Liberty is not divisible; a society's members do not have it if they have only some of it in some spheres. That is why incremental reductions of aspects of civil liberty regimes are a danger; there quickly comes a point when the claim begins to ring hollow that members of a society have secure margins of freedom in their lives. The too-true cliché says that the price of liberty is eternal vigilance, which is why it is mandatory to resist, and resist vigorously, the early stages of assaults on liberty, not least those made by well-meaning politicians who earnestly, eagerly, sincerely desire to protect us from bad people and from ourselves, for these are the most insidious.
Yet though liberty is indivisible, regimes of liberties have a structure. The keystone of the arch is free speech. Without free speech one cannot claim other liberties, or defend them when they are attacked. Without free speech one cannot have a democratic process which requires the statement and testing of policy proposals and party platforms. Without free speech one cannot have a due process at law in which one can defend oneself, accuse, collect and examine evidence, make a case or refute one. Without free speech there cannot be genuine education and research, enquiry, debate, exchange of information, challenges to falsehood, questioning of governments, proposal and examination of opinion. Without free speech there cannot be a free press, which although it always abuses its freedoms in the hunt for profit, is necessary with all its warts, as one of the two essential estates of a free society (the other being an independent judiciary). Without free speech there cannot be a flourishing literature and theatre. Without free speech there are limits to innovation and experiment in any walk of life. In short and in sum, without free speech there is no freedom worth the name in other respects where freedom matters.
All this said, it is also true that there have to be limits to free speech at times. But it is absolutely vital that this be understood scrupulously and carefully, given what has just been said. The standard example of a case where limits to free speech are justified is crying "fire!" in a crowded cinema. What is wrong with doing this, obviously, is gratuitously causing harm (to say "gratuitously" or "irresponsibly" in fact adds nothing because there is no such thing as responsibly causing harm, as such; if harm is caused in achieving a greater good, as when one shouts "fire!" in a crowded cinema when there really is a fire, it is the undesired by-product of intending to achieve good). Allowed too wide a reading, the "fire!" example can justify all manner of unjustifiable restrictions on free speech, as have occurred in our country in recent years ("glorification of terrorism", "incitement to religious hatred"). Restrictions on free speech have to be extremely narrow, extremely specific, case by case, one-off, and only very rarely, on the best justification, prior to the speech itself.
Of course, the principle of freedom of speech promiscuously allows bad free speech, ranging from the stupid to the malicious and dangerous. If it is genuinely dangerous to life, as for example in direct incitement to murder, it invites a case-specific limitation. But generally the remedy for bad free speech is better free speech in response. In the case of libel and slander there is, as an instance of this, the post facto remedy of the courts. True, malicious mud-slinging is damaging even if a libel action is won, but free speech does not come free, and in a mature society we have to recognise that benefits carry costs, and this is one of them.
So vital is free speech to the health and liberty of a society that the plea of "feeling offended" by what people say about one's choices and beliefs is not and can never be a reason for limiting free speech. Taking offence, followed by infantile demonstrations and infinitely more offensive threats of mayhem and death, has become a stock-in-trade of Muslim activists. This is unacceptable anywhere, but in western liberal democracies especially so, for it strikes at the heart of what makes them both liberal and democracies.
Censorship by coercion and special pleading is as big a threat to liberty in the west today as the actions by our own governments in diminishing our freedoms in the supposed interests of security. All who choose to come to live in a western liberal democracy should be told that discrimination or insult directed at their age, ethnicity, disability if they have one, and sexuality - the things they cannot choose but to have or be - will not be tolerated; but their opinions and beliefs, the matters over which they have choice, are open season for cartoonists, satirists, and all those who disagree: and they must like it or lump it, or if they are too immature or insecure, or both, to do neither, they are free to leave.
All the above is directed mainly at the restrictions imposed on freedom of speech by our own government in the last few years, in security measures and anti-terrorism laws. That stupid and disgusting girl misnamed the "lyrical terrorist" is an unfortunate example of the wrong-headedness of restrictions on speech; how it sticks in the craw to defend someone who glorifies murderers in a "poem", and yet consistency and principle demands it.
