right to personal security.

The Rights-based Theory and Contemporary First Amendment Jurisprudence

[31]  As a way of contrasting the rights-based theory with current free speech jurisprudence, I would like to consider the Supreme Court's 1989 decision in Florida Star v. B.J.F. 25  After B.J.F. was raped at knifepoint by an unknown assailant, she reported the crime to the county sheriff's department. A few days later, theFlorida Star published a full account of the rape which identified her by name. A jury later ordered the newspaper to pay B.J.F. $100,000 in damages for violating a Florida statute that made it unlawful to publish the names of sexual assault victims.

[32]  By a 6 to 3 vote, the Supreme Court overturned the award under the First Amendment. Justice Marshall's opinion for the majority frames the issue as a conflict between the press's right to publish truthful, lawfully obtained information, on one hand, and what he calls the "state interest" in protecting the privacy and safety of rape victims, on the other. Marshall recognizes that this is an "interest of the highest order," but asserts that, under the circumstances, the statute was not necessary to protect them, because the government itself had inadvertently given the Star's reporter access to B.J.F.'s name. 26  For this reason, the Court held the application of the law invalid under the "strict scrutiny" test, which holds that restrictions on the content of expression are presumptively unconstitutional and will be upheld only when they can be shown to be necessary to promote a compelling governmental interest.

[33]  Florida Star would look very different from a rights-based perspective. On this view, the statute's purpose was not to promote the interests of the state, but to protect the rights of the victim. The government's own failure to comply with the law should not have the effect of waiving B.J.F.'s rights, or relieving the newspaper of its own duty to respect them. Instead of applying a standard heavily weighted toward one side of the balance, the rights-based view would compare the two rights in terms of their value for human liberty. On one hand, the Star's action seriously invaded B.J.F.'s fundamental rights to privacy and personal security. On the other hand, it is difficult to see any important value served by disclosing her name, at least before anyone has been charged with the crime. Under the rights-based theory, then, the Supreme Court clearly came out the wrong way in Florida Star. 27

Hate Speech

[34]  Let us now explore how this theory would apply to the problem of hate speech–whether the First Amendment should protect expression that abuses or degrades others on the basis of such traits as race, ethnicity, gender, sexual orientation, and religion. 28  In approaching this issue, the theory begins with the concept of recognition.

[35]  For the natural rights tradition, rights are ultimately rooted in personhood. It follows that an individual cannot enjoy rights in relation to others unless they recognize him as a free person. Recognition is the most fundamental right that individuals have in relation to others–a right that lies at the basis of all their other rights. 29

[36]  From a rights-oriented perspective, the core problem with hate speech is that it denies recognition to its targets. In fact, I believe that hate speech can best be defined as expression that intentionally denies recognition to others, and thereby expresses hostility towards them. In addition to conflicting with the very basis of right, hate speech in many cases violates the concrete rights of individuals and the community. In such cases, I would hold that hate speech may be regulated, except where its value is sufficient to justify the injuries that it inflicts. In developing this view, it will be useful to begin with private hate speech, or that directed toward particular individuals, and then turn to the problem of public hate speech, such as that involved in the Skokie affair.

Private Hate Speech

[37]  In some cases, hate speech that relates to particular individuals will amount to an assault, threat, or incitement to violence. And of course group-based insults are also one of the most common forms of "fighting words." 30  In all these cases, the speech infringes the targets' right to personal security, and/or the community's right to the peace. 31  Private hate speech may also violate rights of personality, through intentional infliction of emotional distress, attacks on personal dignity, or invasion of privacy. Finally, hate speech contravenes the right to equality by denying all of these rights on the basis of race or other invidious grounds. 32

[38]  Insofar as they violate these rights, acts of private hate speech are presumptively wrongful under the rights-based theory. For this reason, they should be held unprotected unless they have sufficient value to justify the injuries that they cause.

[39]  As an illustration, consider the classic form of hate speech in the United States–the burning of a cross to express hostility toward African-Americans or other racial, ethnic, or religious minorities. Suppose that the Ku Klux Klan burns a cross at night in front of the home of an African-American family that has recently moved into a white neighborhood, for the purpose of terrorizing the family and causing them to move. It is difficult to imagine a more serious invasion of personal security. If cross-burning occurs inside the family's yard, it will also violate their property rights, as well as criminal laws against trespass and arson.

