Study Notes on Foundations of Freedom of Expression

Freedom of expression is a key privilege enjoyed in the United States, guaranteed by the First Amendment.
The First Amendment's bold language states:
- “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 the Government for a redress of grievances.”
This language appears to provide an impregnable shield against restrictive government actions on four components of freedom of expression:
1. Speech
2. Press
3. Assembly
4. Petition

However, the Constitution does not protect all speech fully.
The Supreme Court has ruled against absolute liberty by stating that:
- Mischievous patrons shouting “Fire!” in a crowded theater is not protected.
- Knowingly printing lies to damage someone’s reputation is not protected.
- Driving sound trucks through residential neighborhoods at all hours is not acceptable.
- Protesters storming onto the Senate floor to express demands is out of line.
The Supreme Court believes the government can restrict certain expressions due to potential harmful effects, deviating from a literal interpretation of the First Amendment.

The expression clauses’ initial version was proposed by Madison in June 1789, stating:
- The people shall not be deprived of their right to speak, write, or publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The final version focuses on the prohibition of laws that abridge freedoms.
Historians believe these guarantees were responses to two repressive English practices:
- A licensing system that required government approval to print materials.
- The doctrine of seditious libel law that criminalized criticism of the government.

Blackstone's belief: “The liberty of the press consists in laying no previous restraint upon publications and not in freedom from censure for criminal matter when published.”
Rare instances today allow for prior restraints on expression under the First Amendment.

This penalized criticism of government officials, based on the belief that criticism could undermine public opinion about the government.
The Sedition Act of 1798 made it a crime to defame the federal government or its officials, punishable by up to two years of imprisonment.
Prominent figures faced prosecution, and opinions differed, including critical views from Madison and Jefferson.

Originating from John Stuart Mill and Justice Oliver Wendell Holmes Jr.:
- Free expression aids in discovering truth; the best test of truth is its ability to gain acceptance in a marketplace of ideas.
Critics cite that:
- Some stated beliefs are objectively false and that a prolonged competition can cause irreversible harm.
- Not all individuals have equal access to communication platforms, distorting expression.

Protecting expression is vital for political discussion, voting, and informed governance.
Political speech is privileged, but all subjects, including personal matters, have public ramifications.

Every individual has the right to develop and express their beliefs as part of personal growth.
Critics argue this justification ranks speech over other pleasurable activities unfairly.

Initially, the Court did not face significant freedom of expression disputes until World War I.
Major cases at that time reflected governmental attempts to suppress dissent:
- Espionage Act of 1917 restricted speech during wartime.
- The Sedition Act of 1918 prohibited disloyal speech against the government.

Charles Schenck was convicted for distributing pamphlets advocating draft resistance.
The Court, led by Justice Holmes, introduced the Clear and Present Danger Test, allowing for punishment of speech that poses an immediate danger during wartime.
The act of falsely shouting fire and generating panic is an example of speech unprotected under this test.

Over time, various tests emerged:
- Clear and Present Danger Test (Schenck): assesses if speech poses an immediate danger of substantive evils.
- Bad Tendency Test (Abrams): evaluates if speech has the tendency to produce evil effects, even if not directly dangerous.
- Preferred Freedoms Doctrine: proposed that First Amendment freedoms deserve greater scrutiny against government regulation.

Following periods of political tension, including after World War II, the Supreme Court began a trend towards more protection for free expression.
Brandenburg v. Ohio (1969) advanced the standard: speech is protected unless it is directed to inciting imminent lawless action and is likely to produce such action.
Today’s inquiries focus on various forms of expression, determining their placement under First Amendment protections.