How Does the First Amendment Right of Free Speech Intersect with Democracy?

Speech is an Essential Mechanism of Democracy

Since the early years of the American experiment, the courts have taken an active role in protecting an American citizen’s right to free speech. “Speech is an essential mechanism of democracy,” wrote the Supreme Court in Citizens United v. FEC, in that “it is the means to hold officials accountable to the people…Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.” This is true even if the speech provokes a disturbance. Wrote the Supreme Court in Terminiello v. Chicago, “[t]he right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes...[i]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest…There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”

To the Supreme Court, robust speech that is protected by the First Amendment is a primary means to guard against a tyrannical government. Citing Justice Brandeis in his concurring opinion in Whitney v. California, the Supreme Court wrote in New York Times Co. v. Sullivan: “‘Those who won our independence believed...that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’"

Government’s Power to Regulate Speech

Despite the fact that the exercise of free speech is quintessentially a democratic privilege, it is not an absolute right, and the law recognizes that there are times that the government can issue limited restrictions on speech if necessary to serve a significant government interest. Whether speech should be protected under the First Amendment against such restrictions “depends upon the circumstances in which it is done...The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic...The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” However, “[a] government ...‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content’...Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Whether words will present a clear and present danger “is a question of proximity and degree,” and “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”

To determine whether a law violates the First Amendment, courts engage the “time, place, and manner” test which asks whether the law restricting speech (i) is content neutral, (ii) is narrowly tailored to serve a significant government interest, and (iii) leaves open ample alternative channels for communication of the information. If the law restricting speech is narrowly tailored and serves a compelling governmental interest, then courts may find that the restriction on speech does not violate the First Amendment. Circumstances where courts have found laws restricting an individual’s speech were constitutional include the following:

1. Restrictions against libel;
2. Restrictions against insurrection;
3. Restrictions against contempt of court;
4. Restrictions against inciting statements (especially when the record that shows the statements will be successful);
5. Restrictions against true threats;
6. Restrictions aimed at curtailing speech that is calculated to provoke a fight;
7. Restrictions aimed at curtailing speech to ensure public safety and order (especially when the record that shows prior abusive conduct);
8. Restrictions that regulate truthfulness in commercial speech;
9. Restrictions that prohibit obscenity;
10. Restrictions that protect the well-being, tranquility, and privacy of the home.

The fact that other Americans may find the speech offensive is not a sufficient reason for suppressing it, however. “Indeed, the First Amendment stands on the principle that if it is the speaker’s opinion that gives offense, then that is precisely that reason that the speech is entitled constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.” This is exemplified by the Supreme Court’s holding under Texas v. Johnson. Although many Americans may be offended by the burning of the U.S. flag, the Supreme Court reasoned in that case that the protestor’s act was one of political expression and thus, constitutional. Wrote the court, “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong…And, precisely because it is our flag that is involved, one’s response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

The First Amendment in Contemporary America

There is no doubt that contemporary Americans still value the First Amendment. A 2021 Knight-Foundation Ipsos study found that 91% of respondents considered freedom of speech protections under the First Amendment either “extremely important” (63%) or “very important” (28%). Yet as the chart below shows, some Americans do not have a clear understanding of how these protections should be applied.

This was echoed in a March 2023 Freedom Forum poll that showed that only 24% out of the 801 respondents questioned knew that First Amendment protections only applied to government restrictions on speech and not private workplace policies. Americans also hold differing opinions in what should be considered protected speech under the First Amendment. For example, the chart below shows that partisanship weighs heavily on whether someone considers an activity a legitimate expression of their First Amendment rights.

And despite the fact that many Americans still appear to value its protections, some Americans feel government attacks on the First Amendment are on the rise, given the number of government sponsored restrictions being proposed and sometimes adopted, such as those restrictions that attempt to curtail access to certain books due to their content, as well as restrictions on what can be said in classrooms and on college campuses.

The intersection between social media and the First Amendment is also a new challenge. Although hate speech or offensive speech is generally protected by the First Amendment, Americans are increasingly concerned about such speech on social media and believe that social media companies should do more to address the issue. In the March 2023 poll, out of the 801 respondents questioned, 40% said that preventing hate speech is more important that protecting hate speech and that the First Amendment should not protect hate speech. Many Americans feel correcting other social challenges, such as preventing violence or promoting an inclusive society, is just as valuable as free speech. There is also concern over the effects of social media on the mental health of America’s youth.

To date, there has been relatively little jurisprudence analyzing the First Amendment’s relationship to expressions made on social media but in a recent decision, the Supreme Court did state that social media websites are valuable ways for an individual to exercise its First Amendment rights. Writing in Packingham v. North Carolina, the Supreme Court said these websites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates father than it could from any soapbox.’” In that case, the court struck down a North Carolina statute that made it a felony for registered sex offenders to gain access to a number of websites, including Facebook and Twitter, stating that the statute as drafted was overbroad and infringed too much on these individual’s ability to legitimately exercise their First Amendment rights on these websites. In that case the statute at issue was particularly broad in its language, but the case did further show that the Supreme Court is solidly of the opinion that individuals have a basic right to express their views on social media and the other “vast democratic forums of the Internet.” The internet is a particular challenge to free speech given how speech can be manipulated on the internet and the damage such manipulated speech can render. After such manipulation, can the utterances still be called speech? And if so, is such speech “a serious substantive evil?” It will be up to the courts to further delineate the contours of the right to free speech across the internet. And this they must do precisely, so that these websites continue to serve the original purpose of the First Amendment which was to provide the American people a means to develop better informed opinions in service of maintaining a healthy democracy.

This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.