How far we have come from a time, worse in many ways than our own, when one of our judges could resoundingly say, as the 18th-century Lord Mansfield did, "so long as an act remains in bare intention alone it is not punishable by our law". That has changed, for example with conspiracy and allied laws (some introduced in another period of panic, the late 18th and early 19th century scare caused by the French revolution), and now with the proscription of "glorification" of such inglorious things as terrorism; and our government has even sought to criminalise criticism of religion. The assault on free speech is well under way: it is the time for defence of it to get well under way too.
For more blogs in the Liberty and the state series, click here.
FREEDOM OF SPEECH AND FREEDOM OF PRESS
The First Amendment to the U.S. Constitution, says that "Congress shall make no law....abridging (limiting) the freedom of speech, or of the press..." Freedom of speech is the liberty to speak openly without fear of government restraint. It is closely linked to freedom of the press because this freedom includes both the right to speak and the right to be heard. In the United States, both the freedom of speech and freedom of press are commonly called freedom of expression.
Freedom of Speech
Why is freedom of speech so solidly entrenched in our constitutional law, and why is it so widely embraced by the general public? Over the years many philosophers, historians, legal scholars and judges have offered theoretical justifications for strong protection of freedom of speech, and in these justifications we may also find explanatory clues.
The First Amendment's protection of speech and expression is central to the concept of American political system. There is a direct link between freedom of speech and vibrant democracy. Free speech is an indispensable tool of self-governance in a democratic society. Itenables people to obtain information from a diversity of sources, make decisions, and communicate those decisions to the government. Beyond the political purpose of free speech, the First Amendment provides American people with a "marketplace of ideas." Rather than having the government establish and dictate the truth, freedom of speech enables the truth to emerge from diverse opinions. Concurring in Whitney v. California (1927), Justice Louis Brandeis wrote that "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth."
On a communal level, free speech facilitates majority rule. It is through talking that we encourage consensus, that we form a collective will. Whether the answers we reach are wise or foolish, free speech helps us ensure that the answers usually conform to what most people think. Americans who are optimists (and optimism is a quintessentially American characteristic) additionally believe that, over the long run, free speech actually improves our political decision-making. Just as Americans generally believe in free markets in economic matters, they generally believe in free markets when it comes to ideas, and this includes politics. In the long run the best test of intelligent political policy is its power to gain acceptance at the ballot box.
On an individual level, speech is a means of participation, the vehicle through which individuals debate the issues of the day, cast their votes, and actively join in the processes of decision-making that shape the polity. Free speech serves the individual’s right to join the political fray, to stand up and be counted, to be an active player in the democracy, not a passive spectator.
Freedom of speech is also an essential contributor to the American belief in government confined by a system of checks and balances, operating as a restraint on tyranny, corruption and ineptitude. For much of the world’s history, governments, following the impulse described by Justice Holmes, have presumed to play the role of benevolent but firm censor, on the theory that the wise governance of men proceeds from the wise governance of their opinions. But the United States was founded on the more cantankerous revolutionary principles of John Locke, who taught that under the social compact sovereignty always rests with the people, who never surrender their natural right to protest, or even revolt, when the state exceeds the limits of legitimate authority. Speech is thus a means of "people-power," through which the people may ferret out corruption and discourage tyrannical excesses.
Counter-intuitively, influential American voices have also often argued that robust protection of freedom of speech, including speech advocating crime and revolution, actually works to make the country more stable, increasing rather than decreasing our ability to maintain law and order. Again the words of Justice Brandeis in Whitney v. California are especially resonant, with his admonition that the framers of the Constitution "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." If a society as wide-open and pluralistic as America is not to explode from festering tensions and conflicts, there must be valves through which citizens with discontent may blow off steam. In America we have come to accept the wisdom that openness fosters resiliency, that peaceful protest displaces more violence than it triggers, and that free debate dissipates more hate than it stirs.
The link between speech and democracy certainly provides some explanation for the American veneration of free speech, but not an entirely satisfying or complete one. For there are many flourishing democracies in the world, but few of them have adopted either the constitutional law or the cultural traditions that support free speech as expansively as America does. Moreover, much of the vast protection we provide to expression in America seems to bear no obvious connection to politics or the democratic process at all. Additional explanation is required.
