Civil liberties: Free speech
Free speech has been bestowed upon Americans as a natural human right since the first amendment in which freedom of expression was enshrined in the Bill of rights. The freedom of speech which is part of the civil liberties that Americans enjoy states that “the Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In the recent years the freedom of speech has reached a new frontier in the US as a result of the explosion of the internet technology. This essay analyzes a short history of free speech, how U.S. Supreme Court decisions have affected free speech and where I believe free speech is headed in future.
For many decades, there have been many issues that emanated from the freedom of speech until Amendment1 that garnered much attention due to the increasingly negative and violent expressions. Amendment 1 protects our rights to freedom of speech, of thought and of press but also reminds us that there are some restrictions of freedom.
The roots of free speech are entwined with its suppression for a long time when dissent was outlawed and those with dissenting opinions were seen as abnormal human beings. During the middle Ages, the main goal of people was nation building and thus dissenting opinions were outlawed because the law had a literal interpretation of the Bible, making free speech unacceptable. Long time ago, it was believed that people who possessed unique ideas were not human being and thus they were not entitled to any rights. Free speech has a long history in the US from the time Thomas Jefferson secured the passage of the Bill of Rights in the U.S. Constitution which contained provisions which protected free speech. In 1790 free speech was protected through the first amendment which protected freedom of expression, press, assembly, and presenting petitions to authorities in practice. After the American Revolution, the U.S. Constitution’s First Amendment, adopted in 1791, established one of the strongest standards for the guarantee of free speech by any constitution.
In 1798, the freedom of speech was dealt a big blow when President Adams successfully pushed for the passage of the Alien and Sedition Acts which targeted supporters of Thomas Jefferson by restricting criticism that can be made against the president. The Sedition Act enacted by the administration of President Adams played a role in curbing the unhindered expression of Americans. This was a setback to free speech because it eroded the gains that had been made by Americans in ensuring that everyone’s opinion was respected. This act stated that “if any person shall write, print, utter” opinions that “defame the government then they would be severely punished. Jefferson won the 1800 elections thus giving a boost to free speech that was threatened by the government of the time. The law that was passed by Adams administration on free speech that threatened those who spoke and wrote against the government expired thus making Americans to win back their freedom.
The period from the late nineteenth century to the end of World War I was a dark time for free speech because restrictive rules which banned free speech were justified in the name of public morals, safety, civility, or a general idea of decency. The decades of the 1980s and 1990s were times of contrary impulses in the field of free speech whereby the Supreme Court continued to deliver rulings that favored free speech, for instance, Texas versus Johnson upholding the right to burn a flag.
The US Supreme Court has made some decisions in the recent past which have had major impacts on free speech and other rights that Americans are entitled to. The Supreme Court has from time to time embraced a much stronger, more dynamic, and more expansive conception of free speech by making decisions which continue to protect the freedom of expression which have been at time threatened with the other arms of government. The court also embraced the concept of the “marketplace of ideas,” which states that the free exchange of ideas is for the health of a democratic state. The Court has in the recent past decided the freedom of expression extends even to speech that was vulgar and irritating to others (Silverglate, French, and Lukianoff 21).
The Supreme Court has decided that the First Amendment does not provide protection for obscenity, child pornography, or speech that constitutes what has become widely known as “fighting words.” The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation, speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees’ speech.
In 1919, Supreme Court justice Holmes made a decision that solidified free speech rights in American political doctrine that were being threatened. Holmes came to see the abiding imperative of free speech and defend it at great cost to his own reputation at the time (Bush 1). Until 1969, the Supreme Court upheld public and national security laws restricting speech but in Schenck versus United States (1919), Oliver Wendell Holmes wrote his famous opinion, which argued, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” The opinion of Oliver Wendell established an open-ended “clear and present danger” standard for evaluating the legitimacy of national or public security claims.
