In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision of what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. Some laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.
The First Amendment's freedom of speech right not only proscribes most government restrictions on the content of speech and ability to speak, but also protects the right to receive information, prohibits most government restrictions or burdens that discriminate between speakers, restricts the tort liability of individuals for certain speech, and prevents the government from requiring individuals and corporations to speak or finance certain types of speech with which they do not agree.
Categories of speech that are given lesser or no protection by the First Amendment include obscenity (as determined by the Miller test), fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors over their works (copyright), protection from imminent or potential violence against particular persons, restrictions on the use of untruths to harm others (slander and libel), and communications while a person is in prison. When a speech restriction is challenged in court, it is presumed invalid and the government bears the burden of convincing the court that the restriction is constitutional.
History
England During colonial times, English speech regulations were rather restrictive. The English criminal common law of seditious libel made criticizing the government a crime. Lord Chief Justice John Holt, writing in 1704–1705, explained the rationale for the prohibition: "For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the libel law was not a defense.
Until 1694, England had an elaborate system of licensing; no publication was allowed without the accompaniment of the government-granted license.
Colonies The colonies originally had very different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed.
The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words".
More recent scholarship, focusing on seditious speech in the 17th-century colonies (when there was no press), has shown that from 1607 to 1700 the colonists' freedom of speech expanded dramatically, laying a foundation for the political dissent that flowered among the Revolutionary generation.Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America, New York: NYU Press, 1994.
The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York, William Cosby. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example of jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.
First Amendment ratification In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government.
During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.
Alien and Sedition Acts
In 1798, Congress, which contained several of the ratifiers of the First Amendment at the time, adopted the Alien and Sedition Acts. The laws prohibited the publication of "false, scandalous, and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame ... or to bring them ... into contempt or disrepute; or to excite against them ... hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States".
The law did allow truth as a defense and required proof of malicious intent. The 1798 Act nevertheless made ascertainment of the intent of the framers regarding the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Acts were a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act expired and the Supreme Court never ruled on its constitutionality.
In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).
Censorship era
From the late 1800s to the mid-1900s, various laws restricted speech in ways that are today not allowed, mainly due to societal norms. Possibly inspired by foul language and the widely available pornography he encountered during the American Civil War, Anthony Comstock advocated for government suppression of speech that offended Victorian morality. He convinced the government of New York State to create the New York Society for the Suppression of Vice, in 1873, and inspired the creation of the Watch and Ward Society in Boston in 1878. City and state governments monitored newspapers, books, theater, comedy acts, and films for offensive content, and enforced laws with arrests, impoundment of materials, and fines. The Comstock laws passed by Congress (and related state laws) prohibited sending materials through the U.S. mail that included pornography; information about contraception, abortion, and sex toys; and personal letters mentioning sexual activities. Regulation of American film by state and local governments was supplemented by the Motion Picture Production Code from to 1930 to 1968, in an industry effort to preempt federal regulation. The similar industry-backed Comics Code Authority lasted from 1954 to 2011.
Some laws were motivated not by morality, but concerns over national security. The Office of Censorship suppressed communication of information of military importance during World War II, including by journalists and all correspondence going into or out of the United States. McCarthyism from the 1940s to the 1950s resulted in the suppression of advocacy of Communism, and the Hollywood blacklist. This included some prosecutions under the Smith Act of 1940.
Modern view As a result of the jurisprudence of the Warren Court in the mid-to-late 20th century, the Court has moved towards a baseline default rule under which freedom of speech is generally presumed to be protected, unless a specific exception applies. Therefore, apart from certain narrow exceptions, the government normally cannot regulate the content of speech. In 1971, in Cohen v. California, Justice John Marshall Harlan II, citing Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of "a marketplace of ideas", while Associate Justice Thurgood Marshall cogently explained in 1972 that:
Types of speech
Core political speech Core political speech is the discussion of political matters, including commentary on governmental laws and policies, discussion of public issues which may be subject to governmental action, commentary on political parties, individual politicians, political candidates and so on. This includes the right to publicly criticize the government and its leaders, potentially in very harsh or offensive terms. Core political speech is the most highly guarded form of speech because of its importance to a functional republic. In Buckley v. Valeo, for instance, the Supreme Court wrote:
Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down. The Supreme Court has ruled that suffrage itself is not political "speech" and thus can be subjected to significant regulations, and the right to run for office may likewise be restricted. Calling for such restrictions to be altered or abolished, however, is protected under the First Amendment, and certain kinds of suffrage restrictions are already prohibited by other parts of the constitution. In First National Bank of Boston v. Bellotti (1978), the Supreme Court protected corporate expenditure of money as a form of speech.
Commercial speech
Not wholly outside the protection of the First Amendment is commercial speech, which is speech that "propose[s] a commercial transaction", as defined by Ohralik v. Ohio State Bar Assn. in 1978.Ohralik v. Ohio State Bar Assn., . Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. In 1980, Central Hudson Gas & Electric Corp. v. Public Service Commission held that restrictions of commercial speech are subject to a four-element intermediate scrutiny.Central Hudson Gas & Electric Corp. v. Public Service Commission, . Sorrell v. IMS Health Inc. (2011) casts doubt upon whether commercial speech still exists as a distinct type of speech subject to less protection than other categories of speech.
Expressive conduct