Probably the most celebrated attempt at explanation is the "marketplace of ideas" metaphor, a notion that is most famously associated with Holmes' great dissent in Abrams, in which he argued that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." The marketplace of ideas metaphor does not posit that truth will emerge from the free trade in ideas, at least not instantly. That would be asking too much. It merely posits that free trade in ideas is the best test of truth, in much the same way that those who believe in laissez-faire economic theory argue that over the long haul free economic markets are superior to command-and-control economies. The American love of the marketplace of ideas metaphor stems in no small part from our irrepressible national optimism, the American "constitutional faith" that, given long enough, good will conquer evil. As long as this optimism is not blind naiveté, but is rather a motive force that encourages us to keep the faith in the long view of history, it can be a self-fulfilling prophecy. Just as we often have nothing to fear but fear, hope is often our best hope. Humanity may be fallible, and truth illusive, but the hope of humanity lies in its faith in progress. The marketplace metaphor reminds us to take the long view. Americans like to believe, and largely do believe, that truth has a stubborn and incorrigible persistence. Cut down again and again, truth will still not be extinguished. Truth will out, it will be rediscovered and rejuvenated. It will prevail.
The connection of freedom of speech to self-governance and the appeal of the marketplace of ideas metaphor still, however, do not tell it all. Freedom of speech is linked not merely to such grandiose ends as the service of the democracy or the search for truth. Freedom of speech has value on a more personal and individual level. Freedom of speech is part of the human personality itself, a value intimately intertwined with human autonomy and dignity. In the words of Justice Thurgood Marshall in the 1974 case Procunier v. Martinez, "The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression."
Many Americans embrace freedom of speech for the same reasons they embrace other aspects of individualism. Freedom of speech is the right to defiantly, robustly and irreverently speak one’s mind just because it is one’s mind. Freedom of speech is thus bonded in special and unique ways to the human capacity to think, imagine and create. Conscience and consciousness are the sacred precincts of mind and soul. Freedom of speech is intimately linked to freedom of thought, to that central capacity to reason and wonder, hope and believe, that largely defines our humanity.
If these various elements of our culture do in combination provide some insight into why freedom of speech exerts such a dominating presence on the American legal and cultural landscape, they do not by any means come close to explaining the intense and seemingly never-ending legal and cultural debates over the limits on freedom of speech.
While the language of the First Amendment appears absolute, freedom of speech is not an absolute right. Certain limitations and restrictions apply. Conflicts involving freedom of expression are among the most difficult ones that courts are asked to resolve. This ongoing process is often contentious and no one simple legal formula or philosophical principle has yet been discovered that is up to the trick of making the job easy. Americans thus continue to debate in political forums and litigate in courts such issues as the power of society to censor offensive speech to protect children, the permissibility of banning speech that defeats protection of intellectual property, the propriety of curbing speech to shelter personal reputation and privacy, the right to restrict political contributions and expenditures to reduce the influence of money on the political process, and countless other free-speech conflicts.Free speech cases frequently involve a clash of fundamental values. For example, how should the law respond to a speaker who makes unpopular statement to which the listeners react violently? Should police arrest the speaker or try to control the crowd? Courts must balance the need for peace and order against the fundamental right to express ones point of view.
According to the current state of law, freedom of speech does not protect the following: Speech that contains "fighting words" (insulting or abusive language that is likely to cause "an immediate violent response"); Obscenities; Language or communication directed to inciting, producing or urging the commission of a crime; Defamation - words or communication that are false and untrue and are intended to injure the character and reputation of another person; Abusive, obscene or harassing telephone calls; Loud speech and loud noise meant by volume to disturb others or to create a clear and present danger of violence.
Yet while the country continues to struggle mightily to define the limits and continues to debate vigorously the details, there is surprisingly little struggle and debate over the core of the faith. Americans truly do embrace the central belief that freedom of speech is of utmost value, linked to our defining characteristics as human beings. While limits must exist, American culture and law approach such limits with abiding caution and skepticism, embracing freedom of speech as a value of transcendent constitutional importance.
