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Freedom of Speech

Don Wyeth

Freedom of Speech

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3 mins
October 20, 2021

At the 1984 Republican National Convention in Dallas, Texas, “Gregory Lee Johnson, a youth communist, burned a[n American] flag…to protest the Reagan administration.” history.com. I recall many heated debates that year, arguing back-and-forth regarding a person’s constitutional right to free speech. To my dismay, what I discovered was that many of those involved in this repartee, had no specific, working knowledge of the law guaranteeing that right. Regardless of whether you agree with Johnson or not, US courts found in favor of his right to express himself in this way. That law is defined in our United States Constitution.

The First Amendment of the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.constitution.congress.gov. This amendment was written to restrain only the government. What that means is that the government “… may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

In the main, the First Amendment assures us the right to give voice to our ideas and information. This also provides for those people espousing unpopular ideas; free from government censorship. But, the way in which the First Amendment generalizes its wording defining these rights has posed a perennial challenge of interpretation for the US Supreme Court. Let's examine some instances where the court has upheld a citizen’s right to state their views either in direct words or symbolic actions.

Not to speak (specifically, the right not to salute the flag) in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate”) in Tinker v. Des Moines, 393 U.S. 503 (1969)

To use certain offensive words and phrases to convey political messages in Cohen v. California, 403 U.S. 15 (1971)

To contribute money (under certain circumstances) to political campaigns in Buckley v. Valeo, 424 U.S. 1 (1976)

To advertise commercial products and professional services (with some restrictions) in Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977)

To engage in symbolic speech, United States v. Eichman, 496 U.S. 310 (1990) uscourts.gov

  In contrast to these examples, the Supreme Court sometimes finds in favor of the plaintiff. Here are a few instances the right of free speech does not apply, according to the courts.

To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”) in Schenck v. United States, 249 U.S. 47 (1919).

To make or distribute obscene materials in Roth v. United States, 354 U.S. 476 (1957).

To burn draft cards as an anti-war protest. United States v. O’Brien, 391 U.S. 367 (1968).

To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).

Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick (2007)

Other general cases which are not protected under the first amendment include obscene material (child pornography), plagiarism, liable and slander, and threats of harm to a person. “Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.history.com. In all of these cases, pro and con, the Supreme Court has the responsibility for weighing individual rights against the greater good. 

We will do well to listen to Voltaire, who is credited in saying, “I disapprove of what you say, but I will defend to the death your right to say it.”


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Don Wyeth

Passionate and intelligent columnist from Madison, WI.

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