The Freedom of Speech in the US - Research Paper Example

The Freedom of Speech in US Institution Name Date Table of Contents Abstract……………………………………………………………………………………………… 3 Introduction…………………………………………………………………………………………. 4 The History of the Freedom of Speech in the US…………………………………………………. 5 Justification for the freedom of Speech in the US…………………………………………………. 7 Control, Restrictions and Limitations of the Freedom of Speech………………………………… 8 Conclusion…………………………………………………………………………………………… 10 ABSTRACT Democracy, in one way or another requires the freedom of expression. The right to say or print whatever one likes, holds a special place in the heart of Americans (Kersch, ). It was guarantees the American citizen the concept of American freedom. The guarantee of this freedom of speech is provided for in the First Amendment of the Constitution of the United States. This amendment comes along with the right to religious liberty, liberty of the press, and the liberty to peacefully assemble and petition the government on its wrongs. This provision in the US constitution has been of great controversy for years with some manipulating it and passing other laws contrary to it for their own benefit. America as a country is envied by many other countries for its tolerance towards freedom of speech. This is because; the freedom of speech exercised in America has enabled America to grow to high level of democracy especially seen in the recently re-election of President Obama for the second term. It is with this view that this paper aims to explore the freedom of speech in the United States by examining its history, justification for Americans, applications, implications and limitations of this provision. The paper aims to bring out the general view of Americans on the issue of freedom of speech through an examination of personal opinions and giving of possible recommendations. Introduction On September 17, 1787, the delegates to the Constitutional Convention in Philadelphia, headed by George Washington, established the U. S. Constitution that strengthened the national government and its fundamental laws that would govern the US as well as guarantee basic rights for its citizens. The need for this constitution came with the view that the national government was weak and the states under it operated like independent countries (Cornell University Law School, 2010). Therefore, a plan was designed to make a stronger federal government with branches like executive, legislative and judiciary with a series of checks and balances to ensure that no branch operated with excess power (Cornell University Law School, 2010). The establishment of this constitution and a call for a change in the system of government also called for the amendment of the basic rights of citizens of US. Thus the first amendment to the US constitution was made. The amendment, which was part of The Bill of Rights, assured the US citizens of their individual protections such as freedom of speech and religion. The amendment prohibits the making of any law respecting the establishment of any religion, interfering with freedom of religion, abridging the freedom of speech, interfering with the freedom of the press, interfering with the right to assemble peacefully and allowing a way for petitioning for a governmental redress of grievances (Cornell University Law School, 2010).The amendment that guarntees freedom of speech and is viewed as a constitutional right goes as follows: “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.”(The U.S. Constitution, Article I - Online) Therefore, the freedom of speech in the United States is protected by this first amendment (Feldman, 2008). Most of the states also have federal constitutions and laws that protect the freedom of speech. This has been done with the help of the judiciary which has categorized different kind of speech excluded from the freedom of speech. The judiciary has also set out guidelines to enact the freedom in a reasonable way within specific time, place and manner of restrictions. One unique thing about this freedom is that criticism of the government and advocating for unpopular ideas that may be against public opinion are to some extent allowed. However despite this, it goes further to outline the exceptions when it comes to implementing the act. Child pornography laws, speeches that incite imminent lawlessness actions and regulation of commercial speech are some of the limitations set in place. The restrictions as well balance with other rights like the right of authors and inventors over discoveries and documentaries, protection from imminent violence against specific persons(fighting words), and use of untruths to harm others(slander). The implementation of this act in the US to date remains a controversial and critical issue. The History of the Freedom of Speech in US In England, the criminal law was against criticizing the government, and for any truth to have been published, the government had to provide a license to accompany it (History.com). This was with the view that everyone in the country needed to bear a good opinion of the government. This was mostly enacted during the colonial times. However, in colonies like America, the view was a bit different. During British colonialism in America, few people were prosecuted for seditious acts but restrictions over speeches were in place. An example was a control that censored speech that was considered a blasphemy in religion; people who denied the immortality of the soul were punished (History.com). Fortunately, the freedom of speech flourished gradually laying a good basis for a generation that later became very revolutionary. This marked the beginning for a trend of acceptance and tolerance of free speech. It was after the American Revolutionary war that a debate on the adoption of a new constitution began. The debate created a division between federalists and anti-federalists. The federalists