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First Amendment Freedom of Speech- An Essay: Part 1 Interpretations

Updated on November 30, 2012

In the first part of this essay, I introduce the First Amendment's right to Freedom of Speech. Here I introduce the several interpretations or the way that our freedom of speech has been evaluated by the U.S Supreme Court over time, as well as how it is restricted, how much latitude we have, and when, and why it can be restricted.

I hope this essay is useful- at least a little. :)

Freedom of speech being such a fundamental ingredient for a democratic society, nonetheless, clashes with the government’s interest for keeping and establishing order.

These two seemingly polarized goals however, can serve each other to achieve their own ends, as Justice Brennan noted in New York Times v Sullivan (1964), that debate in the public square should be “wide-open” and “uninhibited.” In line with this notion, we know that “broad debate informs and improves the making of public policy”. That said, the intrinsic value of freedom of speech and the strict nature of governance, have conflated to produce a less than optimal freedom, which can, depending on the benefits it extends to society at a given time, be dissected of its fundamental premise, resulting in a freedom of speech that seems to rest on no firm basis or principle.


The problematic nature of the First Amendment freedom of speech lies in the way in which speech has been interpreted to denote action.

The first principle for evaluating freedom of speech against the interests of the government came with the bad tendency test elucidated by Justice Oliver Wendell Holmes in Patterson v Colorado (1907), Speech and action, according to this test, were dichotomous. The bad tendency test thus punished speech if it posed a threat of producing possible illegal action. In contrast to the bad tendency test, Holmes, in Schenck, put forward a new form of thinking about freedom of speech. Holmes saw speech and action in a continuum and thus “sensitive to nuance,” requiring the speech be judged according to the proximate effects it was likely to produce.[1] Holmes announced this rationale in Schenck, where he applied a new standard of clear and present danger to decide freedom of speech cases, to which he added an element of intention to that speech was intended to provoke or would lead to criminal action. However, Holmes’ clear and present danger rationale would not be used so readily when the governments’ interests and the perceived threat of political unrest lie on the line.


How is Our Freedom of Speech Restricted?

If our freedom of speech is restricted in a certain way, can we still have freedom of speech? Not according to Richard Quinney, author of Critique of the Legal Order, Quinney says that there is no such thing as civil liberties in this country because, when it comes to our freedom of speech and action,the state decides when, where and what, which Quinney refers to as selective repression (Quinney p. 144). To illustrates Quinney’s contention we can look at Schenck v United States (1919), at Debs v U.S 1919), at Abrams v U.S1919 and at Gitlow v New York (1925). In each of these cases, the Supreme Court found for the government. In Schenck, Justice Holmes applying the clear and present danger standard rule that Shenck’s freedom of speech could be suppressed because Schenck’s words were linked to a “probable action.” This provided a standard for restricting freedom of speech in cases in which the speech represented a “clear and present danger” (Jost p. 178). In Debs, the court followed the same logic laid out in Schenck, that conviction was clear if the “purpose” of the speech led to a “probable effect” (Jost pg. 178). Again in Abrams and Gitlow, the court relied on the bad tendency test to find enough evidence of “seditious libel” to convict Abrams and Gitlow respectably.From these cases we can surmise that when the government interests are at stake, the freedom of speech will be curtailed. Problematic as that is though; these cases also help to elucidate the problematic nature of the nascent application and interpretation of the First Amendment freedom of speech. But because these cases helped to shed light on the importance of freedom of speech in a democracy, they are of paramount importance in the development and further interpretation of free speech.


Unsettling Times Affect How Much Freedom We Have:

As the period of Schenck, Abrams, Debs and Gitlow demonstrate, in times of war “attempts to limit speech are more pronounced” (Rossum and Tarr 187-188)). Likewise, some freedom of speech cases, especially those involving communist subversion which were heard by the court during the Cold War era of the 1950s and early 60s, were also of this nature. In Dennis v U.S (1951) the court used the clear and present danger test to convict Dennis for “willfully advocating the overthrow of the government.” The court conceded that “overthrow of the Government by force and violence is certainly a substantial enough interest for the government to limit speech” (Sullivan and Gunther p. 779). Moving away from Dennis, the Court in Yates v U.S (1957), said that the “Act only proscribed advocacy of participating in overthrowing government” (Rossum and Tarr p. 188). What’s more, in U.S v O’Brian (1968) the Court treated speech as conduct, and maintained that the administrative interests of the government in a time of political unrest outweighed freedom of speech, but only as long as the government’s interest in the suppression of speech is content-neutral[2] Despite the fate of Dennis and Obrien, however, the court was already moving in a positive direction for extending more protection to freedom of speech. In Brandenburg v Ohio (1969) the Court ruled that the government could not silence speech on the basis of the content, unless that advocacy is directed to inciting or producing imminent lawless action and it is likely to produce such actions (Rossum and Tarr p. 219). But despite the nature of the times and the troublesome nature of these cases, the court also assumed a more liberal stance on freedom of speech during this period, thus undermining the validity of the Smith Act, under which, Dennis and other cases had been tried (Jost p.188-189).

The state reserves the right to regulate the time, place and manner of speech in public places if it interferes with the normal activities of the property, but only as long as the regulation is not targeted at the content of the expression (Rossum and Tarr p 195).

And thus, In line with the need of the government to maintain peace and order, the Court has also had to grapple with question of First Amendment rights to freedom of symbolic expression. After the O’Brien’s ruling, in which the Court upheld O’Brien’s conviction on the basis of a governmental interest, the Court found precedent in Brandenburg v Ohio (1969) to decide cases dealing with symbolic speech. Thus, in Texas v California (1989), the Court abandoned the O’Brien test altogether and reversed Johnson’s conviction on the grounds that the Texas law was not content-neutral (Rossum and Tarr p. 242). In R.A.V v City of St. Paul (1992) the Court said that the St. Paul’s ordinance was invalid because it involved a viewpoint -based distinction (Rossum and Tarr p. 194). Virginia v Black (2003) was another case in point in which the Court struck down a Virginia law on the basis that it was also content-based. After Texas v California the Court seemed to consistently uphold what had been decided in Brandenburg (Rossum and Tarr p. 243). In each case, the Court ruled that the State could not regulate conduct if regulating this conduct hinges on a desire to restrict the expression of ideas (Rossum and Tarr p. 193). When it comes to freedom of expression and assembly, the Court has given demonstrators full protection when in the public square, provided that it their expression is not an incitement to violence.In Feiner v New York (1951), the Court upheld a conviction in which evidence of clear and present danger was enough to convict Feiner in order to prevent a breach-of-the-peace. In Edwards v South Carolina (1963), however, the Court ruled that peaceful demonstrations without any incitement to violence were protected by the First Amendment freedom of speech and assembly.[3] In Schenck v Pro-Choice Network of Western New York (1997) the Court struck down an injunctionrequiring “floating buffer zones” which, prevented pro-life demonstrator from reaching women entering clinics.


[1]By David M. Rabban | Jan 1, 2008http://www.mywire.com/a/Oxford-Companion-Supreme-Court-US/Bad-Tendency-Test/9584192/?&pbl=49

[2] Oyes.com

[3] Edwards vNew York the Oyezproject.org

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    Howard Schneider 

    5 years ago from Parsippany, New Jersey

    This was an excellent Hub on our right to freedom of speech and its possible restrictions. The government does have a function to keep order but I believe it must be only at extreme, imminent, and lethal threats. Otherwise this freedom should be sacrosanct. Great job, Impostora.

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