Freedom of Speech in US Court History

Freedom of speech is a fundamental human right. True, but the governments have tended to restrict this right under certain conditions. I’m going to look at some US Supreme court decisions today, and the court’s reasoning behind such restriction of this right. Let’s begin.

Schenck vs. US

In June 1917, the US government passed the Espionage Act which made it illegal to make “false statements with intent to interfere with the operation or success of the military or naval forces of the US or to promote the success of its enemies...” In short, the US government imposed strong restrictions on freedom of speech during a national threat, to expedite process to winning the war. Charles T. Schenck, general secretary of the US Socialist Party which opposed the national military draft, printed 15,000 leaflets calling for men to resist military service. He was convicted 3 times and sentenced to prison for 10 years in prison each time. The Supreme Court opened in Jan. 9, 1919. Schenck argued that Espionage Act was unconstitutional and his First Amendment Rights. Oliver Wendell Holmes, Jr. represented the court ruling that “words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” So called the Clear and Present Danger Clause, the reasoning was that a person couldn’t say “fire” in a theater room with a bunch of people when a fire didn’t happen. Such an action would cause unnecessary harm (“Substantive evil”). So, right to freedom of speech could be restricted when public welfare was in danger, and when an individual’s right to speech imposed further substantive threat to the public safety and welfare itself.

Gitlow vs. New York

Benjamin Gitlow, a local assemblyman, and Alan Larkin were arrested by New York City polic officers for criminal anarchy. These two were communists and publishers of The Revolutionary Age where they printed “The Left Wing Manifesto.” The document called for the “violent overthrow of the U.S. government. Gitlow obviously evoked his first amendment rights and argued that his act didn’t result in a violent response. The state court advocated for these guy’s conviction. But Justice Edward T. Sanford upheld Gitlow’s conviction, and held that the First Amendment was applicable to state governments through the due process clause of the 14th amendment, incrementing the federal authority over state governments. The court rejected the “clear and present danger” test and instead took hold of the “bad (dangerous) tendency” test. The reasoning was the following: there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views.…Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.…If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question.…But the indictment alleges the publication and nothing more. Ideas are presented for beliefs The manifesto was published with an intention to provoke an uprising. Thus the ruling enabled prohibitions on speech that simply advocated violence. Serious censorship. In the 1930s the so called “Bad Tendency Doctrine” was dismissed. As history progressed the extent of types of speech government could suppress became more restrictive, but the idea of such government restriction still persisted. For example, in Chaplinsky v. US (1942), the Court established the “fighting words” doctrine dictating that laws restricting insulting language with intent of provoking violent responses are not violations to the First Amendment. Today the court upholds the “preferred position doctrine” dictating that the limits of free speech should be associated with real threats, but that the court should prefer to remove such restrictions where such are unnecessary. Thus, it calls for minimum regulation on freedom of speech.

Hustler Magazine v. Falwell

The Hustler magazine was famous for its explicit pictures of nude women. Jerry Falwell, a protestant minister, felt offended when a parody ad targeted him depicting him having an incestuous relation with his mother. The case was taken up by the Supreme Court. Falwell’s case: Hustler magazine’s parody ad was libel which couldn’t ”reasonably be understood as describing actual facts about Falwell or actual events in which he participated,” and intended to inflict emotional distress on a public figure. Let’ see the US Supreme Court verdict. "At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions." The first amendment envisioned a society were unfettered public debate would promote accountability among public figures who “shaped events in areas of concern to society at large.” Though false statements were lacking in value, the “breathing place” that free expression needed to proliferate such debate and public scrutiny must tolerate such false statements, unless such statements themselves brought chilling effect upon the very right of freedom of speech. Infliction of emotional harm is bad. But in the case of public figures, penalizing such speeches regardless of the factual validity only on the basis of emotional effects would potentially harm active political discourse. Satirists and political cartoonists would be subject to damage awards. Falwell fights back: the Hustler parody was “outrageous.” But what is outrageous? The term is subjective, and is not a robust standard to place justice on. So long as the speech was not “obscene” the court ruled that Hustler’s parody was ok (obscenity wasn’t protected under the first amendment).

Other important cases on freedom of speech include: Tinker vs. Des Moines, Bethel School District vs. Fraser, Texas vs. Johnson , Morse vs. Frederick, Citizen United Vs. Fed Election Commission, etc. Hope this provides you with a general picture of the idea behind restriction of freedom of speech in the US. Hoped this helped!