Freedom of Speech Clause

The Freedom of Speech Clause of the First Amendment is one of the most valuable and precious rights guaranteed to Americans in the United States Constitution. At the same time, it is one of the most abused rights by Americans. The Freedom of Speech Clause of the 1st Amendment reads like this:

"Congress shall make no law... abridging the freedom of speech."

is valued by most people as a God given right that is so important, it must be guaranteed by the government. Americans after the Revolutionary War decided they did not want the government restricting their speech. In general, at the time of the writing of the Constitution, the concern about protecting free speech was in regard to protecting political speech.

They wanted to be able to express their opinions about political candidates and laws they might pass. If the government was allowed to censor viewpoints it didn't like, the people would end up with a government that favored certain people who had political power and oppressed everyone else who did not agree.

History of the Freedom of Speech Clause

James Madison

In addition to concerns about freedom of political expression, early Americans were concerned about freedom of religious speech. Both English and colonial history had featured incidents of the religious views of some people being prohibited. These Americans wanted their right to express their views to be safeguarded from this type of government regulation.

James Madison proposed the Freedom of Speech idea to Congress when he gave a speech to the First Congress on June 8, 1789, In this speech, Madison proposed several amendments to the Constitution in response to the concerns of Anti-Federalists that the Constitution was not strong enough in protecting certain rights. You can read Madison's entire June 8, 1789 speech here.

Madison's speech proposed two separate phrases about the freedom of speech to be added to the Constitution. The first part said, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable." The second phrase said this, "No state shall violate the equal rights of conscience, or of the press."

Obviously Congress liked the first idea because it became part of the First Amendment. The second part though was rejected by Congress. At the time, Congress did not like the idea of prohibiting the states from restricting certain rights, only the federal government. Later on, after the Civil War and the Fourteenth Amendment, which called for all citizens to be treated equally, the Courts began applying restrictions in the Bill of Rights, including the prohibition against making laws inhibiting Freedom of Speech, to the States.

A famous incident occurred regarding Freedom of Speech in 1798 when Congress passed the Alien and Sedition Acts. In this Act, all slandering or criticism of the government or its officials was outlawed. Many people believe this was solely an act of political calculation by President John Adams and his party leaders who feared they were about to lose control of the government. Several people were tried under this act and convicted.

The law was never tried by the Supreme Court but there was vigorous public debate about it. Eventually, in 1801, Adams' party, the Federalists, did lose the White House to Thomas Jefferson's Democratic-Republican party (what is today the Democrat Party), and the law was allowed to expire that year.

The First Amendment's protections for the Freedom of Speech went further than any English law had ever gone. The Magna Carta of 1215 did not protect free speech, neither did the English Bill of Rights of 1689.

Freedom of Speech Clause Interpretation

The Freedom of Speech Clause has been interpreted in various ways. Some people believe that it protects absolutely any speech, anytime. Some people believe there can be reasonable restrictions on Freedom of Speech, such as making it against the law to yell "Fire!" in a crowded theater. Some people believe that words only are protected by the Freedom of Speech Clause, while others say that any type of expression through art, literature, symbols or symbolic acts are protected as well.

The Courts have always agreed that not all speech was protected. The following list includes some of the most common types of speech that are not protected:

1. Defamation (meaning slander and libel)
2. Threatening or fighting words
3. Treason
4. Obscenity
5. Lying in court (perjury)
6. Profanity
7. Speech containing copyright infringements
8. Sedition
9. Trade secrets
10. Words that promote lawless activity
11. Words that cause contempt of court

The Supreme Court heard a few Freedom of Speech cases before the 1900's, but not many. During the 1800s and early 1900s, most Free Speech cases were pushed by labor union organizations who wanted to be heard. In many cases these groups were restricted by the government.

Freedom of Speech Clause -
The Freedom of Expression

In the last half century, many Freedom of Speech cases have centered on whether or not people have the right to publish or say or do something that some find objectionable, such as possess child pornography, disagree that homosexuals are "born that way" or burn the flag in protest of the American government. This can loosely be called Freedom of Expression. In other words, people can express their beliefs however they want.

