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Freedom of Speech

This document tells you the following:

• What does the First Amendment say?
• What is speech?
• What are the two principles that justify placing limits on free speech?
• Do all kinds of speech have the same protection?

FREEDOM OF SPEECH

In American society, we can freely discuss gov-ernment affairs. We can express controversial ideas, even unpopular ideas. We can hear and consider all points of view before we vote for political changes. This freedom of speech is the basis of democracy. Our rights to free speech and a free press are both specified in the First Amendment to the U.S. Constitution.

Bill of Rights

Amendment I
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.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

They are also guaranteed by the Georgia Constitution in Article 1, section 1, paragraph 5: "No law shall be passed to curtail or restrain the freedom of speech or of the press. -Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty."

What Is Speech?

SITUATION 2 Expressing his anger at government failure to help the homeless, an artist paints a picture of the flag that many people consider to be offensive.

SITUATION 3 A campaign worker hands out pamphlets on a street corner.

SITUATION 4 A group of students wear white arm-bands to high school one day. The armbands are in memory of the school's graduates who were killed in recent wars.

What is "speech" anyway? Would the activities in these situations be speech? Would they be protected by the right to free speech?
Obviously, talking is speech. So is writing. So are pictures (situation 2) and other forms of artistic expression. So is distributing speech (as in situation 3, for example). The right to speech also guarantees the right to read and hear speech.

Sometimes our actions speak louder than our words. Actions that we use to make a point are called symbolic speech. Symbolic speech is protected. Both situations 2 and 4 are examples of this protected form of free speech. Burning an effigy of a public figure would be protected speech. The U.S. Supreme Court has said that burning the flag is sym-bolic speech and is protected. This decision holds true unless the Constitution is amended or the court reverses its decision.

Can we do whatever we want in the name of symbolic speech?

SITUATION 5 Henry goes barefoot to school to symbolize his personal war against poverty. No one gets the message until he explains it, but the school principal is not impressed. The school dress code requires all students to wear shoes.

If armbands are symbolic speech, wouldn't the absence of shoes be also? Probably not, if no one understands what the action symbolizes. Are dress and hair codes constitutional? Don't they violate an individual's rights under the First Amendment? In general, the courts have said "no." They have allowed schools to have reasonable dress codes. The next sections will help you understand why dress codes have been allowed.

Limits on Free Speech

Can you say whatever you like whenever you want? Are there any limits? As with any freedom, freedom of speech carries with it a corresponding duty. You must use this freedom responsibly. You may exercise some of this responsibility yourself, apart from the requirements of laws. Think about times when you have curbed your own speech to protect yourself or others. The courts impose responsibility as well. They have justified limits on the freedoms of speech and press in cases in which speech would (1) create a "clear and present danger" and (2) disrupt government activity.

Clear and Present Danger

The Supreme Court has held that the government may act to restrain speech that presents a clear and present danger. One classic example is that you may not yell "fire!" in a crowded thea-ter if there is no fire. If you did, there would be needless panic. People might be injured. The need for public safety outweighs the right to free speech.

Are situations 6 and 7 examples of clear and present dangers? Should speech be limited in them?

SITUATION 6 A member of the Communist Party stands quietly on the steps of the state capitol in Atlanta. She hands out pamphlets to visitors. The pamphlets do not suggest that the current government be overthrown by force. Rather, they urge revision of the Georgia Constitution to create a communist state government.

SITUATION 7 At a protest rally outside city hall, a speaker tells the crowd to destroy the building. Many protestors are carrying bricks, and some even have guns.

The Communist Party member on the capitol steps in situation 6 does not present a clear and present danger. The government has no right to interfere with her activity. Would it make a dif-ference if she were urging people to overthrow the state government by violent means? Her speech could be prohibited only if she were urging such violence to people capable of carrying it out in the immediate future. In situation 7, the speaker is urging violence to people who can carry it out. The speaker's words do present a clear and present danger. The right of others not to suffer harm outweighs the speaker's right to free speech.

Disruption of Government Activity

Courts also allow restraints on speech that interferes with important government activities. In the following situations, does the exercise of free speech threaten the functioning of a government activity? Do the actions justify the government's restraint of free speech?

SITUATION 8 At a criminal trial, a spectator talks loudly to his companion. The judge warns all spectators in the courtroom to be quiet. The visitor continues to talk loudly. Finally, the judge imposes a fine of $25 on him for disrupting the trial. The judge has him escorted from the courtroom.

SITUATION 9 A group of students carry large home-made posters to school. The posters protest cruel treatment of animals. Other students taunt the protestors. A fight ensues. The school bans use of all posters inside the school building.

Some government activities require more order than others. The activities of a courtroom, for example, require more order than do activities that take place at a park. For this reason, the courts have allowed governments to restrict free speech in some situations more than in others.

Situation 8 is a good example of how free speech can disrupt a government activity. In this situation, the judge and jury would have been distracted by the noise. The defendant's right to a fair trial would override the visitor's right to free speech.

In situation 9, the fight clearly disrupted the educational process. However, limiting a constitutional right to prevent interruption of a government activity, as in this situation, is a serious decision. The ban of all posters may be excessive. Certain questions arise. Were the posters the cause of the fight? Will a ban on posters prevent further disruptions?

