Civility and Free Expression in the Public Square

Civility and Free Expression in the Public Square




The “public square” is at the heart of American democracy. It is both a metaphorical symbol of our commitment to First Amendment freedoms of speech, assembly, press, and religion and a robust collection of real places where debates, political expression, and protests take place. In settings as diverse as street corners, shopping malls, town halls, barber shops, colleges, and outside of abortion clinics and funeral services for soldiers, Americans from different walks of life come together to listen, discuss, debate, and protest. But the practices of democracy are often messy.

Protesters become loud and unruly; groups with opposing points of view try to shout one another down. Scuffles, violence, and arrests sometimes ensue. Special interests choose locales to gather and march that are designed to offend the targets of their protest. The language, signs, and symbols of the public square are often nasty, offensive, and indeed uncivil. As historians remind us, however, the lack of civility in the public square is not new; it was also present as far back as colonial times and the early days of the Republic (recall The Alien and Sedition Acts of 1798). Not every democratic encounter looks like a small town hall meeting in New England or has the tranquility of a (staged) campaign stop for today’s presidential candidates.

The U.S. Supreme Court has generally protected political speech and assembly (with very few exceptions) in many different forms and settings, including in recent decades the right of neo-Nazis to march down the streets of Skokie, Illinois, a community heavily populated by Jewish residents and Holocaust survivors (National Socialist Party v. Skokie, 1977) and the right of residents and even gang members to assemble (or loiter) on the streets of Chicago (Chicago v. Morales, 1999). Most recently, the Court in a 9-0 decision upheld the free expression rights of a church to picket at a funeral even though the expression was considered offensive and outrageous (Snyder v. Phelps, 2011).

Questions for Discussion

A variety of policy and legal questions generate discussion as the boundaries of the public square continue to be challenging:

  • At what point, if any, do the free speech rights of protesters trample upon both civility and the fundamental rights of other people (doctors at abortion clinics, families honoring fallen soldiers)?
  • Can some conflicts in the public square be resolved as mere matters of space and proximity?
  • What actions can governments take, within the limits of the law, to encourage civility and ensure safety for all people in the public square?
  • Should the Supreme Court identify new or broader exceptions to the First Amendment so as to bring into better balance democratic civility and the political dialogues of the public square?


Civility and Free Expression in a Constitutional Democracy is funded by the National Endowment for the Humanities under the Bridging Cultures initiative. Any views, findings, conclusions, or recommendations expressed do not necessarily represent those of the National Endowment for the Humanities, the American Bar Association, or any of its program partners.