[40]  The Klansmen's conduct also infringes the family members' rights of personality. The act is a flagrant and deeply offensive intrusion into their private lives, and thus constitutes an invasion of privacy. In addition, it is difficult to conceive of a clearer case of intentional infliction of emotional distress.

[41]  Does cross-burning, when it is directed against particular individuals, have sufficient value to justify the injuries that it causes? Undoubtedly it constitutes a form of self-expression. As we have seen, however, an act of expression cannot be privileged on account of the very aspect that makes it wrongful in the first place. A person has no right to pursue her own self-realization when it is defined in terms of denying the self-realization of others, and is directed toward them.

[42]  It might also be argued that the Klansmen's conduct should be protected because it is intended, at least in part, to express a political view. Even if cross-burning is entitled to protection as political speech, however–an issue that we shall come to shortly–it does not follow that this protection should apply to acts directed against particular persons. The Klan could communicate its political message just as effectively by burning a cross elsewhere, without inflicting serious injuries to specific individuals. Or, if this is not the case, then the increased effectiveness arises solely from the wrongful aspect of the conduct, the terror and degradation that it inflicts on the family. For these reasons, cross-burning directed toward particular persons should not be protected as free expression.

[43]  So far, my claim has been that hate speech may be restricted when it falls within an unprotected category of speech, such as fighting words. Suppose, however, that a jurisdiction chooses to ban not fighting words in general, but only those based on race or other group-based traits. In R.A.V. v. City of St. Paul, the Supreme Court ruled 5 to 4 that such laws are unconstitutional. Such a selective ban, said Justice Scalia, would violate the basic principle that government may not discriminate based on the content of speech. 33

[44]  Justice Scalia's analysis in R.A.V. is extremely complex, and I have criticized it in some depth elsewhere. 34  But the short response is this. While ordinary assaults or fighting words violate the target's rights, hate speech strikes at the very existence of those rights, by denying the target's status as a person and a member of the community. In this way, hate speech inflicts a deeper injury, and thus calls for a stronger response, than more ordinary kinds of assaultive speech.

Public Hate Speech

[45]  Finally, let us turn to the most difficult and controversial problem–that of public or political hate speech. Suppose that (as in the Skokie case) a group of neo-Nazis or Klansmen plan to hold a march in full regalia through a predominantly Jewish or African-American neighborhood, in order to express their belief that those groups should be subjected to segregation, deportation, or genocide. 35  The question is whether such expression should be protected because of its political character.

[46]  The protection of political speech is correctly regarded as a central concern of the First Amendment. But while this right is fundamental, it is not absolute. Instead, as I have suggested, it is best understood as a relational right–a right to engage in discourse with one's fellow citizens, in a way that respects their own rights of membership and participation.

[47]  I would argue that political hate speech violates these rights in two main ways. First, it infringes the rights of target-group members to be treated as free and equal citizens who are capable of participating in self-government. In this way it contravenes their rights as members of the political community. Such speech also violates the integrity of the deliberative process by undermining the possibility of reasoned discourse. As Meiklejohn observes, such discourse depends on the existence of mutual respect among citizens. 36

[48]  Second, in a democratic society, the people not only govern but also are governed. Political hate speech violates the rights of its targets in this capacity as well. Individuals have a fundamental right to recognition by the community that governs them. This may be regarded as the core meaning of the Thirteenth and Fourteenth Amendments to the Constitution, which abolished slavery and extended the rights of citizenship to all Americans. But this duty of recognition, I would argue, is one that binds not only the community itself but also its members. As citizens, individuals have a right to share in the political power of the community. With this right comes a corresponding duty to use that power in accord with the same obligations that the community itself has. Thus, citizens have a duty to recognize those over whom they exercise political power. They breach this duty when they engage in hate speech.

[49]  For these reasons, political hate speech should be considered presumptively wrongful under the rights-based model. The question then becomes whether it should nevertheless be privileged because of its value as political speech.

[50]  Following Meiklejohn, we might regard the paradigm case of political speech as expression that is addressed to the political community regarding an issue that it must decide. Judged by this standard, political hate speech lacks full value for two reasons. First, it is directed not to the community as a whole, but only to part of it–those who are not minorities. Insofar as it addresses the latter at all, it treats them not as citizens, but as objects of hatred and contempt. Second, when hate speech proposes extreme measures like segregation, deportation, or genocide, it does not relate to a matter of public policy for the people to decide, for no group of people can have the right to impose such measures on others.

