Freedom of speech is a person’s right to speak his or her own opinions, beliefs, or ideas, without having to fear that the government will retaliate against him, restrict him, or censor him in any way. The term “freedom of expression” is often used interchangeably, though the “expression” in this sense has more to do with the way in which the message is being communicated (i.e. via a painting, a song, an essay, etc.). The concept of freedom of speech dates back to a time long before the Constitution was drafted, potentially as far back as Athens in 5th or 6th centuries, B.C. To explore this concept, consider the following freedom of speech definition.
Definition of Freedom of Speech
- The right to express your beliefs, ideas, and opinions without the fear of governmental reprisal or censorship.
5th or 6th Century B.C. Ancient Greece
What is Freedom of Speech
Freedom of speech is the right afforded to a person to be able to speak his or her mind without fear that the government will censor or restrict what they have to say, or will retaliate against them for expressing himself. People are often confused by this concept, however, thinking that they can say anything that pops into their heads without repercussion. Just because you are allowed to say whatever you want does not mean that you will not suffer consequences as a result – it just means that the government cannot violate your right to do so.
The U.S. has many laws that place limits on speech and other forms of expression, which may be seen as harsh restrictions. These include prohibitions against defamation, slander, copyright violations, and trade secrets, amongst others. American philosopher Joel Feinberg posited what is known as the “offense principle,” which works to prohibit speech that is clearly offensive, or which can harm society as a whole, or a group in particular, such as racial hate speech, or hate speech aimed at someone’s religion.
Different countries have different rules insofar as freedom of speech is concerned, with some countries’ governments becoming more involved than other governments in the affairs of their citizens. Communist countries like China are often in the news for blocking their citizens’ access to the internet, and restricting their ability to both read and express ideas and beliefs of which their government does not approve. Here in the United States, examples of freedom of speech include criticisms against the government, and the promotion of ideas or beliefs that others might find to be controversial. In the U.S., these kinds of statements are allowed, within the constraints of the “offense principle,” or the “harm principle.”
Freedom of Speech Amendment
The concept of freedom of speech came into being in the United States back in the 1780s, when Anti-Federalists, like Thomas Jefferson and Patrick Henry, expressed their concerns that the federal government could eventually become too powerful. To keep the government in check, the Bill of Rights was drafted, which gave us, among other guarantees, freedom of speech, as detailed in the First Amendment to the U.S. Constitution, which can also be considered the Freedom of Speech Amendment:
“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.”
In addition to offering citizens protection from government interference in the expression of their ideas, the Freedom of Speech Amendment also them with the freedom to exercise one’s religion free from persecution. This is known as the Free Exercise Clause. Under this clause, citizens are permitted to adopt any religion they choose, and to take part in the rituals that the religion dictates.
Similarly, the Establishment Clause prevents the government from establishing one official religion that the country’s citizens all must follow. It also prevents the government from developing a preference for, or promoting one religion over another, religion over the lack of religion, or non-religion over religion.
In short, the Constitution guarantees that all people may worship who or how they may, but the federal government has no say in the matter, and may not adopt an official stance. There has been some misunderstanding about this “Separation of Church and State” clause, as it does not prohibit people from expressing their religious preferences in public, but only prevents a governmental entity from promoting any religion over another.
Freedom of the press, which allows publications to print opinions free of governmental censorship, is also permitted under the Freedom of Speech Amendment. Additionally, those who wish to gather in protest against the government are permitted, under the First Amendment, to “assemble peaceably,” which is why protests are permitted on public property, so long as they remain peaceful.
Freedom of Speech Quotes
Throughout time, people have craved, even when it was denied them, the right to freely express themselves. Freedom of speech quotes have survived centuries, to be used again and again, as people fight for this basic human right. What follows are ten great examples of freedom of speech quotes, wherein folks have either defended the policy as is, or have defended the laws that keep freedom of speech in check.