Freedom of Press
Freedom of the press protects the right to obtain and publish information or opinions without government censorship or fear of punishment. Censorship occurs when the government examines publications and productions and prohibits the use of material it finds offensive. Freedom of press applies to all types of printed and broadcast material, including books, newspapers, magazines, pamphlets, films and radio and television programs.
The Constitution's framers provided the press with broad freedom. This freedom was considered necessary to the establishment of a strong, independent press sometimes called "the fourth branch" of the government. An independent press can provide citizens with a variety of information and opinions on matters of public importance. However, freedom of press sometimes collides with other rights, such as a defendant's right to a fair trial or a citizen's right to privacy. In recent years, there has been increasing concern about extremely aggressive journalism, including stories about people's sexual lives and photographs of people when they were in a private setting.
In the United States, the government may not prevent the publication of a newspaper, even when there is reason to believe that it is about to reveal information that will endanger our national security. By the same token, the government cannot:
- Pass a law that requires newspapers to publish information against their will.
- Impose criminal penalties, or civil damages, on the publication of truthful information about a matter of public concern or even on the dissemination of false and damaging information about a public person except in rare instances.
- Impose taxes on the press that it does not levy on other businesses.
- Compel journalists to reveal, in most circumstances, the identities of their sources.
- Prohibit the press from attending judicial proceedings and thereafter informing the public about them.
Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and now Web sites and Internet postings.
The framers' conception of freedom of the press has been the subject of intense historical debate, both among scholars and in the pages of judicial opinions. At the very least, those who drafted and ratified the Bill of Rights purported to embrace the notion, derived from William Blackstone, that a free press may not be licensed by the sovereign, or otherwise restrained in advance of publication (see New York Times Co. v. United States, 1971.) And, although the subject remains a lively topic of academic debate, the Supreme Court itself reviewed the historical record in 1964 in New York Times Co. v. Sullivan and concluded that the “central meaning of the First Amendment” embraces as well a rejection of the law of seditious libel — i.e., the power of the sovereign to impose subsequent punishments, from imprisonment to criminal fines to civil damages, on those who criticize the state and its officials.
To a great extent, however, what we mean by freedom of the press today was shaped in an extraordinary era of Supreme Court decision-making that began with Sullivan and concluded in 1991 with Cohen v. Cowles Media Co. During that remarkable period, the Court ruled in at least 40 cases involving the press and fleshed out the skeleton of freedoms addressed only rarely in prior cases. In contrast, although the Court in the early part of the last century had considered the First Amendment claims of political dissidents with some frequency, it took nearly 150 years after the adoption of the Bill of Rights, and the First Amendment along with it, for the Court to issue its first decision based squarely on the freedom of the press.
That 1931 case, Near v. Minnesota, ratified the Blackstonian proposition that a prior restraint — a legal prohibition on the press’s ability to publish information in its possession — will almost always violate the First Amendment. Near is a landmark, not just because it was the Court’s first decision to invoke the press clause, but because it established a fundamental precept of constitutional law — that once the press has gotten its hands on information that it deems to be newsworthy, the government can seldom, if ever, prevent that information from being published.
Over the course of the quarter-century following Sullivan, the Court made it its business to explore the ramifications of the case on a virtually annual basis. During that period, the Supreme Court’s elaboration of what we mean by a free press focused on the nature of the official restraint alleged to compromise that freedom as well as the extent to which the First Amendment protects the press from a given species of governmental action or inaction. Thus, in cases such as Near and the “Pentagon Papers” case (1971's New York Times Co. v. United States, the Court established that freedom of the press from previous restraints on publication is nearly absolute, encompassing the right to publish information that a president concluded would harm the national security, if not the movements of troopships at sea in time of war. In 1974's Miami Herald Publishing Co. v. Tornillo, the Court embraced the analogous proposition that the government has virtually no power to compel the press to publish that which it would prefer to leave on the proverbial “cutting room floor.”