[51]  Of course, to say that hate speech lacks full value is not to say that it has no value at all. For example, it is sometimes argued that hate speech provides useful information about the prevalence of racism, or that it helps us develop the social virtue of tolerance. 37  Arguments of this sort do not, however, assert that hate speech has any value in itself, or that it makes a legitimate contribution to public debate. Instead, the speech is to be valued for something else that we may be able to find in it. This indirect value does not seem sufficient to outweigh the serious injuries that hate speech causes both to its targets and to the polity as a whole.

[52]  Nor should public hate speech be protected because of its contribution to the pursuit of truth. As I have suggested, the search for truth requires that human beings recognize one another as reasonable beings who are capable of participating in a common enterprise of inquiring after truth. Because hate speech denies recognition to others, it can make no direct contribution to this process. And, once more, while hate speech may have some indirect value in this respect, that value does not seem sufficient to outweigh the injuries that it causes to the rights of others. 38

[53]  However one resolves the difficult issues surrounding public hate speech, it is clear that, under the rights-based theory, there is a realm of thought and expression that is beyond the legitimate reach of the law. Thus freedom of thought can never properly be restricted, since a person's inner thoughts can never violate the rights of others. The same is true of expression that is not communicated to others. This right of private thought and expression probably should also apply to private conversations, and to internal expression within small groups. 39  Scientific and intellectual inquiry should also be protected; 40  expression comes within the sphere of law only when it is directed toward affecting the rights of others.

[54]  In conclusion, let us briefly return to the case with which we began, that of Jake Baker. Assuming that, when Baker posted his story to the Internet, he did not intend for it to be read by anyone who would reasonably regard it as expressing a serious intent to assault the woman that it named, he should not be held to have made a criminal threat. Baker clearly violated the woman's rights of personality, however. In addition to recklessly inflicting severe emotional distress, his conduct constituted a profound invasion of her right to personal dignity and inviolability. Finally, whatever value the story may have had as self-expression or a contribution to culture, it was not necessary for him to use the name of an actual person. Because he could have achieved the same ends without violating the rights of others, his conduct should not be protected under the First Amendment.

* This essay is a shorter version of Steven J. Heyman,  Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression , 78 BOSTON UNIVERSITY LAW REVIEW– (forthcoming Dec. 1998) [hereinafter  Righting the Balance ]. It was presented at the Chicago-Kent Legal Theory Workshop, and at the inaugural meeting of the Working Group on Law, Culture and Humanities held at Georgetown University Law Center, Washington, D.C., in March 1998. I am grateful to the participants in that session, especially Vincent Blasi, Charles Lawrence, Milton Regan, and Susan Williams, for their thoughtful comments on the issues raised by this essay, and to Alison Baldwin, Anita Bernstein, Jacob Corré, Michael Curtis, David Gerber, Carol Miller, Vincent Samar, and Steven Wilf for their reading of earlier drafts. I also learned much from conversations with Thomas Grey and Robert Post. Kerry Bartell, Jennifer O'Neill, and Lisa Weier provided valuable research assistance. Finally, I should like to express my deep gratitude for the research support provided by the Norman and Edna Freehling Scholars Fund, which made this project possible.

If you are outside the US and would like to obtain a copy of the long version of this essay (approximately 165 pages), contact the Editor at  [email protected] . back

