Do Not Take Your Freedom of Speech for Granted

If there be a “Dean” of First Amendment studies, it has to be Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law, at The University of Chicago. Author and editor of dozens of articles, monographs, and casebooks on freedom of speech and other fundamental rights, Professor Stone was also the prime mover of The University of Chicago Principles on Free Speech, to which Cleveland State University adheres. Here, Professor Stone chronicles the difficult path our nation traversed in championing the rights of free expression.

Professor Stone,….your witness.

Today in the United States, we take our right to free speech pretty much for granted. At present, the government has almost no authority, except in the most extraordinary of circumstances, to punish or silence someone because her speech might anger or upset others or cause them to act unlawfully. The question most often raised today is whether we now have too much free speech, rather than too little. It is important to understand that we reached this point in our history only as the result of a long and concerted effort to give real meaning to the First Amendment. Indeed, until quite recently, the freedom of speech we today take for granted did not exist in our nation.

In 1791, our nation adopted the First Amendment to our Constitution. It provides, among other things, that “Congress shall make no law . . . abridging the freedom of speech.” Taken literally, this sounds like a strong guarantee of the freedom of speech. But what does “abridge” mean in this context, and what constitutes the “freedom of speech”? Does it mean the right to say anything, anywhere, anytime?

Only seven years after our nation adopted the First Amendment, Congress, under the control of the Adams administration, enacted the Sedition Act of 1798, which made it a crime for any person to criticize the President, the Congress or the Government of the United States, with the intent to bring them into contempt or disrepute, unless they could prove that their statement was factually true.  Thus, even critical statements of opinion could be punished. The Adams administration used the Sedition Act to prosecute and convict a broad range of critics of its policies, and the federal courts upheld the constitutionality of the Act on the grounds that the First Amendment did not protect the freedom of individuals to criticize the government or government officials unless they could prove their statements to be true.

In the late nineteenth century, the federal government and every state in the nation, inspired by the religious fervor of Anthony Comstock, enacted legislation making it a crime for any person to sell, view or possess any book, magazine, image or movie that might suggest to the young any thoughts of a sexually impure nature. As a result, it became a crime throughout the United States for anyone to sell, buy or possess any material that dealt in any way with sex, including even books and articles discussing the means of contraception.

During World War I, President Woodrow Wilson evinced little patience for dissent.  He warned that disloyalty “must be crushed out” of existence, and insisted that disloyal individuals “had sacrificed their right to civil liberties.”  In November 1917, Attorney General Charles Gregory, referring to Americans who criticized the war or the draft, declared: “May God have mercy on them, for they need expect none from . . . an avenging government.” Soon thereafter, Congress enacted the Sedition Act of 1918, which declared it a crime for any person to criticize the President, the Congress, the government, the Constitution, the military or the flag of the United States. The government prosecuted two thousand individuals during World War I for criticizing the war or the draft, and they were typically sentenced to prison terms ranging from ten to twenty years.

This time, though, for the first time in our history, the Supreme Court of the United States accepted the challenge of interpreting the First Amendment. In a series of decisions, the Court held that the First Amendment does not protect the speech of an individual who criticizes the government if he should reasonably have known that his speech could have a “bad tendency.”[1] That is, if an individual publicly criticized the war or the draft, even if his purpose was to influence public opinion in the electoral process, he should reasonably have known that his speech might cause some men eligible for the draft to refuse induction. For that reason, and even if that was not his intent, his speech was not protected by the First Amendment. On this view of the First Amendment, thousands of Americans were imprisoned for criticizing the war or the draft.

In these cases, though, Justices Oliver Wendell Holmes and Louis Brandeis dissented from the Court’s approach, arguing that the freedom of speech is essential to a free society and that “the best test of truth is the power of the thought to be accepted in the marketplace of ideas.”[2] Thus, in their view, speech can constitutionally be punished because of the message it communicates only if it creates a “clear and present danger” of serious harm.[3] But theirs was a dissenting point of view.