favored a strong federal government while the anti-federalists favored a weak one. The anti-federalists argued that the constitution was more on the power of federal government. Due to this concern, the first amendment was put in place in 1791 and the bill of rights was amended limiting the power of the federal government (Infoplease.com). In 1978, the Alien and Sedition Act were added to the Bill of rights. The Act gave the President the power to deport undesirable citizen. The act also resolved to make a crime, criticism of the government in speech or writing, that is, the act prohibited the publishing of false, scandalous and malicious information against US government, the Congress or the President of the United States with the aim of defaming (Infoplease.com). Instead, it gave room for the truth and for any malicious intent, a proof would be required. The law, which was passed to favor President Adams, was later a misused especially by the federalists against their rivals, democrats verses republicans. When President Thomas Jefferson took office 1801, he pardoned those who had been convicted under the act during the time President John Adams ruled. However, no one challenged this act in court. Due to such jurisprudence, freedom of speech in the US has been presumed protected unless a specific exception applies. This act was followed by another act in 1872. The Congress had passed a law that prohibited the mailing of obscene materials. As a result, the Supreme Court upheld this law and barred the showing of any film that is not of any moral, educational or harmless character (infolpease.com). The court ruled this with the argument that showing of movies is a business and therefore is not part of the press for it to enjoy freedom of expression/ speech/ free press. Having realized that this business wasn’t protected in the constitution, individuals moved forward to set up censorship boards. In 1918, the sedition act was added to the Espionage Act of 1917 that put to a hold giving speeches, writing or publishing of information critical of the form of government of US. The constitutionality of this act was affirmed by the Supreme Court. In 1940, another act was passed, The Smith Act. This act made it a crime for one to push for a violent overthrow of the government, to distribute any material that advocates for such or to belong to a group with such an aim. This was later followed by the court reversing its stand on movies saying that the liberty of expression through motion pictures is protected in the 1st and 14th Amendments. In 1971, the US government stopped the New York Times from publishing papers from Pentagon to help protect military information. The papers were mostly about the Vietnam War. The Supreme Court even went ahead to support this by upholding the paper’s right to publish the Pentagon papers. In 1989 the court gave a very controversial ruling that burning the American flag was a ‘symbolic speech’ political protest. This ruling gave support to the Flag Protection Act of 1989. The implications of this first amendment are that the government of the US has no power to restrict its message, ideas, subject matter or content. Therefore the intention of the freedom of speech in the US is to help build politics and culture and assure each individual of a self-fulfilled guarantee on the right to express any thought and be free from any government censorship. America in this view has been seen as one of the most free countries in terms of self-expression (Kersch, 2003). Justification for the Freedom of Speech in the US The general justification of freedom of speech is on the theory of the market place of ideas. Justice Oliver Wendell Holmes was once quoted saying that 'censorship is an irresistible impulse when you know you are right But when we look back …. to be seen as truth, we know that we must keep a free market place of ideas open.....' The argument here is that the truth will always emerge from an open competition of ideas. The issue of justification of this freedom came with questions as to whether the advocacy of employing genocide to solve problems of integrating ethnic minorities should be protected. Actually, there was a need to. In other words, the market place principle implied that any idea that has a social value should enjoy full protection. Therefore, the freedom of speech in the US is justified because it guarantees freedom to advocate ideas (unorthodox, controversial and offensive ideas) to a certain prevailing climate of opinion. Thus there is a need for the US government to be neutral towards different ideas. Although the principle of the market place is dominant, other justification also emerged. For example, some scholars have suggested a liberty theory whereby freedom of speech becomes part of fostering individual self-realization and self-determination making it a larger part of the right to self-expression and personal development. Another advanced approach is the tolerance theory which sticks to the idea that the special value in the freedom of speech is in the ability of one to promote and teach tolerance. This theory recommends self-restraint as the best response to those ideas that one may personally hate. This later helps one to participate in democratic and conflict-ridden society. Control, Restriction and Limitations of the Freedom of Speech (Unprotected Speeches) The way the First Amendment is to be interpreted has been a task left in the open because the founding fathers of the US constitution provided just a general framework for federal action. However, the basic meaning of the freedom of expression is the right to have freedom of speech which allows individuals to express themselves without interference from the government. The amendment also provided for the freedom of the press which is not in any way different from freedom of expression. This is because it allows an individual to express