Freedom of Speech and Expression

A public protest in 2004 against the limits on the size of demonstrations in New York City. ("Free speech demonstration," Wikipedia, 2004)

There have probably been more free speech cases decided by the Supreme Court than any other kind of case. Some of the highlights of the Court’s rulings include the following:

• The Court has been particularly protective of political speech (and less protective of other kinds of speech, such as commercial speech). There is a much higher standard, for example, when a public figure sues someone for libel or slander. In New York Times Co. v. Sullivan, the Court ruled that the public figure must demonstrate not only that harm had been done but also that the individual or organization that made public the false information did so “with knowledge that it was false or with reckless disregard of whether it was false or not.”
• The Court has also provided broad protection for things that are said, written, or broadcast during the course of a political campaign. In Buckley v. Valeo, the Court even upheld the right of candidates to spend as much of their own money as they choose. As noted above, however, in the same decision the Court upheld limitations on individual contributions to candidates.
• In a variety of First Amendment cases, the Court has established guidelines for limiting speech and expression. Any such limitation must be based on a compelling need to preserve public order. Additionally, the limitation must meet these standards:
  
1. The limitation cannot put a “prior restraint” on individuals. That is, it cannot prevent someone from saying or expressing an idea. The government can only punish illegal forms of expression after the fact, so as not to cause a “chilling effect” that would limit people’s willingness to express themselves freely.
2. It must be content neutral, that is, it cannot single out a single set of ideas or concepts to be limited. For example, a law prohibiting the placement of flyers on telephone poles is permissible under the Constitution. However, if only religious flyers were prohibited while flyers with other kinds of content were allowed, the law would not be constitutional.
3. Laws must be specific. If they are too vague, the Court has also expressed concern that they might cause a chilling effect on expression. When the Congress recently passed a law against obscene and indecent expression on the Internet, the Court ruled that the law was too vague and declared it unconstitutional because it was causing people to censor themselves out of fear that they might unknowingly violate the law.
4. Such laws must also be the least drastic means available for accomplishing its stated objectives. For example, there is a clear public interest in keeping streets safe and, to the degree possible, free from congestion. Toward this end, a city might decide to ban all parades or marches on its streets. Such a ban, however, would not be the least restrictive means available. Instead, limiting the time and duration of parades and marches and requiring prior public notice of them would achieve the stated goals of the more restrictive law without unduly infringing on the individual freedom of expression.

While the Supreme Court has been consistently protective of free speech and expression, the Court has upheld limitations on speech and expression in several instances. In general, these limits fall into three categories: content restrictions, place restrictions, and symbolic speech. In allowing these restrictions, the Court has affirmed that the rights of individuals are not absolute or without reasonable limitations. Some examples of kinds of speech or expression which are not protected by the First Amendment include:

• Obscenity
• Defamation (untrue information that harms someone’s reputation)
• Speech that is dangerous (e.g. shouting “Fire!” in a crowded theater) or that provokes violence (so-called “fighting words”)
• False advertising
• “Symbolic” speech that violates other laws or infringes on people’s property rights, e.g., burning draft cards or graffiti

Additionally, the Court has ruled that expression can be limited in places where peace, quiet and orderliness are required, such as court rooms, schools, and jails.