The Free Speech clause of the 1st Amendment directs the federal government to make no laws “…abridging the freedom of speech, or of the press…” This was Thomas Jefferson’s baby. As 18th century political philosophers debated restrictions on individual liberties for the good of government, Jefferson remained a staunch advocate of freedom of the press, asserting as much in a January 28, 1786, letter to Virginia physician James Currie. "…our liberty depends on the freedom of the press, and that cannot be limited without being lost."
The press became very useful in the Federalist efforts to persuade voters in New York to ratify the new constitution. Over a two-year period from 1787-1788, a unique collection of 85 essays, authored by Alexander Hamilton, James Mason, and John Jay, were published in New York newspapers. In Federalist No. 84, Alexander Hamilton declares that “the liberty of the press shall be inviolably preserved.”
This inviolability would be tested many times over the subsequent 220 years.
The first major test came in 1798 when President John Adams ram-rodded the Alien and Sedition Acts through Congress. These consisted of four bills intended to prevent the publication of anything critical of the government. The acts were opposed by James Madison and Thomas Jefferson as unconstitutional. The unpopular acts were allowed to expire in 1802, and as President, Jefferson pardoned all those who had been convicted under their authority.
It wasn’t until 1907 that the Supreme Court saw its first freedom of the press case. In Patterson v. Colorado the Court declined to hold that the First Amendment applied to the states. The case involved the contempt conviction of Rocky Mountain New publisher Thomas Patterson for articles and a cartoon that criticized the state supreme court. The decision, written by Justice Oliver Wendell Holmes, Jr., did not decide the question of whether 1st Amendment guarantees are applicable to the states via the 14th Amendment.
Over the next dozen years Congress passed several laws that were certain to be tested against the 1st and 14th amendments. These included the Espionage Act of 1917, which made it illegal to "willfully obstruct the recruiting or enlistment service of the United States", and the Sedition Act of 1918, which forbade “spoken or printed criticism of the U.S. government, the Constitution or the flag.” A new organization called the Civil Liberties Bureau (forbearer of the ACLU) was formed in response to these laws.
The 1919 case Schenck v. U.S. was the first test of these statutes, and Justice Holmes again wrote the opinion. Schenck was accused of urging opposition to the draft by “the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service.” This is the case that spawned the “clear-and-present-danger test”, with Justice Holmes citing the infamous example of shouting "fire" in a crowded theater.
Other cases over the next several years were tried on 1st Amendment grounds, but it wasn’t until 1925, In Gitlow v. New York that the Court permitted application of the 1st Amendment to the states through the due-process clause of the Fourteenth Amendment.
It got ugly over the next several years
Censorship came in many forms. The late 1940’s House Un-American Activities Committee hearings that lead to Hollywood blacklisting, and the 1953 rise of Wisconsin Senator Joe McCarthy with his Senate Permanent Subcommittee on Investigations were described by former President Harry S. Truman as “…the most un-American in the country today.”
In Cox v. Louisiana the Court ruled that "rights to free speech and assembly...do not mean that everyone with opinions...may address a group at any public place and at any time."Public order must be maintained or "liberty itself would be lost in the excesses of anarchy." The Court recognized several forms of speech restrictions including: (1) libel and slander that harm reputations; (2) speech that offends public decency by using obscenities or encouraging acts considered immoral; (3) laws against spying, treason, and urging violence that endangers life, property, or national security; and, (4) speech that invades peoples' right not to listen, such as city ordinances limiting the use of loudspeakers on public streets.
Lawmakers seem bent on nibbling away at the Jeffersonian ideal of free speech. With the advent of cyberspace and the impending demise of Gutenberg’s medium, Congress seems to have redoubled their efforts. The 1995 Communications Decency Act was challenged and overturned in less than a year. Now we have the Broadcast Decency Enforcement Act of 2005. Representative Gary Ackerman of New York’s 56th District made an impassioned plea on the House floor in an attempt to derail passage of the bill. In his message he illustrated the futility of such attempts to legislate from moral pulpits. The measure passed.
Although we seem to pride ourselves on our strong defense of the freedom of speech, we are obviously not immune from temptation. Neither are we free from repugnant, repulsive speech that tests the limits of our support. The perfect example is the good Rev. Fred Phelps and the congregation of the Westboro Baptist Church. Due to the adverse public reaction to this crew, 27 states and the U.S. Congress have limited protests at funerals. We have to ask, is this a good thing – or did we cross constitutionally permissible boundaries by imposing overly vague restrictions on free speech and assembly?
By giving the state the power to ban the offensive speech of a few, we give the state the power to limit fundamental rights for us all. Is it worth it?