• The facts of the Baker incident are recounted in United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), and United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997), as well as in news accounts such as Megan Garvey,  Crossing the Line on the Info Highway,  WASHINGTON POST, March 11, 1995, at H1. The short story is reproduced in Alkhabaz, 104 F.3d at 1497-98 n.1 (Krupansky, J., dissenting). back
• United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997). back
• See, e.g., All Things Considered  (National Public Radio broadcast, March 15, 1995) (transcript available on NEXIS, News library, Arcnws file) (remarks of Catharine MacKinnon); Agence France Presse,  Court Upholds E-mail as Free Speech,  Jan. 30, 1997 (transcript available on NEXIS, News library, Curnws file) (quoting Howard Simon, executive director of American Civil Liberties Union of Michigan, asserting that "[e]ven sick fantasies are free speech" protected by the First Amendment). back
• For the leading American cases on hate speech, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.),  cert. denied,  439 U.S. 916 (1978) (ruling that members of a neo-Nazi organization have a First Amendment right to march in the predominantly Jewish suburb of Skokie, Illinois), and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding that a city ordinance banning the display of swastikas, burning crosses, and like symbols violates the First Amendment). On pornography, see American Booksellers Assn. v. Hudnut, 771 F.2d 323 (7th Cir. 1985),  aff'd mem.,  475 U.S. 1001 (1986) (striking down the feminist anti-pornography ordinance drafted by Catharine MacKinnon and Andrea Dworkin). The Supreme Court held laws against flagburning unconstitutional inTexas v. Johnson, 491 U.S. 397 (1989). For a decision upholding limited restrictions on abortion-clinic demonstrations, see Madsen v. Women's Health Ctr., 114 S. Ct. 2516 (1994). In several cases, the Supreme Court has held that states may not prohibit the media from publishing the names of sexual assault victims. See, e.g.,Florida Star v. B.J.F., 491 U.S. 524 (1989), discussed below. For a decision on tobacco advertising, see Penn Advertising v. Mayor, 63 F.3d 1318 (4th Cir. 1995) (upholding Baltimore ordinance banning most outdoor advertising of cigarettes),  vacated and remanded,  116 S. Ct. 2575 (1996), aff'd on reconsideration,  101 F.3d 332 (4th Cir. 1996),  cert. denied,  117 S. Ct. 1569 (1997). Some recent developments on entertainment violence are described in Lawrie Mifflin,  Deal on Making Ratings for TV Specify Content,  NEW YORK TIMES, July 10, 1997, at A1, col. 1. This summer, in National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998), the Supreme Court rejected a First Amendment challenge to a law requiring the NEA to take account of "general standards of decency" in awarding grants to artists. In Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997), the Supreme Court struck down a federal law regulating indecency on the Internet. back
• It is important to note that those who support or oppose regulation often vary from one issue to another. Thus conservatives often support prohibitions on flagburning, while liberals oppose them; to a large extent, these positions are reversed on the regulation of cigarette advertising and anti-abortion demonstrations. back
• See  Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (Harlan, J.) (observing that an absolutist reading of the First Amendment "cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like"). back
• I trace the history of the American conception of freedom of speech in  Righting the Balance, supra  note *, Part I. back
• For the common-law understanding of liberty of the press, see 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *151-53 (St. George Tucker ed., 1803 & photo. reprint 1969). The civic republican approach is best represented by JOHN TRENCHARD & THOMAS GORDON, CATO'S LETTERS (Ronald Hamowy ed., 1995) (London 6th ed. 1755) [hereinafter CATO'S LETTERS]. back
• A classic statement of the natural rights view appears in this passage by the Jeffersonian Republican jurist St. George Tucker: Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject, without restraint, except as to the injury of any other individual, in his person, property, or good name. St. George Tucker,  Of the Right of Conscience; and of the Freedom of Speech and of the Press,   in  1 BLACKSTONE,  supra note 8, app. G, at 11. back
• For a valuable account of this transformation, see MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992). back
• See  ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH (1920); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). For excellent accounts of the development of modern First Amendment jurisprudence, see MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM (1991); David M. Rabban,  The Emergence of Modern First Amendment Doctrine,  50 UNIVERSITY OF CHICAGO LAW REVIEW 1205 (1983); David M. Rabban,  Free Speech in Progressive Social Thought,  74 TEXAS LAW REVIEW 951 (1996). back
• See, e.g.,  Konigsberg v. State Bar, 366 U.S. 36, 60-62, 74-75 (1961) (Black, J., dissenting). back
• For some contemporary works in this tradition, see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974); JOHN RAWLS, ATHEORY OF JUSTICE (1971). back
• On liberty as self-determination, see JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING bk. II, ch. 21 (Peter H. Nidditch ed., 1975) (4th ed. 1700); IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS *446-47 (Lewis W. Beck trans, 2d ed., 1990); IMMANUEL KANT, THE METAPHYSICS OF MORALS *213-14 (Mary Gregor trans., 1991); HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT §§ 5-7 (Allen W. Wood ed., H.B. Nisbet trans., 1991) [hereinafter HEGEL, PHILOSOPHY OF RIGHT]. back
• In order to avoid the awkwardness of "his or her," I shall alternate between masculine and feminine generic pronouns. back
• See, e.g.,  CATO'S LETTERS,  supra  note 8, No. 62 (treating freedom of thought and speech as aspects of natural liberty). back
• RESTATEMENT (SECOND) OF TORTS §§ 18-19 (1965). back
• ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 24-27 (1960). back
• Id.  at 24-25. back
• See  JOHN MILTON, AREOPAGITICA,  in  AREOPAGITICA AND OF EDUCATION (George H. Sabine ed., 1951) (1644); JOHN STUART MILL, ON LIBERTY ch. 2 (David Spitz ed., 1975) (1859). back
• Susan H. Williams,  A Feminist Theory of Truth  (forthcoming). back
• On this approach, see JEREMY WALDRON,  Rights in Conflict, in  LIBERAL RIGHTS 203 (1993). back