In that regard, however, it must be noted that not all media are “created equal” when it comes to entitlement to the full protections of the First Amendment’s press clause. Most significantly, because of a perceived “scarcity” of the electromagnetic spectrum, the Court has held that Congress and the Federal Communications Commission may regulate the activities of broadcasters operating over “public” airwaves in a manner that would surely violate the First Amendment if applied to newspapers. (Compare Red Lion Broadcasting v. FCC (1969) with Tornillo.) The Court’s reasoning in Red Lion, in which it upheld the Commission’s “Fairness Doctrine” and “personal attack” rule — i.e., the right of a person criticized on a broadcast station to respond to such criticism over the same airwaves licensed to that station — has never been disavowed, although the justices have expressly declined to extend it to other, later-developed communications media, including cable television (1994's Turner Broadcasting v. FCC) and the Internet (1997's Reno v. ACLU), to which the “scarcity” rationale for regulation is plainly inapplicable.
Even in the broadcast context, however, Sullivan and the cases that followed it stand for the proposition that the First Amendment protects the publication of truthful information about matters of public concern, not just from prior restraint, but also from subsequent punishment, at least in the absence of a demonstrated need to vindicate a competing government interest of the “highest order.” This formulation has come to be known as “the Daily Mail principle,” after the Supreme Court’s 1979 decision in Smith v. Daily Mail Publishing Co., in which the Court held that a newspaper could not be liable for publishing the name of a juvenile offender in violation of a West Virginia law declaring such information to be private. The protections against subsequent punishments for reporting the truth afforded by the Daily Mail principle are not absolute, but the barriers to such government regulation of the press are set extremely high.
Sullivan and cases that followed also hold that the First Amendment protects the publication of false information about matters of public concern in a variety of contexts, although with considerably less vigor than it does dissemination of the truth. Even so, public officials and public figures may not recover civil damages for injury to their reputations unless they were the victims of a reckless disregard for truth in the dissemination of a “calculated falsehood.” Indeed, private persons may not collect civil damages for reputational harm caused by falsehoods relating to a matter of public concern unless the publisher’s conduct violates a fault-based standard of care. And although expressions of “opinion” are not always immune from legal sanction, in its 1990 decision in Milkovich v. Lorain Journal Co., the Court held that statements not capable of being proven false, or which reasonable people would not construe as statements of fact at all, but rather as mere “rhetorical hyperbole,” are absolutely protected by the First Amendment.
By the same token, the Supreme Court has been considerably less definitive in articulating the degree of First Amendment protection to be afforded against restraints on the freedom of the press that are indirect and more subtle than the issuance of a prior restraint or the imposition of criminal or civil sanctions subsequent to publication. Thus, for example, in its 1978 decision Zurcher v. Stanford Daily, the Court held that the First Amendment does not protect the press and its newsrooms from the issuance of otherwise valid search warrants. Similarly, in 1979 in Herbert v. Lando, the Court concluded that the press clause does not encompass a privilege that would empower a journalist to decline to testify about the “editorial process” in civil discovery. Most significantly, in 1972 in Branzburg v. Hayes, a sharply divided Court was skeptical of the contention that the First Amendment protects journalists from the compelled disclosure of the identities of their confidential sources, at least in the context of a grand-jury proceeding. The Court, however, has not addressed that issue in the 30 years since Branzburg, and has effectively permitted the lower courts to fashion an impressive body of law grounding just such a “reporter’s privilege” firmly in the press clause itself. That privilege, however, is by no means absolute and may be forfeited in a variety of circumstances, especially when no confidential source is thereby placed in jeopardy or when disclosure is sought in the context of a grand-jury or other criminal proceeding.
And, finally, the Court has held that the First Amendment affords the press and public affirmative rights of access to at least some government proceedings. In a series of decisions beginning with 1980's Richmond Newspapers, Inc. v. Virginia, the Court established that the First Amendment not only protects the press from prior restraints and other government-imposed penalties, but also invests the press and public with a right to attend criminal trials and other judicial proceedings. This right, however, is not absolute and is routinely balanced against other competing interests articulated by the proponents of secret proceedings. Nevertheless, in such cases, and others like 1975's Cox Broadcasting Corp. v. Cohn, the Court has expressly recognized the structural role that the press plays as a “surrogate” for the larger public in gathering and disseminating information on its behalf and for its benefit. Significantly, however, the Court has taken great pains not to anoint the press with First Amendment-based rights and immunities beyond those enjoyed by any speaker, “lonely pamphleteer” (see Branzburg v. Hayes, 1972), or Internet chat-room participant.
