College and University Blog

Freedom of speech, of the press, of association, of assembly, and petition comprises what we refer to as freedom of expression. Without it, other fundamental rights would cease to exist. Despite it being the core of our constitution, our commitment to freedom of expression has been tested over and over again. People exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have sometimes suffered the wrath of the government. During WWI, a person could be jailed for handing out anti-war leaflets. This was a time of evolution for the First Amendment. We now live in the most speech-protected country in the world.

In 1969, in Brandenberg v. Ohio, it was decided that speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today. First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. This may include works of art, armbands in protest, or t-shirts.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant, and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

There has always been controversy for defending the free speech rights of groups that spew hate. If only popular ideas were protected, we wouldn’t need a First Amendment. Freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

The Supreme Court has recognized the government’s interest in keeping some information secret. The Court has never actually upheld an injunction against speech on national security grounds. The amount of speech that can be curtailed in the interest of national security is very limited and the government has historically overused the concept of “national security” to shield itself from criticism. This also discourages public discussion of controversial policies or decisions. The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making.

The Supreme Court has recognized several exceptions to First Amendment protection.

Posted on 05 Feb