James Madison, notably, who proposed the Freedom of Speech Clause to the First Congress, did not agree with this idea of Freedom of Expression. Vincent Blasi, James Madison Distinguished Professor of Law at the University of Virginia, has said about Madison, "The First Amendment is not about self-expression, the search for truth as an end in itself, or even the opportunity for political participation as a means of self-fulfillment - it is about checking abuses of power." So Madison saw the Amendment primarily as being about the freedom of political speech. He did not even cite the First Amendment in criticizing the Sedition Act.

Supreme Court

The Supreme Court generally though has considered Freedom of Expression to be included in the Freedom of Speech Clause. So it has ruled that Flag burning is protected, in spite of the protests of most Americans. The Court has generally ruled that speech combined with activities, such as picketing, can be regulated in some ways. The activities can be regulated, but the speech cannot. So the government could form a designated place for picketers at certain events. They would not be allowed to picket at other places and this would be permissible.

During the Vietnam era, the Court made a noticeable departure from this principle. Some people were burning draft cards in protest against the war. This was illegal and some people were prosecuted for it. The Court ruled that this was not protected speech because the government was not specifically trying to squash their dissent.

Freedom of Speech Court Cases

This was a very different decision than the one it made regarding flag burning in a 1989 case called Texas vs. Johnson. In it, the Supreme Court ruled that flag burning was protected speech and that the "government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Congress responded to this decision by passing the Flag Protection Act of 1989 making it a federal crime to desecrate a flag. The Court also threw this Act out as unconstitutional. Since then, Congress has tried consistently to pass a constitutional amendment barring desecration of the flag, but has not thus far been successful. All 50 states have passed resolutions saying that they would support such an amendment if Congress were to pass it.

Freedom of Speech Clause - The Public Forum

One concept central to Freedom of Speech is the public forum. Public forums are places such as parks, city squares or other places people may gather in public. The government cannot discriminate in allowing some groups to speak out in these areas and not others. It can, however, regulate the time, manner and place of speech in these places. So, for example, the government could prevent loud concerts or demonstrations at night, but could not say that only Christians or anti-abortion activists can not do this.

2008 Supreme Court of the United States

The Supreme Court has ruled that students in school do not have exactly the same free speech rights that adults do. In general, the adults controlling the school can regulate the speech of students in publications or other forums where the speech is believed to be somehow violating or undermining the educational mission. So, for example, the school could prevent a student from giving a sexually suggestive speech, or from promoting illegal behavior.

Students do not, though, lay down their constitutional rights at the school door. In a very famous First Amendment Supreme Court case called Tinker vs. Des Moines School District, in 1969, students who had been expelled for wearing black armbands protesting the Vietnam War, were judged to have had their right to Freedom of Speech unjustly violated. The Court said that they had the right to express this symbolic representation of their belief against the war. The Court said the school could only restrict student speech if it were to "materially and substantially disrupt" the classroom.

Freedom of Speech Clause -
Campaign finance reform

One area of contention regarding the Freedom of Speech Clause is whether or not the government can regulate the amounts given and spent during political campaigns. The Court ruled in 1976 that the government could not put limits on individual expenditures if they were done apart from the official campaign of a candidate, but that the amount of a donation from an individual to a campaign could be regulated.

The reason for regulation is that some people believe that very large donors such as wealthy corporations or individuals would have a larger influence on the political process than small donors. So they want to make the amount any individual donor can make equal. Other people see this as an absolute violation of free speech because the government is in effect telling people how much they can support a candidate.

For a complete list of Supreme Court cases having to do with the Freedom of Speech Clause, please click here and pick the topic of your choosing from a list of Freedom of Expression topics, all having to do with Freedom of Speech, Freedom of the Press, Freedom of Assembly and Freedom to Petition the Government.

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Revolutionary War and Beyond!

If you would like to read about the meanings of each amendment, go to the First Ten Amendments page here.

Read about other clauses of the First Amendment:

Opening Phrase
Establishment Clause
Free Exercise Clause
Freedom of the Press Clause
Freedom of Assembly Clause
Freedom of Petition Clause

Preamble to the Bill of Rights
Learn about the 1st Amendment here.
Learn about the 2nd Amendment here.
Learn about the 3rd Amendment here.
Learn about the 4th Amendment here.
Learn about the 5th Amendment here.
Learn about the 6th Amendment here.
Learn about the 7th Amendment here.
Learn about the 8th Amendment here.
Learn about the 9th Amendment here.
Learn about the 10th Amendment here.

Read the Bill of Rights here.

Learn more about the Bill of Rights with the following articles:

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