In 1996, the Congress enacted the Child Pornography Protection Act (CPPA), which defined “child pornography” to include visual depictions that appear to be of a minor, even if no minor is actually used but the Supreme Court declared the act unconstitutional to the extent that it prohibited pictures that are produced without actual minors (Ruane 6). The Supreme Court’s jurisprudence on free speech represents one of the most crucial developments of US constitutional law over the course of the last century because it has portrayed its ability change the society and its laws. The decisions that the court has made in regards to the freedom of expression has made it to win back the role it had lost in 1937 as the oracle of the Bill of rights in the Constitution. The indicators of the transformation of free speech in the US are not the Supreme Court Justices themselves, but the many groups that form American society; religious groups, Blacks who revolutionized speech in public affairs through the fight for racial equality; and the rebellious youths who, in their radicalism against prejudice, did more to dismantle Puritanism (West 916).
In 2010), the court ruled that the Congress may prohibit speech that helps terrorist groups even when limited to legal advice that is related to peaceful pursuits. There are other exceptions to the First Amendment’s protection against government censorship, for instance, those that apply to government employees and public school students, and civil laws that prohibit copy-right infringement, defamation and other torts (Boegel 21) Private lawsuits are subject to First Amendment scrutiny when they involve free speech claims.
Free speech in the USA in the near future is threatened as a result of the development of technology which poses several dangers. Currently, citizens are allowed to freely distribute information on the Internet as they desire so long as laws are not being broken in the United States of America unlike in the past when free speech was only restricted to written, spoken and televised words. The most crucial decisions that will have an impact in the future of freedom of speech will not occur in constitutional law but they will be decisions about technological design and legislative regulations. This is for the reason that free speech does not only depend on the absence of state censorship, but also on an infrastructure of free expression which is designed in a proper way. This will give people opportunities to create and build technologies and institutions that other people can use for communication and association thus policies that promote innovation and protect the freedom to create new technologies and applications are increasingly central to free speech values. Technologies that create new possibilities for democratic cultural participation usually pose a threat to businesses that seek to use knowledge and control its access and distribution.
At the moment, many Americans have access to the internet due to the advancement in technology that has characterized the contemporary society. Many firms which act as network providers act as conduits for the speech of others who use them to express their views. Many Americans currently depend on devices for expression which are not subject to no-discrimination regulation unlike traditional telephone services. Network providers may favor the content of some speakers in future and thus they may block access to some sites which are not liked. Secondly, network providers may want to give some traffic advantage to their content partners and thus they may block their competitors from accessing content which they may use to their own advantage. Amendment 1 does not say much about network neutrality and thus if network providers could discriminate against content and services flowing through their networks, then they would become the most powerful censors in USA. This will lead to a threat to free speech for the reason that network providers may not be compelled to allow access to certain sites due to the gaps that exist in the law. Amendment1 does not elaborate much on neutrality and thus it may become difficult to control network providers if they decide to censor some information. Freedom of expression is something that has been achieved through struggles that our forefathers had to go through and thus we should all ensure that the freedom of expression that will all enjoy is protected. The explosion of technology is a both an advantage and a threat to free speech, for instance, some people have taken advantage of the internet to abuse freedom of expression by defaming others.
Boegel, Ellen K. “Keeping Speech Free.” America 215.4 (2016): 21. Academic Search Premier. Web. 30 Sept. 2016.
Bush, Vanessa. “The Great Dissent: How Oliver Wendell Holmes Changed His Mind-And Changed The History Of Free Speech In America.” Booklist 109.18 (2013): 6. Academic Search Premier. Web. 30 Sept. 2016.
Ruane, Kathleen Ann. “Freedom of Speech and Press: Exceptions to the First Amendment.” Available [online] also at: https://www. fas. Org/sgp/crs/misc/95-815. Pdf [accessed in Cianjur, Indonesia: September 25, 2014] (2014).
Silverglate, Harvey A., David French, and Greg Lukianoff. FIRE’s Guide to Free Speech on Campus. FIRE’s Guides to Student Rights on Campus. Foundation for Individual Rights in Education. 601 Walnut Street Suite 510, Philadelphia, PA 19106, 2012.
West, Sonja R. “Awakening the Press Clause.” UCLA L. Rev. 58 (2010): 1025.