• See  Palko v. Connecticut, 302 U.S. 319, 327 (1937) (observing that freedom of speech and thought "is the matrix, the indispensable condition, of nearly every other form of freedom"). back
• New York Times v. Sullivan, 376 U.S. 254 (1964). back
• Florida Star v. B.J.F., 491 U.S. 524 (1989). back
• Id.  at 533-34, 537-39. back
• A more difficult problem would be presented in contexts where a substantial public interest would be served by publication, such as reporting public proceedings in a criminal trial.  See, e.g.,  Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975). back
• The literature on hate speech is vast. For some collections of major writings, see HENRY LOUIS GATES ET AL., SPEAKING OF RACE, SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND CIVIL LIBERTIES (1994); MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT (1993); HATE SPEECH AND THE CONSTITUTION (Steven J. Heyman ed., 1996). On the history of the issue, see SAMUEL WALKER, HATE SPEECH: THE HISTORY OF AN AMERICAN CONTROVERSY (1994). back
• For a discussion of recognition in Hobbes, Locke, and other early modern natural rights theorists, see Steven J. Heyman,  Hate Speech and the Theory of Free Expression,   in  HATE SPEECH AND THE CONSTITUTION,  supra  note 28, at xli-xlii, xlvii-xlix [hereinafter Heyman,  Hate Speech ]. The concept of recognition and its relationship with right are more fully developed in later works, especially those of Fichte and Hegel.  See, e.g.,  J.G. FICHTE, SCIENCE OF RIGHTS (A.E. Kroeger trans., 1889) (1796); HEGEL, PHILOSOPHY OF RIGHT,  supra  note 14, §§ 36, 57, 71, 84-85, 95, 331; G.W.F. HEGEL, PHENOMENOLOGY OF SPIRIT §§ 178-96 (A.V. Miller trans., 1977) (5th ed., J. Hoffmeister ed., 1952).  See   generally  AXEL HONNETH, THE STRUGGLE FOR RECOGNITION (1995); ROBERT R. WILLIAMS, RECOGNITION (1992). For an excellent discussion of recognition and its relationship to contemporary controversies on campus, see Charles Taylor,  The Politics of Recognition,  in MULTICULTURALISM AND "THE POLITICS OF RECOGNITION" 25-73 (Amy Guttmann ed., Princeton University Press, 1992). back
• In Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Supreme Court ruled that the First Amendment did not protect "insulting or 'fighting' words," which it defined as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." I defend a limited version of theChaplinskydoctrine in  Righting the Balance, supra  note *, Part IV.A back
• A 1989 incident at Arizona State University provides a dramatic example of all of these offenses. A fight started between a black student, Toby Wright, and a white fraternity member, Sean Hedgecock, after Hedgecock allegedly said, "Fuck you, nigger." Two dozen fraternity members then emerged from their house and surrounded Wright and two other blacks, chanting racial slurs. The fight was broken up by police, who alleged that Hedgecock continued to shout epithets and threatened to "get those niggers and kill them." Later that night, Hedgecock saw two other black students and shouted, "Those are the niggers! They're back!" Several hundred people then flooded out of nearby fraternity houses and surrounded the blacks, watching while a group of white fraternity members beat them up. The incident is recounted in Jon Wiener, Words That Wound: Free Speech for Campus Bigots?,  250 THE NATION 272 (Feb. 26, 1990). back
• Of course, this is a central theme of the critical-race-theory literature on hate speech.  See, e.g., MATSUDA ET AL.,  supra note 28;  see also  CATHARINE A. MACKINNON, ONLY WORDS (1993) (arguing that hate speech, pornography, and racial and sexual harassment constitute denials of equality. On the right to equality within the rights-based theory, see Heyman,  Hate Speech , supra  note 29, at lviii-lix. back
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). back
• See  Heyman,  Hate Speech,   supra  note 29, at xliii-xlvi. back
• For the Skokie litigation, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.),  cert. denied,  439 U.S. 916 (1978); Village of Skokie v. National Socialist Party of America, 373 N.E.2d 21 (Ill. 1978). The controversy generated a rich and extensive literature. See, e.g.,  LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA (1986); DONALD DOWNS, NAZIS IN SKOKIE: FREEDOM, COMMUNITY, AND THE FIRST AMENDMENT (1985); ARYEH NEIER: AMERICAN NAZIS, THE SKOKIE CASE, AND THE RISKS OF FREEDOM (1979); Raphael Cohen-Almagor,  Harm Principle, Offense Principle, and the Skokie Affair, 41 POLITICAL STUDIES 453 (1993),  reprinted in  HATE SPEECH AND THE CONSTITUTION,  supra  note 28, at 277-94; Daniel A. Farber,  Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan, and the Enduring Significance of  Cohen v. California, 1980 DUKE LAW JOURNAL 283. back
• MEIKLEJOHN,  supra  note 18, at 69-70. back
• For the latter argument, see BOLLINGER,  supra  note 35. back
• One useful way to explore this question is to ask whether we believe that it is actually desirable that such views be publicly expressed, in the sense that the values underlying free speech and other rights are best served if those who hold such views openly express them, rather than keeping those views to themselves. Meiklejohn, for example, argues that if political views are "responsibly entertained by anyone, we, the voters, need to hear them"; such views "must be expressed, not because they are valid, but because they are relevant." MEIKLEJOHN,  supra  note 18, at 28. Mill discusses the search for truth in similar terms. MILL, supra  note 20, at 43-44. It seems highly doubtful, however, that we would apply this position to public hate speech. Instead, we would be more likely to say that such speech is so inconsistent with the respect owed to others and with the requirements of reasonable discussion that it is improper to introduce it into public discourse, regardless of whether there is a right to do so. We would regard the disappearance of hate speech as a gain rather than a loss for public discussion. If this is true, then it is clear that the value of public hate speech does not outweigh the injuries it causes. back
• An example is provided by the facts of Brandenburg v. Ohio, 395 U.S. 444 (1969), in which a dozen Klansmen gathered on private party to burn crosses and make racist and anti-Semitic speeches. back
• For a similar position, see Mari J. Matsuda,  Public Response to Racist Speech: Considering the Victim's Story,   in  MATSUDA ET AL.,  supra  note 28, at 40-41. back
• Steven J. Heyman

