Freedom of Speech

Although the First Amendment to the United States Constitution was ratified in 1791, it took generations of Supreme Court justices to reshape the meaning of those rights into the protections that we know today. Originally, the text was not only meant to prevent “prior restraint,” or censorship, of speech and writing, but also to allow for punishment after the fact, called “subsequent punishment,” for any harmful actions that resulted from those words. In its first decade of existence, the amendment was undermined by the passage of the 1798 Sedition Act, which punished opponents of President John Adams and the Federalist Party majority in Congress for speaking or writing critically about the government. Only after Thomas Jefferson became president in 1801, and his supporters were freed from prison, had their fines repaid, and were pardoned, were people free to criticize the federal government once again. But they still had no protections at the state level because the First Amendment did not apply to those jurisdictions until the early 1900s.

During World War I, the government arrested people who protested against the military draft and the government’s war policy. In 1919, when appeals from those cases came to the Supreme Court, Justices Oliver Wendell Holmes and Louis D. Brandeis created the “clear and present danger” test, limiting the government’s ability to regulate or ban speech to cases where the actions resulting from the speech presented “a clear and present danger of a substantive evil that Congress had a right to prevent.” This meant that the danger to the government and society had to be immediate and real. In those early cases, the emergency of being at war permitted regulation. Later that year, Holmes argued that dissenting views should be tolerated to create a “free marketplace of ideas” that functioned without interference from the government.

By 1928, Holmes and Brandeis expanded their protective reach by arguing that in order for government to limit speech, “the evil apprehended [must be] so imminent that it may befall before there is opportunity for full discussion.” In 1951, the Court abandoned the clear and present danger test to allow for the punishment of the leaders of the American Communist Party, who were seen as threatening to overthrow the government of the United States. In a balancing test called the “gravity of the evil” test, the justices ruled that the government needed to prove “whether the gravity of the ‘evil,’ discounted by its improbability,” justified limiting free speech in order to “avoid the danger.” Since the Communist Party was seen by the Court as a dire governmental threat, the government would only have to prove that there was the smallest likelihood of their success to justify censorship and imprisonment. It was not until 1969, in a case called Brandenburg v. Ohio dealing with a Ku Klux Klan rally where members brought guns and burned a cross, that the Court created the modern, nearly total, protection for free speech. Now speech can only be punished “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

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