When Is It Ok To Limit Free Speech?

Before you start reading this, let me give you some background information on why it was written.  I’m taking a 100 level (introductory) American Government and Politics course at CCNY.  We were given an assignment that involved writing a 5 to 6 page essay paper on one of three topics.  I chose the third topic:

3) John Stuart Mill argues that government must never censor its citizens, no matter what their opinion. Yet despite having a Bill of Rights, in the U.S. our civil liberties are subject to some limitations. Do you agree that our freedom of expression must sometimes be constricted? Why? To answer this question, you must 1) describe what the Founders wanted to achieve by adding a Bill of Rights to the Constitution, 2) detail the limitations that the Supreme Court has developed over time on either our freedom of speech OR religion, as well as their reasoning for these limitations, and 3) argue, in light of Mill’s theory, whether or not these limitation are legitimate.

Information that’s quoted in the essay is either linked to within the essay, or can be easily looked up, in the case of amendments.  The excerpt of John Stuart Mill’s “On Liberty” that was used to write this paper (as provided) is linked to at the bottom of the post.

Section titles have been added to make it clearer for reading on the web.

(If you came across this while researching for your own paper, please keep in mind that professor’s know how to use Google too, so don’t cut and paste my work and claim it as your own, unless you want to run the risk of being expelled for plagiarism.)

 

Introduction

The First Amendment of the Constitution of the United States reads, “Congress shall make no law […] abridging the freedom of speech”.  Freedom of speech is the ability for citizens to express ideas or opinions without fearing government retribution. Free speech is incredibly important, and powerful.  When there are public disturbances or revolts in other countries, free speech is often the first thing to be taken away from citizens, most often accomplished in modern times by shutting down the country’s Internet access and/or directly controlling information sources.  The First Amendment is one of the ten amendments that compose what is known as the Bill of Rights, and, since its adoption, has been one of the most contentious and well-known of the rights American citizens possess, often leading to Supreme Court cases which have determined the constitutionality of certain types of speech.  Despite the importance of free speech, many of these Supreme Court cases show a clear record of limiting of free speech, when it is in the best interests of the public at large.  To understand why the right to freedom of speech is important, but why it should sometimes be limited, it’s important to understand the origins of the Bill of Rights, to examine Supreme Court cases where the right to freedom of speech was at issue, and to balance it against John Stuart Mill’s ideas as expressed in his book, “On Liberty.”

 

Why Were The Bill of Rights Added and How Does It Relate To Free Speech?

The right to freedom of speech is not guaranteed in the Constitution.  It was a right, added later, by the Bill of Rights, which is a list of the first ten amendments, approved by Congress and ratified by the States.  The Bill of Rights itself was a compromise.  As the Constitution was originally written, the majority of the Founders believed that a Bill of Rights wasn’t necessary, or that it would be redundant, since the rights of individuals were protected by the state constitutions and, as in the case of James Wilson, that “the federal government could exercise only those powers that were expressly delegated to it-and those powers did not extend to violating individual liberties” (James Madison and the Bill of Rights, Jack N. Rackove: http://www.apsanet.org/imgtest/JamesMadison.pdf).  According to Jack N. Rackove, the director of the American Studies Program at Stanford University, James Madison in particular felt that a Bill of Rights was not only unnecessary, but dangerous.  Madison feared that by enumerating the rights of citizens, it would imply that other rights were not protected, or by improper wording, it would create loopholes that would allow for the violations of the very rights the amendments were meant to protect.  This is evident by his later proposal of what became the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  This implies that common sense should be used when determining whether or not someone has an inherent right to do, say, or be protected from something not expressly mentioned in the Constitution or Bill of Rights, which could include protection from misuses of free speech.  It wasn’t until after the Constitutional Convention, when the states were in the process of ratification, that the necessity of a Bill of Rights became apparent.  One of the main arguments of the Anti-Federalists was that if the Federalists were really interested in protecting the rights of the citizens from a powerful national government, those rights would be enumerated and clearly defined (A More Perfect Union:  The Creation of the US Constitution (Introduction), Roger A. Bruns: http://www.archives.gov/exhibits/charters/constitution_history.html).  When it became obvious that ratification of the Constitution was in jeopardy, James Madison eventually gave in to popular opinion and peer pressure and admitted the need for a Bill of Rights.  Notably, Thomas Jefferson wrote Madison a letter in December of 1787, in which he said that a Bill of Rights is “what the people are entitled to against every government on earth”.  Madison began promising that after ratification (if elected to Congress) he would see to it that amendments were added to the Constitution that would be “the most satisfactory provisions for all essential rights,”(George Mason’s “Objections” and the Bill of Rights”, Robert A. Rutland: http://www.apsanet.org/imgtest/GeorgeMason.pdf) though he maintained that it was a “nauseous project” (Rakove).  As the Virginia Representative to the First Federal Congress, he drafted and proposed the amendments that became the Bill of Rights as we know them today.  From Madison’s strong objections to having a Bill of Rights in the first place, we can infer that when he was finally forced to write them, he took great care in what he selected as essential rights that every person should possess, and most people in the US today would likely agree that the right to free speech is one of, if not the, most important, because the ability to speak freely about all things, including politics, keeps the public informed regarding what our government is doing, both good and bad.  We couldn’t form a more perfect government without knowing knowing the imperfections of the then present government, and we can’t elect proper representatives today without having free access to information and the freedom to exchange ideas about their merits and deficiencies.  Given the then recent history of the country, it seems obvious that the desire for federally protected free speech was geared more towards freedom of political speech and expression, the peaceful exchanging of ideas without fear of retribution.  The founders of the country were generally well educated, and it would go beyond reason to assume that they’d want the First Amendment right to freedom of speech to imply that speech of a hurtful or obviously dangerous nature could be construed as Constitutionally protected under the Bill of Rights, and that line of thinking has been upheld by the Supreme Court in future generations.