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Essays on Freedom of Expression

Freedom of expression stands as a cornerstone of democratic societies, enabling individuals to voice their opinions, challenge ideas, and contribute to the marketplace of ideas. Recognizing the critical role of this fundamental right, GradesFixer has curated an extensive collection of essay samples on freedom of expression. These essays delve into the various dimensions of this right, exploring its implications, challenges, and the balance between freedom and responsibility in the digital age.

A Rich Tapestry of Perspectives on Freedom of Expression

Our collection encompasses a wide array of topics related to freedom of expression, from legal and ethical analyses to case studies of censorship , digital rights, and the impact of social media on public discourse. By offering essays that cover such a broad spectrum of issues, we aim to provide students with a comprehensive understanding of the complexities surrounding freedom of expression in various contexts.

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Freedom of Expression

FREEDOM OF EXPRESSION

Freedom of speech, of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its “preferred position” in our constitutional hierarchy, the nation’s commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI — hardly ancient history — that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government’s power to punish “seditious” and “subversive” speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were “fit for something better than slavery and cannon fodder.” Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution’s framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish “any false, scandalous and malicious writing” against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who “by speaking or writing maintains that owners have no right of property in slaves” was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”

From then on, the right to freedom of expression grew more secure — until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the “clear and present danger” test by holding that speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES “PROTECTED SPEECH” INCLUDE?

First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination — and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are “indivisible.”

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government’s interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of “national security” to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the “Pentagon Papers” by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country’s involvement in Vietnam, was leaked to the press. When the Times ignored the government’s demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through “prior restraint,” block publication of any material unless it could prove that it would “surely” result in “direct, immediate, and irreparable” harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government’s claims of “national security” must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called “fighting words … which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected. This decision was based on the fact that fighting words are of “slight social value as a step to truth.”
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished — only if the offended official can prove the falsehoods were published with “actual malice,” i.e.: “knowledge that the statement was false or with reckless disregard of whether it was false or not.” Other kinds of “libelous statements” are also punishable.
• Legally “obscene” material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce’s classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed “legally obscene.” It must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the “Miller test” have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: “I know it when I see it.” But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It’s the foundation of self-fulfillment. The right to express one’s thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself — and as such, deserves society’s greatest protection.