Indeed, the Court has rejected arguments advanced by the institutional press that, because of its structural role in ensuring the free flow of information in a democratic society, it ought to enjoy unique protections from otherwise generally applicable laws that inhibit its ability to gather and report the news. Thus, in 1991 in Cohen v. Cowles Media Co., the Court effectively concluded the treatise on the freedom of the press it began in Sullivan; it did so when it emphasized that the press is properly subject to liability under the “generally applicable” law of contracts when it breaks a promise to keep a source’s identity confidential, even when it does so in order to report truthful information about the source’s involvement in a matter of public concern.
In the decade following Cohen, the Court again fell largely silent when it came to the First Amendment’s application to the institutional press. As the 21st century dawned, however, the Court interrupted that silence, at least briefly, to revisit the extent to which a “generally applicable” law such as the federal wiretap statute can constitutionally impose criminal penalties and civil liability on the dissemination by the press of the contents of unlawfully recorded telephone conversations, at least when the information so disseminated is the truth about a matter of public concern.
In 2001 in Bartnicki v. Vopper, the Court held that, even when a statute is directed at deterring unlawful conduct (e.g., the interception of telephone conversations) and not at penalizing the content of press reports, it nevertheless constitutes a “naked prohibition” on the dissemination of information by the press that is “fairly characterized as a regulation of pure speech” in violation of the First Amendment. In so holding, the Court ushered in a new century of First Amendment jurisprudence by reaffirming both the Daily Mail principle — the fundamental right of a free press to disseminate truthful information about public matters — and the “central meaning of the First Amendment” on which it is based — Sullivan’s recognition that the “‘freedom of expression upon public questions is secured by the First Amendment’” so that “‘debate on public issues should be uninhibited, robust and wide-open.’”
While it is undeniable fact that freedom of press is essential ingredient of democracy, it does not mean it will advance the goals of democracy.
Namely, once in this country that now seems far away, radio and television broadcasters had an obligation to operate in the public interest. That generally accepted principle was reflected in a rule known as the Fairness Doctrine. The rule, formally adopted by the Federal Communications Commission in 1949, required all broadcasters to devote a reasonable amount of time to the discussion of controversial matters of public interest. It further required broadcasters to air contrasting points of view regarding those matters. The Fairness Doctrine arose from the idea imbedded in the First Amendment that the wide dissemination of information from diverse and even antagonistic sources is essential to the public welfare and to a healthy democracy.
In August 1987 the FCC repealed the Doctrine, claiming that it was unconstitutional, although the Supreme Court had ruled unanimously in 1969 that the Fairness Doctrine was not only constitutional but essential to democracy. As a result, general public is very rarely served with fair and balanced information. The public airwaves serve today no other purpose but to express the opinions of those who can pay for air time. Some authors argue that mainstream media journalism today is a shameful joke because of president Reagan's decision to abolish Fairness Doctrine. Once upon a time, the Fairness Doctrine ensured that the information we receive - information vital to the ability of the people to govern in the manner intended - came from a wide variety of sources and perspectives. Reagan's policies annihilated the Fairness Doctrine, opening the door for a few mega-corporations to gather journalism unto themselves. Today, Reagan's old bosses at General Electric own three of the most-watched news channels. This company profits from every war Americans fight, but somehow is trusted to tell the truths of war. Thus, the myths and lies are sold to us.
Learn more about freedom of speech and freedom of press by visiting the following Web sites:
American Communication Association Free Speech Page
First Amendment Cyber Tribune
Freedom of Speech and Freedom of the Press
Freedom of Speech on Public College Campuses
Internet and the First Amendment
Historic Supreme Court Decisions - Freedom of Speech
Historic Supreme Court Decisions - Freedom of Press
Return to the Table of Contents