 

Supreme Court Cases That Restricted Freedom of Speech

Supreme Court decisions have upheld the idea that free speech is important and protected, but that it sometimes must be restricted.  Schenk v. United States, 249 U.S. 47 (1919), is an important example of restricting free speech for the greater good of the country.  During World War 1, Charles Schenk distributed Socialist Party of America propaganda to potential military draftees, urging them to oppose the draft, since he felt it constituted a violation of the Thirteenth Amendment against involuntary servitude.  The court ruled against him, since his efforts created a situation that could undermine the safety of the country in a time of war.  In the unanimous opinion, Justice Oliver Wendell Holmes, Jr. wrote that “when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”  He went on to say that (emphasis added) “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.  […]  The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”  This set a precedent for judging when free speech is acceptable by whether or not it creates a clear and present danger to the public well-being.  In other words, it is partially the government’s responsibility to prevent the misuse of free speech, when it is clearly harmful or creates a dangerous situation.  Furthering that line of thinking is the outcome of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), which introduced the ‘fighting words’ doctrine, which limited free speech for the sake of social stability and preventing breaches of the peace.  In November of 1941, Walter Chaplinsky was arrested and charged under a New Hampshire law that makes it illegal to use intentionally offensive speech, directed at others, in a public place (chap. 378, para. 2 of the NH. Public Laws).  In the unanimous decision, Justice Frank Murphy indicated that there are some types of speech that fall outside of the first amendment’s federally protected right to free speech.  He wrote that “There are certain well-defined and narrowly limited classes of speech […].  These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.  It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  This decision both promoted the limiting of free speech for the purpose of preserving social stability and preventing subsequent illegal activity, as well as supports the idea that free speech, as protected by the first amendment, is solely for the purpose of the exchange of ideas that contribute some value to society.  The Supreme Court case Yates v. United States, 354 U.S. 298 (1957) also helped define when free speech should be limited.  In this case 14 people, members of the Communist Party USA in California, were charged with violating the Smith Act, but they argued that simply advocating a change in government wasn’t the same as actively attempting to overthrow the government.  The Supreme Court ruled that the Smith Act did not prohibit “advocacy of forcible overthrow of the government as an abstract doctrine.”  In other words, it wasn’t a violation of the first amendment to advocate doctrines, but it would be a violation to use free speech to advocate immediate calls to violent action.  These three Supreme Court cases show a continuing theme of limiting freedom of speech when it is necessary for the prevention of harm to the general public, or in some cases, to the government, or both, and support the idea that free speech, as protected by the first amendment, has a certain limited scope and is open to restriction.

 

Balancing The Limitation of Free Speech With John Stuart Mill’s “On Liberty”

In his book, “On Liberty”, John Stuart Mill said that, in regards to the limiting of free speech, “The best government has no more title to it than the worst” (Mill, 22).  He goes on to say that “We can never be sure that the opinion we are endeavoring to stifle is a false opinion and if we were sure, stifling it would be an evil still” (Mill, 23).  Mill goes into great detail about how preventing free speech creates an assumption of infallibility, presuming that our idea is the only right one and is therefore the only one that should be heard.  He argues that, throughout history, ideas have been proposed, and that only through the test of discourse have any ideas been proven more correct than others, or that they are erroneous.  Mill says that wisdom can only be gained by defending a position against all comers, and that only after that defense of position can a man truly believe that his opinion is the correct one, even though he may at a later time be proven wrong by successive generations.  Throughout his work, however, we see that Mill is simply arguing for the free exchange of ideas.  At no point does he say (in the excerpt provided) that using free speech to create panic, injury, or danger is acceptable.  Based on his arguments in “On Liberty”, one could guess that he would consider such a use of free speech to be wholly criminal, and a perversion of what he argued so passionately for.

 

Closing

The creation of a Bill of Rights to accompany the US Constitution defined explicitly our right to free speech, guaranteed by the First Amendment.  However, nowhere in the First Amendment or elsewhere in the Constitution or the amendments does it say that we have the right to use free speech to endanger other people, the country, or to cause hurtful verbal injury to another person.  It can be inferred by examining the Constitution and Bill of Rights, considering the situation the Bill of Rights was written in, and other writings of the times what was actually meant by the term free speech and over the years successive Supreme Court cases have reinforced that idea.  It is safe to say that free speech has its limits, and those limits are well justified in being instituted.