It’s vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one’s own conclusions against opposing views. Therefore, all points of view — even those that are “bad” or socially harmful — should be represented in society’s “marketplace of ideas.”

It’s necessary to our system of self-government and gives the American people a “checking function” against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual’s freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, “Speech Acts” and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights, Anchor Press, 1995.

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Freedom of expression in the Digital Age: Internet Censorship

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Protecting Freedom of Expression on the Campus Essay

Underlining is to catch key points, questions and comments, works cited.

An annotated version of “Protecting Freedom of Expression on the Campus” by Derek Bok in The Boston Globe.

*and these stars are where I have a question or opinion on a statement*

For several years, universities have been struggling with the problem of trying to reconcile the rights of free speech with the desire to avoid racial tension. In recent weeks, such a controversy has sprung up at Harvard. *Two students hung Confederate flags in public view, upsetting students who equate the Confederacy with slavery. A third student tried to protest the flags by displaying a swastika*.

These incidents have provoked much discussion and disagreement. Some students have urged that Harvard require the removal of symbols that offend many members of the community. Others reply that such symbols are a form of free speech and should be protected.

Different universities have resolved similar conflicts in different ways. *Some have enacted codes to protect their communities from forms of speech that are deemed to be insensitive to the feelings of other groups*. Some have refused to impose such restrictions.

It is important to distinguish between the appropriateness of such communications and their status under the First Amendment. The fact that speech is protected under the First Amendment does not necessarily mean that it is right, proper, or civil. I am sure that the vast majority of Harvard students believe that hanging a Confederate flag in public view–or displaying a swastika in response–is insensitive and unwise because any satisfaction it gives to the students who display these symbols is far outweighed by the discomfort it causes too many others.

I share this view and regret that the students involved saw fit to behave in this fashion. Whether or not they merely wished to manifest their pride in the South–or to demonstrate the insensitivity of hanging Confederate flags by mounting another offensive symbol in return–they must have known that they would upset many fellow students and ignore the decent regard for the feelings of others so essential to building and preserving a strong and harmonious community.

*To disapprove of a particular form of communication, however, is not enough to justify prohibiting it*. We are faced with a clear example of the conflict between our commitment to free speech and our desire to foster a community founded on mutual respect. Our society has wrestled with this problem for many years. *Interpreting the First Amendment, the Supreme Court has clearly struck the balance in favor of free speech*.

While communities do have the right to regulate speech in order to uphold aesthetic standards (avoiding defacement of buildings) or to protect the public from disturbing noise, rules of this kind must be applied across the board and cannot be enforced selectively to prohibit certain kinds of messages but not others.

Under the Supreme Court’s rulings, as I read them, the display of swastikas or Confederate flags clearly falls within the protection of the free-speech clause of the First Amendment and cannot be forbidden simply because it offends the feelings of many members of the community. These rulings apply to all agencies of government, including public universities.

Although it is unclear to what extent the First Amendment is enforceable against private institutions, I have difficulty understanding why a university such as Harvard should have less free speech than the surrounding society–or than a public university.

One reason why the power of censorship is so dangerous is that it is extremely difficult to decide when a particular communication is offensive enough to warrant prohibition or to weigh the degree of offensiveness against the potential value of communication. If we begin to forbid flags, it is only a short step to prohibiting offensive speakers.

I suspect that no community will become humane and caring by restricting what its members can say. The worst offenders will simply find other ways to irritate and insult.

In addition, once we start to declare certain things “offensive,” with all the *excitement and attention* that will follow, I fear that much ingenuity will be exerted trying to test the limits, much time will be expended trying to draw tenuous distinctions, and the resulting publicity will eventually attract more attention to the offensive material than would ever have occurred otherwise.

*Rather than prohibit such communications, with all the resulting risks, it would be better to ignore them since students would then have little reason to create such displays and would soon abandon them*. If this response is not possible–and one can understand why–the wisest course is to speak with those who perform insensitive acts and try to help them understand the effects of their actions on others.

