Free Speech and
the Free Press

“Free speech is the whole thing, the whole
ball game. Free speech is life itself.”

— Salman Rushdie

You have the right to remain silent. In the United States, you also have the right to speak up, most of the time. It was not always this way. In 17th-century Massachusetts, for example, one could be put to death for denying that the Bible was divinely inspired. Today, the weight of history, the bulk of case law and the attitudes of the general public stand mostly on the side of freedom of speech, though the pendulum swings in wartime as well as when advertising, harassing an employee, writing for a high-school newspaper, running for office or disparaging a business in Texas. Here’s a quick history:

Wary of a strong, centralized government, many states agreed to sign onto the Constitution only if the Bill of Rights was added to it. In 1791, the ten amendments were ratified. First among them was a guarantee of freedom of speech and of the press. Its wording was carefully limited, however: “Congress shall make no law…” That left the door open to state laws or other actions that might limit speech. After the Civil War, Congress passed the Fourteenth Amendment promising “equal protection of the laws,” which the Supreme Court eventually came to see as extending the protections of the Bill of Rights to the states.

The first major test of freedom of the press came in 1798, when Congress passed four bills aimed at stifling political opponents of President John Adams’ Federalist Party, many of whom were recent immigrants. The Alien and Sedition Acts made it harder to become a citizen, allowed the president to deport aliens deemed dangerous and made it a crime to publish “false, scandalous, and malicious writing” against the government or its elected officials. Rarely used, the acts were allowed to lapse under Adams’ successor and chief opponent, Thomas Jefferson.

In the early part of the 20th century, communists, socialists and anarcho-syndicalists (ask your history professor) were everyone’s favorite bugaboos. When the Socialist Party mailed leaflets opposed to the draft or Russian immigrants passed out fliers opposed to World War I, district attorneys swarmed like Africanized honeybees at a Texas apiary. For the most part, the U.S. Supreme Court went along for the ride.

In Schenck v. United States in 1919, Justice Oliver Wendell Holmes, Jr., whose poet father is namesake of the town in Eastern Wake County, argued that speech could be suppressed if it presented a “clear and present danger.” His famous example: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” This was a loosely defined test, however, and it was often abused to quiet dissenting voices.

In later rulings, the court limited “clear and present danger” to identifiable and specific risks, such as reporting troop movements or giving instructions on how to build an atomic bomb.

The seeds of free speech were planted in the beginning of the 20th century, however. In a dissent in Abrams v. United States in 1919, Holmes argued that free speech is generally good, since lousy ideas tend to get crushed by the truth in what can be thought of as the “marketplace of ideas.” As he put it: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Justice Louis Brandeis went even further, arguing in 1927 in Whitney v. California, that freedom of speech is an essential condition for democracy. The Founding Fathers, he argued, believed that “the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”

The next great stride came in 1931, when the Supreme Court held in Near v. Minnesota that a state law that prohibited a newspaper from publishing in the future because of past instances of “obscene, lewd and lascivious material” amounted to “prior restraint” and was therefore unconstitutional. (They did not say that prior restraint is always forbidden, however, just that it should be rare and only when absolutely necessary.) “The fact that liberty of the press may be abused by miscreant purveyors of scandal does not make any less necessary the immunity of the press from previous restraint in dealing with official misconduct,” opined the court.

Perhaps the most important test of this ruling came in 1971. U.S. Secretary of State Robert McNamara commissioned a top-secret study of American involvement in Southeast Asia. The 47-volume study revealed that the years leading up to the Vietnam War had seen a number of lies and miscalculations by U.S. policymakers. Daniel Ellsberg, a former Defense Department employee, became so disturbed that he leaked a copy of the so-called “Pentagon Papers” to The New York Times, which began a series of articles based on it. The Justice Department, at the behest of President Nixon, obtained a court injunction to halt further publication on “national security” grounds. In New York Times v. United States, the court allowed the Times to resume publication.

“In revealing the workings of government that led to the Vietnam War,” wrote Justice Hugo Black, “the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”

There remain limits to freedom of speech and of the press. Courts have ruled that commercial speech — advertising, marketing and product information — can be regulated. You cannot make a free-speech claim when caught sexually harassing an employee, price-fixing or setting up a murder contract. Campaign-financing laws restrict politicians from certain kinds of advertising right before elections, and high-school students have basically no rights. And when Oprah declared that she would never eat beef again in a TV special on mad-cow disease, she found herself sued under a Texas law for disparaging a commercial industry. During the course of fighting the lawsuit, she met Dr. Phil — and the rest is syndicated history.

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