himself/herself through publications and disseminations (Cornell University Law School, 2010). The right to petition the government as well guarantees people the right to question the government over wrongs through courts and works hand in hand with the right of assembly. Such an amendment seems attractive in the sense that it provides amore liberal approach to the idea of free speech. However, there are a few points that one needs to note in the continued examination of this act and trend: the Supreme Court had to some extent enlarged the number of protected speeches but with exceptions; some principles have been doubtful because of the nature of cases that the Supreme Court has handled; the supreme court has also never declared that all speeches are protected because political speech has been given a high level of protection as opposed to commercial and obscene speech (Wang, 2002). Also, the protection guaranteed by the amendment is not absolute as the Supreme Court imposes some restrictions on the freedom of speech. This has been done best by having established and defined categories of speech which are not fully protected in the First Amendment (Wang, 2002). These categories have advocated for imminent illegal conduct, defamation, obscenity, fraudulent and misrepresentation. The first way in which restrictions have been exercised is providing a proof that the speech in question may cause imminent illegal action (Wang, 2002). This had called for a clear boundary to defining general political dissent and abstract theories, and incitement. The boundary between legal advocacy and illegal incitement of criminal conduct is drawn by the view that the government cannot punish speech because it has a tendency or a reasonable possibility of inciting illegal conduct (Wang, 2002 & Feldman, 2008). In order to punish, the government first directs the speech to inciting lawless action, then followed by an advocacy which will be calling for an imminent breaking of the law. This is when the advocacy must produce such a conduct. This method gears towards establishing if any danger can arise form the speech in question. Therefore, the Supreme Court passes it clear that if an appeal does not incite illegal conduct, then the right to advocacy is protected(Wang, 2002). The need for such scrutiny of core political speeches is because of the expressive nature and importance to a functional republic. Another category not protected but regulated by the Supreme Court is false statements that can lead to defamation. This is because such statements make the market place principle not to function fairly because they make ideas not fall on their merit. Therefore, an individual who publishes false statements is not protected by the freedom of speech and expression (Wang, 2002). In the course of regulating speeches, the Supreme Court has also put up restrictions based on time, place and manner. This is to say that the freedom of speech in the US is also limited to some zones which is a designated venue for segregating speakers according to the content of their messages. Some arguments have come up saying that the first amendment provides for freedom of speech anywhere and therefore there should be no restrictions. Thus the creation of such zones has been seen to be offensive to some people. Such a restriction is in such a way that it must withstand an intermediate scrutiny. In other words, it must be content neutral, be narrowly tailored, serve a significant government interest and leave open alternative channels for communication. Even though the first amendment provides press freedom, publishing information on national security (military secrets) is not protected under this act. Any information that is not military based but is capable of causing national damage is protected from willful disclosure. A prohibition is also provided for any publication of photographs of crucial defense installation designated by the President of the US. Conclusion The need to express oneself freely is a key thing in the US. This is the reason as to why the public got concerned about the bill of rights that was not very efficient during the launch of a new constitution in the US. There was need for a clear guideline on the freedom of speech and expression in the US as there appeared a heightened rivalry between the Democrats and the Republicans. Also, with the growing level of democracy in the US, there was need for a society that would keep the government in check through a liberal approach to freedom of speech and expression. This was thus provided for in the first amendment of the US constitution. This act guaranteed the citizens of US freedom of speech and protection from government censorship. With the Supreme Court playing a role in restricting and limiting these rights according to different kinds of speeches like core political speech, the clause has of late worked so well for Americans. This discussion thus recommends a more elaborate article on the limitations of freedom of speech and expression as well as the press freedom to report things concerning the government. Clear guidelines also need to be put in such a way that the government can easily punish those who violate these. The Judiciary also should have a clear power to overpower other institutions like the executive. References: Cornell University Law School. (2010). The First Amendment: An Overview. Legal Information Institute. Web, August 19, 2010 < http://www.law.cornell.edu/wex/first_amendment> Accessed on 13th November, 2012. Feldman, Stephen. (2008). Free Expression and Democracy in America: A History. University of Chicago Press. HISTORY. (2012). The U.S. Constitution. Web, 2012 Accessed 12th November, 2012. Kersch, Ken. (2003). Freedom of Speech: Rights and Liberties under the Law. ABC- CLIO. Wang, Xinyi. (2002). Freedom of Speech" in the United States Constitution: Perspectives, Vol. 2, No. 5. Vanderbilt Law School. Read More