Appropriate officials and faculty members should take the lead, as the Harvard House Masters have already done in this case. *In talking with students, they should seek to educate and persuade, rather than resort to ridicule or intimidation*, recognizing that only persuasion is likely to produce a lasting, beneficial effect. Through such efforts, I believe that we act in the manner most consistent with our ideals as an educational institution and most calculated to help us create a true understanding, supportive community.

Annotations on “Protecting Freedom of Expression on the Campus” by Derek Bok.

The problem of freedom of speech on campus is one of the main problems and a lot of people face this problem from the point of view of offenses and discrimination. How do these notions coincide? People usually want to express what they think in a liberal country, but there are people whose opinions about this or that problem offenses to other people. This problem is rather up to date in the racial and ethnic discrimination situations when one side has the right to express their opinion, and the other is offended and abused. The problem of freedom of speech and racial discrimination should be limited, especially on campus.

The situation is rather contestable in the first paragraph. It is impossible to protect neither of the sides: those two Harvard students, who hung the flag of Confederacy, which was rather offensive for some people, as the flag was the symbol of slavery, on the one hand, and one student, who put the swastika near the flag, on the other.

The third paragraph tells about the fact that some campuses provided some limitations to offense the other ethnical groups. The questions are how they did this and whether the strategy offered was effective.

In the sixth paragraph the ways out of the problem are discussed. The prohibition of expressing the opinion against the minorities will bring the biggest dissatisfaction and demonstrative reaction to the situation.

Further, in the sixth paragraph, the First Amendment of the Constitution is discussed. It is impossible to forbid students to express their opinions in reference to the other nationalities in the form, which does not sound rude, but is rather offensive to others as it will limit them in their right of free expression of their thoughts. On the other hand, the offenses from other students of the racial minority are the violation of the law about racial discrimination.

Paragraph seven offers that students may be forbidden putting the aesthetic beauty of the campus buildings under hazard, making noise, but this is not the way out, as students have a lot of other ways to announce their opinion, which combat the dignity of some people. The problem is rather sharp and at the same time, it should be solved rather tenderly.

Paragraph 12. The situation is rather complicated as students have the right to free expression of their thoughts and to forbid it for them means that a lot of attention will be paid to the problem, which is rather unnecessary in the situation. Two different ethical freedoms and obligations were faced: the freedom of speech and obligation for respect and racial discrimination avoidance.

Derek Bok’s idea about ignoring all the offenses is rather effective (paragraph 13). For the first time, it will be impossible to avoid offenses, abjection, and public assistance, as all of the comments should be ignored. The result of such a strategy should be magnificent, as abhorrence generates abhorrence, and mutual offenses never stop. The silence of the injured will give the result that the offender will get tired of the situation and will stop announcing his opinion aloud as no reaction is seen. It is the life experience and the result of a lot of experiments that people offense the others only with the aim to be perceived higher than the others are, to show his/her priority. When the reaction of the injured follows, this is the main factor to continue offenses. No reaction, no further actions. This is the main way out of the situation. Ignoring the offenses is one of the ways to stop these offenses, as the direct prohibition will lead to the demonstrative reaction.

The 14 th paragraph of the article shows that communication is the main way to understanding, and it is teachers’ obligation to stream the conversation in the right direction to avoid racial and ethnic offenses.

Bok, Derek. “Protecting Freedom of Expression on the Campus.” The Boston Globe.1991. Web.

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IvyPanda. (2024, March 13). Protecting Freedom of Expression on the Campus. https://ivypanda.com/essays/protecting-freedom-of-expression-on-the-campus/

"Protecting Freedom of Expression on the Campus." IvyPanda , 13 Mar. 2024, ivypanda.com/essays/protecting-freedom-of-expression-on-the-campus/.

IvyPanda . (2024) 'Protecting Freedom of Expression on the Campus'. 13 March.

IvyPanda . 2024. "Protecting Freedom of Expression on the Campus." March 13, 2024. https://ivypanda.com/essays/protecting-freedom-of-expression-on-the-campus/.

1. IvyPanda . "Protecting Freedom of Expression on the Campus." March 13, 2024. https://ivypanda.com/essays/protecting-freedom-of-expression-on-the-campus/.

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IvyPanda . "Protecting Freedom of Expression on the Campus." March 13, 2024. https://ivypanda.com/essays/protecting-freedom-of-expression-on-the-campus/.

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