“If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” – Noam Chomsky
“Freedom of speech is useless without freedom of thought.” – Spiro Agnew
“Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech.” – Benjamin Franklin
“There has to be a cut-off somewhere between the freedom of expression and a graphically explicit free-for-all.” – E.A. Bucchianeri
“For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and, dumb and silent we may be led, like sheep, to the slaughter.” – George Washington
“Those who make conversations impossible, make escalation inevitable.” – Stefan Molyneux
“Freedom of speech is a guiding rule, one of the foundations of democracy, but at the same time, freedom does not imply anarchy, and the right to exercise free expression does not include the right to do unjustified harm to others.” – Raphael Cohen-Almagor
“Freedom of speech gives you the right to stay silent.” – Neil Gaiman
“Should freedom of speech include the freedom to tell lies? Who decides what is true and what is a lie? Should the young and impressionable be exposed to propaganda deliberately designed to make them hate others? If we deny the deniers the right to spread their venom, are we then putting our own right to free speech at risk? At which point does hate speech so directly provoke violence that it should be banned?” – Ted Gottfried
“Two things form the bedrock of any open society: freedom of expression and rule of law. If you don’t have those things, you don’t have a free country.” – Salman Rushdie
Freedom of Speech Examples in Legal Cases
More than inspirational freedom of speech quotes, the issue has inspired a number of court cases over the years. Some examples of freedom of expression and freedom of speech cases are discussed below in more detail:
Gitlow v. New York (1925)
In the first case to ever be tried by the American Civil Liberties Union, Benjamin Gitlow had been charged with criminal anarchy, after he printed the “Left Wing Manifesto” in his publication The Revolutionary Age. He defended the piece as being an historical analysis of the concept of communism, rather than acting as an advocate for the system. He was convicted upon the completion of his trial and was ordered to serve five to ten years in prison.
Gitlow appealed the conviction, and his appeal was granted, after he had already served two years at Sing Sing. He was released on bail, only to be re-incarcerated three years later when the Supreme Court upheld the original conviction.
The Court ultimately determined that publication of the “Left Wing Manifesto” was indeed a crime. Despite having served as a leader of the Communist Party in the late 1920s, Gitlow publicly rejected the party in 1939, having become an outspoken anti-communist in 1934, and he remained one of the leading opponents of communism until his death on July 19, 1965.
Brandenburg v. Ohio (1969)
In 1969, Ku Klux Klan leader, David Brandenburg, was convicted of criminal act, one of which was advocating “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
This followed his participation in a 1964 Klan rally in Cincinnati, Ohio, which Brandenburg had asked a local reporter to cover. During the rally, Brandenburg made a speech against the government, claiming that the government was “suppressing the Caucasian race.”
The court convicted Brandenburg, fining him $1,000, and sentencing him to one to ten years in prison. Brandenburg appealed, saying that his right to freedom of speech under the First and Fourteenth Amendments had been violated. His appeal was denied by both the Ohio First District Court of Appeal and the Supreme Court of Ohio, with the latter flat-out dismissing it without even offering an opinion.
This case led to the establishment of what is known as the Brandenburg Test, which is the standard by which potentially inflammatory speech is measured. Speech can only be prohibited if (1) it is “directed to inciting or producing imminent lawless action,” and (2) it is “likely to incite or produce such action.”
Related Legal Terms and Issues
- Anti-Federalist – A political movement that opposed the creation of a stronger U.S. federal government, and opposed the ratification of the Constitution in 1787.
- Defamation – An intentional false statement that harms a person’s reputation, or which decreases the respect or regard in which a person is held.
- Copyright – A legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work.
- Slander – An intentional false statement that harms a person’s reputation, or which decreases the respect or regard in which a person is held.
- Trade Secrets – Designs, practices, processes, commercial methods, techniques, or information that is not generally known by others, which gives a business an advantage over competitors.
In this essay from the National Constitution Center's Interactive Constitution project, Geoffrey R. Stone from the University of Chicago Law School and Eugene Volokh from the UCLA School of Law explain the meanings and limitations of free speech and a free press under the First Amendment.
“Congress shall make no law . . . abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.
Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.
The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.
The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.
There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.
1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:
a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).
b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).
c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence. For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).
d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.
e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).
g. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).
Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.
2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information.Pickering v. Board of Education (1968).
3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).
Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).
But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.
Geoffrey R. Stone is Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School. Eugene Volokh is Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law.
To read more from these authors on Matters of Debate about freedom of speech and freedom of the press, go to our Interactive Constitution First Amendment section at http://goo.gl/8DrRCC.