Freedom of speech is perhaps one of the most common sayings when referring to law. With that said, it’s important the we understand speech and all of its distinctions, including its dangers, threats, power, codes, and overall meanings.
A major question to ask is whether a speech is protected or not. A way to determine this is by weighing competing values case-by-case, which is known as ad hoc balancing. However, a drawback to this tactic is that it is difficult to generalize from such fact-specific decisions, which means that the courts and society have difficulty applying them to current controversies.
Throughout U.S. history, threats to freedom of speech have occurred many times. Recently, in 2010, the U.S. Supreme Court rule 6-3 that a 1996 federal ban on “material support” of terrorist groups did not violate the first amendment. In other words, people were now allowed to support such groups.
Following the 2001 terrorist attacks on the World Trade Center and Pentagon, government at all levels proposed new laws to better protect the U.S. citizens and punish terrorists and those who support terrorism. This caused one of the most controversial actions of the federal government, the enactment of the USA Patriot Act. This act, designed to identify suspicious activity and speed the interception and prosecution of terrorists, raised concerns because of the unclear defintions for “terrorism” and “support for terrorism”. This actually placed a chilling effect on speech. A chilling effect is when a practice that discourages the exercise of a constitutional right. In this specific situation, the chilling effect was on the First Amendment, freedom of expression.
Luckily, now, the Supreme Court has developed many tests to help it decide when speech must be protected in order to encourage robust discussion and debate and when speech may be punished.
For example, the Court has said speech and press content are not protected if they would cause imminent harm or play “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and mortality.” However, although this is a mouthful and is precisely written, what is protected and what isn’t is still not the clearest. This is why court affords leeway for different interpretations as all circumstances are different.
The idea of preventing harm has actually been around since 1919, which is when Justice O. Homes wrote that the government had a right and a duty to prevent speech that presented “a clear and present danger” to the nation. In other words, the First Amendment can be restricted if it is to prevent serious harm. Again, each situation is different, which made this difficult to enforce.
The clear and present danger test was too flexible, too subjective, and too easily swayed by politics and social concerns in order to be fairly and successfully consistent, which is why, in 1969, the Court attempted to resolve this problem by adopting a new test that “drew a bright-line” distinction between advocating violence as an abstract concept and inciting imminent illegal or violent activity. This can be seen in the Brandenburg v. Ohio case, where the Supreme Court ruled that the First Amendment protects the right to advocate violence, but not to incite it.
Interestingly enough, the Brandenburg v. Ohio case was so monumental that the rules created back then are still active today. This is because along with replacing the “clear and present danger” standard, the Brandenburg decision established that government may punish criticism of government or advocacy of radial ideas only when the speaker intentionally incite immediate illegal activity. Being that this was in 1969, it’s not hard to guess what this was about, the KKK. This was major as it ultimately meant that white supremacist leaders were not longer protected if they simply spoke about violence, as now they were liable because they incited violence.
Ultimately, the Constitution protects the right to express ideas in an offensive manner because effective speech has both cognitive and emotional content and everything is meant for interpretation. However, the Supreme Court has still established that fighting words or words that incite immediate violence are illegal. As you can see, the line between what is protected and what isn’t is still relatively unclear as each circumstance is different. Nevertheless, the laws defining free speech are much clearer than they were in 1919 and are only getting better.