As you can see, limits on the right to free speech represent a balance. The rights of the individual must be weighed against the rights of other individuals or society. Even though there are only two main limits on the freedom of speech (that is, speech that presents a clear and present danger and speech that interferes with important government activities), the government is still able to regulate (or restrict) speech according to certain rules.

Content-Neutral versus Viewpoint-Based Restrictions

The government can regulate free speech as long as the regulation is content neutral, meaning that it doesn't discriminate against certain viewpoints by restricting them. The government is not allowed to regulate a person's speech based only on the viewpoint expressed in that speech or activity. For example, if the city allows student organizations to hold gatherings in a local public park, then the city cannot prohibit a student organization from holding a gathering in the park just because the city does not like the viewpoint or ideas of that particular student group. On the other hand, if the city prohibits the same gathering because the number of attendees may be too large for the park to handle, then the prohibition is considered to be content neutral because it has no relation to the student organization's viewpoints or opinions. Therefore the prohibition is acceptable.

Time, Place, and Manner Restrictions

Another way the government can restrict a person's freedom of speech without violating his or her constitutional rights is with time, place, or manner restrictions. An example of this type of restriction is a law that says that no loud music may be played in a public area after 11 o'clock at night. A state or local government may justifiably restrict speech to protect citizens, to reduce crime, or to safeguard reasonable enjoyment of public areas.

Do All Kinds of Speech Have the Same Protection?

The First Amendment was written mainly to ensure the free exchange of ideas within our society, but speech has many purposes.

Commercial Speech

Speech that is intended solely to make money is called commercial speech. Commercial speech receives less protection than do other forms of speech. For instance, the government can require that commercial messages be truthful. You have encountered examples of this requirement in the chapters on consumer and credit law. The government can prohibit commercial messages related to unlawful activity. Drug dealers, for example, cannot advertise cocaine in the newspaper.

In addition to the restrictions mentioned earlier, the government can regulate commercial speech if the regulation advances a substantial interest and is not any broader than necessary. For example, the Supreme Court found that a state law that requires stores located near schools to keep all tobacco products behind the counter advances (or promotes) that state's "substantial interest" in not advertising tobacco products to young people. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 569-70, 121 S. Ct. 2404, 2429-30 (2001).

Slander and Libel

As you learned in chapter 10, slander or libel is speech that is not true and may injure others. Usually the injury is to a person's reputation. The First Amendment allows you to say whatever you like, but it does not protect you against liability for damages caused by slander or libel. It does not give you the right to hurt someone else.

Fighting Words

"Fighting words" are speech or expressions -likely to cause an "imminent breach of the peace." That is, they incite others to violence against you or others. Like slander, fighting words are not protected by the First Amendment. However, the courts have interpreted fighting words very narrowly. Just what would constitute fighting words is unclear.

SITUATION 10 You are a basketball player, and your team is under a lot of pressure to win the sixth game of the season. Near the end of the first half, a player from the other team elbows you in the stomach. You double over in pain and yell, "I'm going to break your jaw!"

In this situation, you are urging violence against a person. You also have the ability to carry out the action, and your words might therefore be considered inciting. But consider another exam-ple: after the game, you hear that a team that has regularly beat your team in the state finals is winning a game in a city about 200 miles away. Most probably, it would be different if you said you were going to break the jaw of that team's coach. You do not have the present or immediate ability to carry out this action. This situation makes these words less inciting, or less likely to cause a breach of the peace.

Security of Prisons, Schools, and Military Bases

The courts have repeatedly decided cases in favor of free speech rights in situations involving students, prisoners, and military personnel. However, because of the need for security, the rights of these groups may sometimes be limited. Consider the following situation:

SITUATION 11 Some students at school are wearing Confederate flag T-shirts. Others are wearing shirts with "Malcolm X" printed on them. The school principal bans all T-shirts with messages on them.

The courts have said that students generally have free speech rights at school unless what they say creates a "reasonable likelihood of mate-rial and substantial disruption." What if the students get into fights about their T-shirts? Would there be a reasonable likelihood that material and substantial disruption would occur in this situation? The ban on all T-shirts with messages may be too broad. What would be a better dress code rule?

Obscenity

Should the government allow the free expression of language that deeply offends some people? Should X-rated TV programs be available to young children without government restrictions? What about music that has obscenities or Internet websites that have offensive speech? Most people, especially parents, have very strong opinions on this issue.

In majority decisions, the U.S. Supreme Court clearly has held that obscene material is not pro-tected by the First Amendment. What the court has not done, however, is to clearly de-fine obscene material. The Supreme Court has said that material is considered to be obscene only if three factors are present:

1. It appeals to the prurient interest. (Prurient refers to an obsessive interest in sex-ual matters.)

2. It depicts or describes, in an obviously of-fensive way, sexual conduct.

3. The work, taken as a whole, lacks "serious literary, artistic, political, or scientific value."

There are many problems with this standard. For example, people do not agree on which works have literary or artistic value. The Supreme Court has held that "contemporary community standards" are to be used to decide what is obscene.

Is this a helpful guideline? Think about how this standard would apply in Georgia. Should the standards of the entire state be used? Should each local community set its own standards? Who in the community should say what the standards are?

* Excerpted from An Introduction to Law in Georgia, Third Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2001).  The Vinson Institute is not responsible for errors in the online text.  Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications.  Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.