It’s time to dip my toe into the waters of controversy over freedom of speech. The topic is hard to ignore because it’s been in the news a lot the past few years. The issues vary from the Citizens United decision to the kerfuffle over athletes “taking the knee” during the playing of the National Anthem at sporting contests.
These two issues illustrate the influence of words, actions, and money regarding the distribution of power in our system of government in the United States. The two issues trigger much heated social debate. The controversy involves what, if any, restrictions we can have without violating the spirit and the letter of the law as set forth in the First Amendment to the US Constitution.
Society understands that freedom of expression is the ability to act, write, speak, or create artistic media without limitation or censorship. Freedom of expression is key to the communication of information and ideas in print media, broadcasting, Internet, advertising, and the arts. Freedom of expression is integral to the ideals of freedom of thought and conscience.
As you may know, in 2010, The Supreme Court handed down their controversial decision on “Citizens United vs. Federal Election Commission”. This demolished nearly all the political campaign monetary restrictions. The ruling said that such spending is protected under the First Amendment. The result has given corporations, organizations, and wealthy individuals unfettered power to finance campaigns for political office and political issues. The aftermath has effectively unbalanced the power structure in the United States in favor of the well-to-do and against people of lesser means.
The current issue regarding the US Flag and National Anthem has again resurrected the controversy regarding the right we have not to speak. This issue was decided in the Supreme Court’s 1943 case of “West Virginia Board of Education vs. Barnette”. This dispute was if we have the right not to salute the flag. The court decided that we do have that right.
There are some legal restrictions on freedom of expression. Some of these restrictions remain highly controversial.
Less controversial is the famous shouting “fire” in a crowded theater. That was prohibited in the 1919 ruling in favor of the government in “Schenck vs. United States”. The decision prohibits inciting actions that harm others.
Much more controversial is the prohibition against the creation and distribution of obscene materials. This was ruled on in the 1957 case of “Roth vs. United States”. The ruling remains controversial because social definitions of obscenity remain subjective, not objective. There is also the very narrow prohibition against the burning of draft cards as an anti-war protest. This happened in the midst of the anti-Vietnam War activity. Draft card burning became illegal in 1968 with “United States vs. O’Brien”.
There are a host of restrictions on free expression directed exclusively at students. One that still raises a lot of ire is the restriction of the printing of student authored articles in school newspapers over the objections of school officials. The decision from “Hazelwood School District vs. Kuhlmeier” seems unfair on its face. However, students can now get around the restrictions of their rights by using non-school media, such as mainstream newspapers, broadcasters, and the Internet.
Freedom of Speech was addressed by two nations in 1789. The French “Declaration of the Rights of Man and of the Citizen” guaranteed free communication of ideas and opinions, including religious views. The United States Bill of Rights was introduced that same year and went into effect in 1791.
In the 1800s, numerous governments passed laws or adopted constitutions guaranteeing freedom of expression to their citizens. Following the second World War, the United Nations adopted the “Universal Declaration of Human Rights”. This proclaims the rights of freedom of speech and freedom of conscience to all people.
The right to freedom of expression not only inspired me to write this blog post, but allows you the right to read it.
The Blue Jay of Happiness quotes author and jurist Alan Dershowitz. “Freedom of speech means freedom for those who you despise, and freedom to express the most despicable views. It also means that the government cannot pick and choose which expressions to authorize and which to prevent.”