The Ongoing Challenge to Define Free Speech

Freedom of speech, Supreme Court Justice Benjamin Cardozo declared more than 80 years ago, “is the matrix, the indispensable condition of nearly every other form of freedom.” Countless other justices, commentators, philosophers, and more have waxed eloquent for decades over the critically important role that freedom of speech plays in promoting and maintaining democracy.

Yet 227 years after the first 10 amendments to the U.S. Constitution were ratified  in 1791 as the Bill of Rights, debate continues about the meaning of freedom of speech and its First Amendment companion, freedom of the press.

This issue of Human Rights explores contemporary issues, controversies, and court rulings about freedom of speech and press. This is not meant to be a comprehensive survey of First Amendment developments, but rather a smorgasbord of interesting issues.

One point of regular debate is whether there is a free speech breaking point, a line at which the hateful or harmful or controversial nature of speech should cause it to lose constitutional protection under the First Amendment. As longtime law professor, free speech advocate, author, and former American Civil Liberties Union national president Nadine Strossen notes in her article, there has long been a dichotomy in public opinion about free speech. Surveys traditionally show that the American people have strong support for free speech in general, but that number decreases when the poll focuses on particular forms of controversial speech.

The controversy over what many call “hate speech” is not new, but it is renewed as our nation experiences the Black Lives Matter movement and the Me Too movement. These movements have raised consciousness and promoted national dialogue about racism, sexual harassment, and more. With the raised awareness come increased calls for laws punishing speech that is racially harmful or that is offensive based on gender or gender identity.

At present, contrary to widely held misimpressions, there is not a category of speech known as “hate speech” that may uniformly be prohibited or punished. Hateful speech that threatens or incites lawlessness or that contributes to motive for a criminal act may, in some instances, be punished as part of a hate crime, but not simply as offensive speech. Offensive speech that creates a hostile work environment or that disrupts school classrooms may be prohibited.

But apart from those exceptions, the Supreme Court has held strongly to the view that our nation believes in the public exchange of ideas and open debate, that the response to offensive speech is to speak in response. The dichotomy—society generally favoring free speech, but individuals objecting to the protection of particular messages—and the debate over it seem likely to continue unabated.

A related contemporary free speech issue is raised in debates on college campuses about whether schools should prohibit speeches by speakers whose messages are offensive to student groups on similar grounds of race and gender hostility. On balance, there is certainly vastly more free exchange of ideas that takes place on campuses today than the relatively small number of controversies or speakers who were banned or shut down by protests. But those controversies have garnered prominent national attention, and some examples are reflected in this issue of Human Rights.

The campus controversies may be an example of freedom of speech in flux. Whether they are a new phenomenon or more numerous than in the past may be beside the point. Some part of the current generation of students, population size unknown, believes that they should not have to listen to offensive speech that targets oppressed elements of society for scorn and derision. This segment of the student population does not buy into the open dialogue paradigm for free speech when the speakers are targeting minority groups. Whether they feel that the closed settings of college campuses require special handling, or whether they believe more broadly that hateful speech has no place in society, remains a question for future consideration.

Few controversies are louder or more visible today than attention to the role and credibility of the news media. A steady barrage of tweets by President Donald Trump about “fake news” and the “fake news media” has put the role and credibility of the media front and center in the public eye. Media critics, fueled by Trump or otherwise, would like to dislodge societal norms that the traditional news media strives to be fair and objective. The norm has been based on the belief that the media serves two important roles: first, that the media provides the essential facts that inform public debate; and, second, that the media serves as a watchdog to hold government accountable.

The present threat is not so much that government officials in the United States will control or even suppress the news media. The Supreme Court has probably built enough safeguards under the First Amendment to generally protect the ability of the news media to operate free of government interference. The concern is that constant attacks on the veracity of the press may hurt credibility and cause hostility toward reporters trying to do their jobs. The concern is also that if ridicule of the news media becomes acceptable in this country, it helps to legitimize cutbacks on freedom of the press in other parts of the world as well. Jane E. Kirtley, professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota and past director for 14 years of the Reporters Committee for Freedom of the Press, brings her expertise to these issues in her article.

Other current issues in our society raise interesting free speech questions as well. It is well-established law that the First Amendment’s free speech guarantee only applies to government action. It is the government— whether federal, state, or local—that may not restrict freedom of speech without satisfying a variety of standards and tests that have been established by the Supreme Court over the past century. But the difference between government action and private regulation is sometimes a fine line. This thin distinction raises new questions about freedom of speech.

Consider the “Take a Knee” protests among National Football League (NFL) players expressing support for the Black Lives Matter movement by kneeling during the National Anthem. On their face, these protests involve entirely private conduct; the players are contractual employees of the private owners of the NFL teams, and the First Amendment has no part to play. But what could be more public than these protests, watched by millions of people, taking place in stadiums that were often built with taxpayer support, debated by elected politicians and other public officials, discussed by television commentators because of the public importance of the issue. That is not enough to trigger the application of the First Amendment, but should it be? First Amendment scholar David L. Hudson Jr., a law professor in Nashville, considers this and related questions about the public-private distinction in his article.

Another newly emerging aspect of the public-private line is the use of social media communications by public officials. Facebook and Twitter are private corporations, not government actors, much like NFL team owners. But as one article exams in this issue, a federal court recently wrestled with the novel question of whether a public official’s speech is covered by the First Amendment when communicating official business on a private social media platform. In a challenge by individuals who were barred from President Trump’s Twitter account, a federal judge ruled that blocking access to individuals based on their viewpoint violated the First Amendment. If the ruling is upheld on appeal, it may open up an entire new avenue of First Amendment inquiry.

One aspect of current First Amendment law is not so much in flux as in a state of befuddlement. Courts have long wrestled with how to deal with sexually explicit material under the First Amendment, what images, acts, and words are protected speech and what crosses the line into illegal obscenity. But today that struggle that has spanned decades seems largely relegated to history because of technology. The advent of the relatively unregulated Internet has made access to sexually explicit material virtually instantaneous in the home without resort to mailed books and magazines or trips to adult bookstores or theaters.

In his article, law professor and First Amendment scholar Geoffrey R. Stone elaborates on much of the legal and social history and current challenges in handling sexually explicit material, drawing on his own 2017 book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.

If there is a unifying theme in the articles in this issue of Human Rights, it may be that while as a nation, we love our freedoms, including freedom of speech and freedom of the press, we are never far removed—even after more than two centuries—from debates and disputes over the scope and meaning of those rights.

Stephen J. Wermiel is a professor of practice of constitutional law at American University Washington College of Law. He is past chair of the American Bar Association (ABA) Section of Civil Rights and Social Justice and a current member of the ABA Board of Governors.

The views expressed here are the author's and do not reflect those of the ABA Board of Governors.