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Freedom of Speech and Expression

The First Amendment to the U.S. Constitution provides that “Congress shall make no law … abridging the freedom of speech.” The rights protected under the First Amendment are among the freedoms most cherished by Americans. Democratic societies by definition are participatory and deliberative. They are designed to work best when their representative assemblies conduct informed deliberation after voters voice their opinions about particular issues or controversies. But neither elected representatives nor their constituents can fully discharge their democratic responsibilities if they are prevented from freely exchanging their thoughts, theories, suspicions, beliefs, and ideas, or are hindered from gaining access to relevant facts, data, or other kinds of useful information upon which to form their opinions.

The theory underlying the Free Speech Clause of the First Amendment is that truthful and accurate information can only be revealed through robust and uninhibited discourse and that the best way to combat false, deceptive, misleading, inaccurate, or hateful speech is with countervailing speech that ultimately carries the day with a majority of the populace and its elected representatives. Of course, the majority is not always persuaded by countervailing truthful and accurate speech, especially in capitalistic democracies where factions that spend the most money tend to have the loudest and most prevalent voices through radio and television advertisements. Supreme Court Justice Oliver Wendell Holmes articulated an extreme view of the risks underlying freedom of speech when he wrote “that a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell.” (Levinson). Similarly, Holmes wrote that freedom of speech does not protect “free thought for those who agree with us, but freedom for the thought that we hate.” U.S. v. Schwimmer, 279 U.S.644, 49 S. Ct. 448, 73 L. Ed. 889 (1929).

The Supreme Court has never literally interpreted the Free Speech Clause as an absolute prohibition against all restrictions on individual speech and expression. Instead, the Supreme Court has identified several kinds of expression that the government may regulate to varying degrees without running afoul of the Constitution, including the following: speech that incites illegal or subversive activity; fighting words; symbolic speech; commercial speech; stu-dent speech; and obscenity and pornography. The degree to which the government may regulate a particular kind of expression depends on the nature of the speech, the context in which the speech is made, and its likely impact upon any listeners. However, both state and federal courts will apply the same level of scrutiny to government regulation of free speech under the First Amendment, since the Free Speech Clause has been made applicable to the states via the Fourteenth Amendment’s Equal Protection and Due Process Clauses. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 2d 1138 (1925).

Inside Freedom of Speech and Expression