Three decades later, in 1951, in Dennis v. United States,[4] the Supreme Court upheld the convictions of all of the leaders of the Communist Party of the United States for allegedly advocating the overthrow of the government. Although the Court at this time purported to embrace the Holmes-Brandeis clear and present danger standard, the justices diluted the standard by reasoning that how clear and present the danger must be depends upon its gravity. The more grave the danger, the less clear and present it must be. Because any effort to overthrow the government poses a grave danger, the Court held that the speech could be punished if it had even the possibility of encouraging such behavior. As a result of this decision, thousands of Americans across the nation were imprisoned, fired, and expelled from universities because of their Socialist or Communist beliefs or associations.

At roughly the same time as its decision in Dennis, the Supreme Court also held that an individual who gave a speech on a provocative subject could be criminally punished if his speech had the potential to anger members of the audience and might “cause” them to respond to his speech with violence or disorder.[5] In effect, the Court endorsed what has come to be known as the “heckler’s veto,” which effectively enables opponents of a speaker to conscript the police to shut him down simply by acting angry.

All of this began to change in the last half-century. Learning the lessons of its mistakes, the Court gave ever-increasing protection to the freedom of speech, fully embracing the Holmes-Brandeis position. During the Civil Rights era, for example, the Court held that Southern police could not shut down and arrest civil rights marchers because white members of the community threatened to respond with violence.[6] The Court held that an individual cannot constitutionally be punished for her speech on the theory that it might incite others to violate the law unless the government could prove that she intended that result and that her speech created a clear and present danger of grave harm.[7] The Court held that the New York Times had a constitutional right to publish leaked classified information unless the government could prove that it would cause a clear and present danger of grave harm to the nation.[8] The Court has held that sexual expression of even the most explicit nature cannot constitutionally be restricted for consenting adults.[9] And the Court has held that the government cannot constitutionally punish the expression of even the most offensive viewpoints unless the clear and present danger test is satisfied.[10]

To cite some recent examples, the Supreme Court in the last decade or so has held that the government cannot constitutionally punish even highly offensive speech because it causes emotional distress in others,[11] that it cannot constitutionally prohibit even highly explicit sexual speech on the Internet in order to protect children from being exposed to it because that would impair the constitutional right of adults to view such material if they wish to do so,[12] that a public school cannot constitutionally discipline a student for using even  extreme profanity in a cellphone message posted outside of school even if the message harshly criticizes the school and its programs,[13] and that the government cannot constitutionally refuse to register trademarks that use hateful words and images because, in the Court’s words, “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”[14]

We today live in a world in which government restrictions on our ability to express our thoughts on even the most controversial issues are almost wholly prohibited. We live in the free and open society that Holmes and Brandeis imagined. It can be challenging and upsetting. But if we did not live in that world, then the Civil Rights movement could have been squelched, the Women’s Movement might not have carried the day, and the Gay Rights Movement could have been suppressed. We live in a better, more just and more equal world today precisely because we have embraced what we have come to understand as the central tenets of the First Amendment. In short, we should not trust the government to tell us what we may and may not say. This is an achievement we should not take for granted. To the contrary, it is one we should celebrate as we test our own beliefs as well as the beliefs of others well into the future.

[1] See, e.g., Gitlow v. New York, 268 U.S. 652 (1925).

[2] See Abrams v. U.S., 250 U.S. 616, 630 (1919)(Holmes, J., dissenting). Holmes’s quote ends with the word “market” rather than “marketplace of ideas.” The phrase “marketplace of ideas” was first used by Justice William O. Douglas in U.S. v. Rumley, 345 U.S. 41, 56 (Douglas, J., concurring).

[3] See id. at 627. Holmes uses the phrase “clear and imminent danger” here; “clear and present danger” was used by Holmes in Schenck v. United States, 249 U.S. 47, 52 (1919) and, of course, became the name of the test.

[4] 341 U.S. 494 (1951).

[5] See Feiner v. New York, 240 U.S. 315 (1951).

[6] See Edwards v. South Carolina, 372 U.S. 229 (1963).

[7] Id. at 238.

[8] New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

[9] See Butler v. Michigan, 352 U.S. 380 (1957)

[10] See e.g., Cohen v. California, 403 U.S. 15 (1971).

[11] Snyder v. Phelps, 562 U.S. 443 (2011).

[12] Ashcroft v. ACLU, 542 U.S. 656 (2004).

[13] Mahanoy Area School District v. B.L. (2021)

[14] Matal v. Tam, 582 U.S. ___ (2017)