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Freedom of Speech
Congress shall make no law . . . abridging the freedom
of speech....
— First Amendment to the U.S. Constitution

If there is one right prized above all others in a democratic society, it is freedom of speech. The ability to speak one's mind, to challenge the political orthodoxies of the times,
to criticize the policies of the government without fear of recrimination by the state is the essential distinction between life in a free country and in a dictatorship. In the pantheon of the rights of the people, Supreme Court Justice Benjamin Cardozo, who served from 1932 to 1938, wrote of free speech that it is "the matrix . . . the indispensable condition of nearly every other freedom."

If Americans assume that free speech is the core value of democracy, they nonetheless disagree over the extent to which the First Amendment protects different kinds of expression. Does it, for example, protect hate speech directed at particular ethnic or religious groups? Does it protect "fighting words" that can arouse people to immediate violence? Is obscene material covered by the First Amendment's umbrella? Is commercial speech — advertisements or public relations material put out by companies — deserving of constitutional protection? Over the last several decades, these questions have been part of the ongoing debate both within the government and in public discussion, and in many areas no consensus has yet emerged. That, however, is neither surprising nor disturbing. Freedom is an evolving concept, and, as we confront new ideas, the great debate continues. The emergence of the Internet is but the latest in a series of challenges to understanding what the First Amendment protection of speech means in contemporary society.

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Freedom of speech was not always the all-encompassing right it is today. When Sir William Blackstone wrote his famous Commentaries on the Laws of England in the mid-18th century, he defined freedom of speech as the lack of prior restraint. By that he meant that the government could not stop someone from saying or publishing what he believed, but once a person had uttered those remarks, he could be punished if the type of speech was forbidden. The English, like the ancient Greeks, had established legal restrictions on three types of speech — sedition (criticism of the government), defamation (criticism of individuals), and blasphemy (criticism of religion) — each of which they called "libels." Of these three, the one that is most important in terms of political liberty is seditious libel, because ruling elites in Blackstone's era believed that any criticism of government or of its officials, even if true, subverted public order by undermining confidence in the government. While the government, according to Blackstone, could not stop someone from criticizing the government, it could punish him once he had done so.

During the 17th and 18th centuries, the British Crown prosecuted hundreds of cases of seditious libel, often imposing draconian penalties. When William Twyn declared that the people had the right to rebel against a government, he was arrested and convicted of sedition and of "imagining the death of the King." The court sentenced him to be hanged, emasculated, disemboweled, quartered, and then beheaded. Given the possibility of such punishment after publication, the lack of prior restraint meant little.

The English settlers who came to North America brought English law with them, but early on a discrepancy arose between theory and practice, between the law as written and the law as applied. Colonial assemblies passed a number of statutes regulating speech, but neither the royal governors nor the local courts seemed to have enforced them with any degree of rigor. Moreover, following the famous case of John Peter Zenger (discussed in the chapter on "Freedom of the Press"), the colonists established truth as a defense to the charge of seditious libel. One could still be charged if one criticized the government or its officials, but now a defendant could present evidence of the truth of the statements, and it would be up to a jury to determine their validity.

From the time the states ratified the First Amendment (Congress shall make no law?abridging the freedom of speech, or of the press?) in 1791, until World War I, Congress passed but one law restricting speech, the Sedition Act of 1798. This was an ill-conceived statute that grew out of the quasi-war with France and which expired three years later. Yet although this act has been widely and properly condemned, one should note that it contained truth as a defense. During the American Civil War of 1861-1865, there were also a few minor regulations aimed at sedition, but not until the Espionage Act of 1917 and the Sedition Act of 1918 did the real debate over the meaning of the First Amendment Speech Clause begin. That debate has been public and has involved the American people, Congress, and the President, but above all it has been played out in the courts.

* * *

Perhaps the most daunting task facing the American people as well as the judicial system is to determine how the First Amendment will apply to the new electronic technology. Is the Worldwide Web just another example of Justice Holmes's marketplace of ideas? Does the likelihood that some day every household in the world will have access to material already on the Web, and that each individual will have the opportunity to go online and say to the whole world what he or she wants make the First Amendment irrelevant?

These and other questions continue to be debated in the United States — in the courts, in congressional hearings, in presidential commissions, in universities, in public forums, and in individual households. Among the rights of the people none is so treasured as that of free speech, and none is so susceptible to changing views. Most Americans recognize, however, that as Justice Brandeis pointed out, their responsibilities as citizens require them to have the opportunity not only to propose unpopular views but also to hear others espouse their beliefs, so that in the end the democratic process can work. And while people are not always comfortable with the idea, they admit the truth that Justice Holmes declared when he said that the First Amendment is there not to protect the speech with which we agree, but the speech that we hate.