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 dichotomysociety generally favoring free speech, but individuals objecting to the protection of particular messagesand 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 ideasthat 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. Theconcern is that constant attacks on the veracity of the press may hurt credibilityand cause hostility toward reporters trying to do their jobs. Theconcern 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-establishedlaw that the First Amendments free speech guarantee only applies to government action. It is the government whether federal, state, or localthat 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 publicthan 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 officials 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 Trumps 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 Amendmentlaw 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 Americas 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 removedeven after more than two centuriesfrom 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.
See original here:
The Ongoing Challenge to Define Free Speech - American Bar Association
- Bill Ackman says he's 'learned a lot' from Elon Musk's X - Quartz - April 22nd, 2024 [April 22nd, 2024]
- Opinion | Columbia, Free Speech and the Coddling of the American Right - The New York Times - April 22nd, 2024 [April 22nd, 2024]
- TikTok raises free speech concerns on bill passed by US House that may ban app - Voice of America - VOA News - April 22nd, 2024 [April 22nd, 2024]
- The Right Must Avoid the Left's Free Speech Pitfalls Minding The Campus - Minding The Campus - April 22nd, 2024 [April 22nd, 2024]
- Fear and loathing on America's college campuses as free speech is disappearing | Will Bunch - The Philadelphia Inquirer - April 22nd, 2024 [April 22nd, 2024]
- Harrison Ford Called 'Free Palestine' Supporters 'Force of Nature' in Speech? - Snopes.com - April 22nd, 2024 [April 22nd, 2024]
- Elon Musk to fund new First Amendment campaign to combat 'relentless attacks on free speech' - Fox News - April 22nd, 2024 [April 22nd, 2024]
- TikTok raises free speech concerns on bill passed by US House that may ban app - New York Post - April 22nd, 2024 [April 22nd, 2024]
- Navigating The Murky Waters Of Antisemitism, Free Speech, And Academic Freedom - Forbes - April 22nd, 2024 [April 22nd, 2024]
- The choice between safety and free speech is a false one - Daily Trojan Online - April 22nd, 2024 [April 22nd, 2024]
- AI chatbots refuse to produce 'controversial' output why that's a free speech problem - The Conversation - April 22nd, 2024 [April 22nd, 2024]
- UC Virtual Conference Centers Free Speech and Civil Rights Amid Ongoing Tensions on College Campuses - Diverse: Issues in Higher Education - April 22nd, 2024 [April 22nd, 2024]
- Free speech freeze-up | D.H. Robinson - The Critic - April 22nd, 2024 [April 22nd, 2024]
- Will Columbias law-school dean learn the law of free speech? - JNS.org - April 22nd, 2024 [April 22nd, 2024]
- OSU, OK State Regents for Higher Education complete first required free speech training - Daily O'Collegian - April 22nd, 2024 [April 22nd, 2024]
- TikTok uses free speech card to save itself from US ban, will it be enough? - Hindustan Times - April 22nd, 2024 [April 22nd, 2024]
- Settlement Reached in Free Speech Case at Temecula Valley Unified - ACLU of Southern California - April 22nd, 2024 [April 22nd, 2024]
- USC canceled its valedictorian speech: What the university got wrong. - Slate - April 22nd, 2024 [April 22nd, 2024]
- A free speech fiasco united the far-right here's why they remain divided - POLITICO Europe - April 22nd, 2024 [April 22nd, 2024]
- US TikTok Ban Bill Would 'Trample' On Free Speech Rights Of 170M Americans, Says Social Media Giant - Benzinga - April 22nd, 2024 [April 22nd, 2024]
- X marks the spot where free speech comes at a cost - Sydney Morning Herald - April 22nd, 2024 [April 22nd, 2024]
