Adopted in 1791, the First Amendment, states “Congress shall make no law abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Pilon) The freedom of speech documented in the First Amendment is not only a constitutional protection but also an inevitable part of democratic government and independence, which are essential values in society. “Censorship,” according to Justice Oliver Wendell Holmes, “is an almost irresistible impulse when you know you are right” (Sunstein). That is why the American citizen’s right to free speech should be held as the highest virtue and any censorship of freedom of speech should not be allowed, however, should be respected. Freedom of speech is essential part of democratic government because the only way truth can emerge when there is an open competition of ideas. However, there is a strong support of censorship when people start mentioning extremely offensive opinions. Should the freedom of speech be limited in this case? The answer is “No”. “If liberty means anything at all,” writes George Orwell, “it means the right to tell people what they do not want to hear.” (Cox) If we want to enjoy the freedom fully, the full protection should be given to the freedom of speech; there are no compromises about it. Freedom of speech protected by the First Amendment is not just a right, which can be declared or abolished. According to the “liberty theory,” proposed by some legal scholars, freedom of speech is an essential part of the liberty of every person who pursues an individual self-determination and self-realization (Cox).
Thus, freedom of speech is also a global right one that permits freedom of personal development and self-expression. Another theoretical ground to support the freedom of speech is called “tolerance theory.” It holds that the ability to teach and promote tolerance is one of the most important assets of freedom of speech (Cox). From this perspective, freedom of speech itself excludes any type of intolerance, which sometimes appears in a threatening form (religious intolerance, racial intolerance). The “tolerance theory” implies self-restraint, which is the only appropriate response to any ideas, even those that we may personally may dislike or hate. The “tolerance theory” provides a broader context for exercising tolerance in a conflict-ridden democratic society. Furthermore, in legal practice there are certain restrictions on freedom of speech imposed by the Supreme Court. They define a few categories of speech, which are considered not to be fully protected by the First Amendment. These categories include defamation, advocacy of imminent illegal conduct, obscenity and, fraudulent misrepresentation (Farber). However, if the speech does not fall within one of these categories, there are no grounds for the government to argue that freedom of speech should be restricted because of its harmful content. One of the common bases for partial censorship is proof that the freedom of speech causes imminent illegal action. The Supreme Court has already drawn a careful line between general abstract theories and political dissent on one hand and particular illegal acts incitement on the other. This line is drawn by definition of “clear and present danger” test (Farber). The government cannot sue the speaker on the basis of its tendency or possibly illegal conduct incitement. Before any speech is punished on the grounds of incitement, there is an obligatory three-part criterion that should be met. First, the speech must directly incite lawless action.
Second, the context of speech must imply imminent breaking of the law, rather than call for illegal conduct at some indefinite future time. At last, there should be a strong intention to produce such conduct (Farber). Such “clear and present danger” test determines the level of probability of threat imposed by the speech in question. However, the evil, which the government tries to prevent by outlawing the advocacy, does not outweigh the harm of outlawing the free speech. Only when the imposed danger becomes evident, the freedom of speech may be questioned. We must be aware that the price for preventing several cases of the openly declared illegal conduct may be paid by restriction of one of the most essential rights that constitute freedom for the entire nation. For the wellbeing and public safety, the Supreme Court has imposed certain regulations on the freedom of speech not because of its content, but because of the time, place and, manner the speech is being expressed (Farber). The court pointed out in Snyder v. Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had deliver a different message under exactly the same circumstances (Supreme Court of the United States). However, these rules do not limit the actual freedom of speech and are not even upheld, if there is no public need for this. However, concerning the content-neutral regulation, it raises many controversial issues. The content-neutral regulation requires a very careful distinction and therefore may sometimes be misinterpreted. There is a raising concern that such regulation may weaken people’s right to participate, especially if the government puts too many restrictions on how the ideas should be voiced. Thus, by analyzing the current issues concerning the First Amendment right to free speech in the United States, I wanted to show the perspective of outlawing this right, and the negative aspects that such outlawing may involve. Freedom of speech has served a crucial role for the right to dissent and for the entire principle of democracy in our society. This law was developed during the course of American history and only after numerous struggles it was achieved. The evolution of this law is still in progress however, the limitation of the basic right to free speech may as well limit our freedom and democracy, therefore should be respected and protected.
Cox, A. A Freedom of Expression. Cambridge: Harvard University, 1981. Print. The Declaration fo Independence and the Consitituion fo the United States. The Declaration fo Independence and the Consitituion fo the United States. By Roger Pilon. N.p.: Cato Institute, 2000. 1-10. Print. Farber, D. The First Amendment. New York: Foundation Press, 1998. Print. Sunstein, C. Democracy and the Prolem of Free Speech. New York: Free Press, 1993. Print. United States v. Kozminski – 487 U.S. 931 (1988). U.S. Supreme Court, n.d. Web. 1 Apr. 2013. <http://supreme.justia.com/cases/federal/us/487/931/>. United States. Supreme Court. “Supreme Court of the United States of America.” Supreme Court of the United States of America, Oct. 2010. Web. 1 May 2013. <http://www.supremecourt.gov/opinions/10pdf/09-751.pdf>.
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