History of Freedom of Expression

The First Amendment to the U.S. Constitution (1791)

“Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition…”

Universal Declaration of Human Rights, Article 19 (1948)

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

Importance of Free Speech

Personal autonomy and foundation of democracy

Pure Speech

Printed and spoken word

Dangers Posed by Free Speech

Hate speech (protected), violent speech (unprotected), matters related to national security, fighting words (unprotected), more limits on speech that may be directly harmful to children, slander/defamation (unprotected)

Other examples of speech

Symbols, art, gestures, money, expressive action related to symbols

Founder of Two Concepts of Freedom

Isaiah Berlin

Negative Freedom

Government protects your right by staying out of your way — lack of authority

Positive Freedom

Government has to take action to empower you to exercise freedoms — creating equity

Instrumental Arguments for Free Speech

We protect the freedom of speech because it is essential for the government/democratic system, and it helps us achieve it — We protect it because it does something else

Moral Arguments for Free Speech

We protect the freedom of speech because it is good in and of itself

Who Free Speech Was Originally For

Members of the Parliament

Licensing System (1538-1695)

Needed government approval before publishing in the press and limited what people could say

Blackstone’s Commentaries

Tried to summarize what the law means; what it protects and what it doesn’t; argued there is a presumption against prior restraint

Prior Restraint

Government is restraining what you say before you say it

Trial of John Peter Zenger (1735)

Zenger criticized the governor and was charged with criminal seditious libel; jury nullified

Jury Nullification

Defendant should be convicted under the law but the jury didn’t find the law just

Sedition Act of 1798

Made it a federal crime to make any false or malicious statement against the U.S., Congress, or the President with the intent to defame them or to incite the people against them

Patterson v. CO Decision (1907)

accepted Blackstone’s view that free speech/press protects against prior restraints

Patterson v. CO Case (1907)

Patterson published articles that were critical of the state supreme court of Colorado and was found in contempt of court

Espionage and Sedition Act (1919)

Congress made it a federal criminal law that prohibited statements that were viewed as unloyal or unpatriotic

Schenck v. U.S. (March 1919)

Oliver Wendell Holmes Jr. establishes the Clear and Present Danger Test

Abrams v. U.S. (November 1919)

Holmes dissents using the Marketplace of Ideas Analogy

Whitney v. CA (1927)

Louis Brandeis on history and imminence

Brandenburg v. OH (1969)

Established the Imminent Lawless Action Test