- Newly reinstated Texas Tech professor continues to advocate for free speech - KLBK | KAMC | EverythingLubbock.com - April 22nd, 2024 [April 22nd, 2024]
- Coin Center says Senate-presented stablecoin bill poses risks to innovation and free speech - crypto.news - April 22nd, 2024 [April 22nd, 2024]
- TikTok creators worry about free speech and income streams if ban succeeds: 'My livelihood is at stake' - CNBC - March 29th, 2024 [March 29th, 2024]
- As Texas students clash over Israel-Hamas war, Gov. Greg Abbott orders colleges to revise free speech policies - The Texas Tribune - March 29th, 2024 [March 29th, 2024]
- Opinion | The Debate Over Free Speech, Disinformation and Censorship - The New York Times - March 29th, 2024 [March 29th, 2024]
- VCU one of the top campuses in the country for free speech, advocacy group says - Axios - March 29th, 2024 [March 29th, 2024]
- Free Speech Is Under Attack in the U.S., but It's on the Ropes Elsewhere - Reason - March 29th, 2024 [March 29th, 2024]
- Free speech hangs in the balance in 3 Supreme Court cases - The Hill - March 29th, 2024 [March 29th, 2024]
- Free Speech Unmuted: Free Speech, Government Persuasion, and Government Coercion - Reason - March 29th, 2024 [March 29th, 2024]
- In crowded week for free speech, justices hear 3 First Amendment cases - Reporters Committee for Freedom of the Press - March 29th, 2024 [March 29th, 2024]
- Abbott Issues Guidance To Texas Colleges And Universities About Free Speech And Anti-Semitism - EastTexasRadio.com - March 29th, 2024 [March 29th, 2024]
- Gov. Abbott orders Texas universities to revise free speech policies to combat antisemitism - The UTD Mercury - March 29th, 2024 [March 29th, 2024]
- The Liberty Justice Center Urges the U.S. Supreme Court to Uphold Protections for Free Speech in Donor Disclosure ... - Liberty Justice Center - March 29th, 2024 [March 29th, 2024]
- GOP pushes anti-free speech bills to fight antisemitism - UnHerd - March 29th, 2024 [March 29th, 2024]
- PEN Union Cries Foul in Contract Talks as Criticism of PEN America Intensifies - Publishers Weekly - March 29th, 2024 [March 29th, 2024]
- CAIR-Texas Condemns Gov. Abbott's Anti-Palestinian Executive Order as Attack on Free Speech (Video) - - Council on American-Islamic Relations - March 29th, 2024 [March 29th, 2024]
- Dissent: When It Comes To Free Speech, the Editorial Board Is All Talk. | Opinion - Harvard Crimson - March 29th, 2024 [March 29th, 2024]
- Gov. Abbott calls for universities to update free speech policies, discipline violators to address antisemitism on campuses - The Daily Texan - March 29th, 2024 [March 29th, 2024]
- The Times Ed Board picks a confusing fight against the Emerald City Ride, free speech - Seattle Bike Blog - March 29th, 2024 [March 29th, 2024]
- Trump's Free Speech Defense on Trial in Georgia Election Interference Case - Hoodline - March 29th, 2024 [March 29th, 2024]
- Convicting Julian Assange Would Mean the End of Free Speech - The American Conservative - March 29th, 2024 [March 29th, 2024]
- Column: Banning TikTok is a blow to free speech - Redmond Spokesman - March 29th, 2024 [March 29th, 2024]
- Free Speech Is Under Such Threat In Canada It Would Make Orwell Blush - Forbes - March 29th, 2024 [March 29th, 2024]
- More on Coercion, Social Media, and Freedom of Speech: Rejoinder to Philip Hamburger - Reason - March 29th, 2024 [March 29th, 2024]
- OfS free speech guidance: time will tell if it builds understanding - The PIE News - March 29th, 2024 [March 29th, 2024]
- Kevin Rennie: Jaw-dropping attack on free speech and assembly in a CT town. It hurts us all. - Hartford Courant - March 2nd, 2024 [March 2nd, 2024]
- Chemerinsky: Navigating Free Speech on Campus, A First Amendment Perspective - The Collegian online - March 2nd, 2024 [March 2nd, 2024]
- Bentley Hosts Forum on Free Speech on College Campuses with Legal Expert Harvey Silverglate - Bentley University - March 2nd, 2024 [March 2nd, 2024]
- POLL: 69% of Americans believe country on wrong track on free speech - Foundation for Individual Rights in Education - March 2nd, 2024 [March 2nd, 2024]
