Background on Free Speech

Girl Shouting

Free speech may be one of the most coveted fundamental rights in the world. In 1948, the United Nations Universal Declaration of Rights was adopted; in Article 19, they state, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” However, the United States was one of the first countries to adopt this mindset.

The creation of the United States Constitution ensured that every citizen of America had the right to speak up. While the Constitution was being drafted during the 1780s, state legislatures and anti-Federalists were concerned that too much emphasis and power was being given to the federal government. As a result of these concerns, the Bill of Rights was written to limit the power of the national government. The First Amendment was formally adopted on December 15, 1791, which stated that all citizens were entitled to freedom of speech, expression, religion, press, association, assembly, and petition.

The boundaries of the First Amendment have been tested over time with many infamous court causes:

  • 1919 – Charles Schenck, Secretary of the Socialist Party of America, was charged with attempting to cause disobedience in the military and naval forces after mailing out 15,000 leaflets to draftees and soldiers urging them to resist the draft. The Supreme Court declared that Schneck violated the Espionage Act of 1917, and the First Amendment didn’t protect speech promoting insubordination. This case is most well-known for Justice Oliver Wendell Holmes Jr.’s use of the term “clear and present danger” as a metaphor for First Amendment speech.
  • 1922 – Socialist Ben Gitlow was arrested for distributing copies of a “left-wing” manifesto that called for the establishment of socialism through hostile actions. The Court ruled that the 14th Amendment (which prohibits states from depriving people from their rights without due process of law) extended to certain provisions of the First Amendment to individual states.
  • 1965 – Middle school students Mary Beth and John Tinker were suspended for wearing black armbands to protest the Vietnam War in school. After fighting in court for four years, the Court decided that the First Amendment applied to public schools, and officials couldn’t censor student speech “unless it disrupted the educational process”.

Freedom of speech has been heavily tested in recent years, and people are focusing their attentions on the Internet and social media. The Supreme Court encountered their first case (Reno vs. ACLU) involving cyberspace in 1997, where several organizations found two provisions in the 1996 Communications Decency Act to be unconstitutional. It was eventually ruled that the Act violated the First Amendment because “its regulations amounted to a content-based blanket restriction of free speech.

Although the World Wide Web now has the same protection as other sources of media materials like books, magazines, music and television, it’s not completely safe. On October 26, 2011, the Stop Online Piracy Act (SOPA) was introduced to the U.S. House of Representatives. The bill is designed to wipe-out websites that host copyrighted material by forcing service provides to monitor, block or delete sites judged to be linked to online piracy.


American University School of Communication

The United Nations

American Civil Liberties Union

The Oyez Project at IIT Chicago-Kent College of Law