- In Defense of Free Speech and the Mission of the University - Public Discourse - March 2nd, 2024 [March 2nd, 2024]
- Free Speech and Common Carriage: Unpacking the Supreme Court's Examination of the Texas and Florida Social ... - Public Knowledge - March 2nd, 2024 [March 2nd, 2024]
- So to Speak: The Free Speech Podcast | Free speech news: NetChoice, Taylor Swift, October 7, and Satan - Foundation for Individual Rights in Education - March 2nd, 2024 [March 2nd, 2024]
- Supreme Court to Decide How the First Amendment Applies to Social Media - The New York Times - March 2nd, 2024 [March 2nd, 2024]
- U.S. Supreme Court to weigh in on Texas social media law - The Texas Tribune - March 2nd, 2024 [March 2nd, 2024]
- Bill aimed at protecting free speech rights advancing in SC House - News From The States - March 2nd, 2024 [March 2nd, 2024]
- Champion of Free Speech and Journalism Margaret Talev Leads Institute for Democracy, Journalism and Citizenship ... - Syracuse University News - March 2nd, 2024 [March 2nd, 2024]
- Kinsey student says IU administrator infringed on free speech rights at demonstration - Indiana Daily Student - March 2nd, 2024 [March 2nd, 2024]
- CBS News boss who signed off on firing Catherine Herridge to get free speech award - New York Post - March 2nd, 2024 [March 2nd, 2024]
- U.S. Supreme Court to hear Texas and Florida cases about free speech and social media platforms - Texas Standard - March 2nd, 2024 [March 2nd, 2024]
- Should Honking Your Horn Be Considered Free Speech? - The Autopian - March 2nd, 2024 [March 2nd, 2024]
- Event: Free speech implications of the ICJ South Africa v. Israel case - ARTICLE 19 - Article 19 - March 2nd, 2024 [March 2nd, 2024]
- Takeaways From the Supreme Court Arguments on Social Media Laws - The New York Times - March 2nd, 2024 [March 2nd, 2024]
- Free Speech Unmuted: Book Bansor Are They? - Reason - March 2nd, 2024 [March 2nd, 2024]
- Florida anti-free speech bill targets 'liberal media' but guess who's really mad at it? - KeysNews.com - March 2nd, 2024 [March 2nd, 2024]
- Supreme Court arguments over social media laws and free speech are defining social media itself - Quartz - March 2nd, 2024 [March 2nd, 2024]
- Canadian measure would remove free speech protection for quoting Bible, sacred texts - Washington Times - March 2nd, 2024 [March 2nd, 2024]
- Suffield scraps plan to restrict the use of the town green following pushback from free speech advocates - FOX61 Hartford - March 2nd, 2024 [March 2nd, 2024]
- FIRST PERSON: Free speech fails for Zionists at UC Berkeley - The Jewish News of Northern California - March 2nd, 2024 [March 2nd, 2024]
- Menard Center and pre-law club host discussion regarding AI and Free Speech - UWEC Spectator - March 2nd, 2024 [March 2nd, 2024]
- Supreme Court arguments over future of social media and free speech - WFXRtv.com - March 2nd, 2024 [March 2nd, 2024]
- Judge skeptical of lawsuit brought by Elon Musk's X over hate speech research - NPR - March 2nd, 2024 [March 2nd, 2024]
- Israeli philosopher Yoram Hazony lectures on free speech, antisemitism while students hold vigil - Observer Online - March 2nd, 2024 [March 2nd, 2024]
- Big Tech fights Texas and Florida at SCOTUS, and Brett Kavanaugh might be the one saving the internet as we know it. - Slate - March 2nd, 2024 [March 2nd, 2024]
- Biden Is Trying to Balance Gaza Protests and Free Speech Rights as Demonstrators Disrupt His Events - U.S. News & World Report - January 29th, 2024 [January 29th, 2024]
- British Universities Are Repressing Free Speech on Palestine - Jacobin magazine - January 29th, 2024 [January 29th, 2024]
- The Future of Academic Freedom - The New Yorker - January 29th, 2024 [January 29th, 2024]
- "College Is All About Curiosity. And That Requires Free Speech." - Reason - January 29th, 2024 [January 29th, 2024]
- Palestine and the crisis of free speech on college campuses - The Real News Network - January 29th, 2024 [January 29th, 2024]
- College Is All About Curiosity. And That Requires Free Speech. - The New York Times - January 29th, 2024 [January 29th, 2024]