Aug 19, 2023 By Gary Stout 5 min read

Many Americans who invoke free speech, often in favor or against a political position, have little idea of what free speech actually entails. This commentary will examine how the idea of free speech has evolved through a series of groundbreaking court opinions. It will also consider how free speech is misapplied in today’s political and cultural wars.

The framers of our Constitution viewed free speech as a basic right, guaranteed in the First Amendment. Recently, this longstanding cornerstone of our democracy has shifted from something to be protected to a weaponized club with which to bash political opponents.

The free speech clause in the First Amendment prohibits the government from “abridging the freedom of speech,” but does not define what that freedom means. Interpretation has largely been left to the courts. Over the years, activists have utilized free speech to abolish slavery, gain women’s suffrage and civil rights, expose government lies, and protect the media. The American Civil Liberties Union, a vigilant watchdog of free speech, has stated, “Protecting free speech means protecting a free press, the democratic process, and diversity of thought.”

What follows is a summary of free speech rulings under our evolving law as outlined by the organization Speechfirst.org.

In 1801, President Thomas Jefferson allowed the Sedition Act and Alien Friends Act to expire because they violated the First Amendment. In 1919, the Supreme Court announced the famous “clear and present danger” test to determine when a state could constitutionally limit an individual’s free speech rights under the First Amendment.

In 1942, the U.S. Supreme Court unanimously upheld an arrest, ruling that “fighting” words, those that inherently cause harm or are likely to create an immediate disturbance, are not protected under the First Amendment. In 1943, the court established that students could not be punished for refusing to say the Pledge of Allegiance or to salute the American flag. Justice Felix Frankfurter, in 1951, proposed a “balancing test” to weigh the gravity of “evil” against the justification of infringing upon free speech in order to avoid danger.

The Supreme Court, in 1951, defended the principle of academic freedom by holding it is necessary for academics to teach, research, and study without government or administrative interference. In 1958, the Supreme Court acknowledged that First Amendment protections were extended to the LGBTQ community. Historically, governments had harassed this community by labeling its conduct “obscene” and its gatherings as “riots.”

The Illinois Supreme Court ruled in 1964 that Lenny Bruce’s comedy routine was social commentary and not obscenity. His legal victory helped inspire future comedians to challenge social mores and boundaries. Also, in 1964, the Supreme Court established an “actual malice” principle in libel law – requiring a higher standard to prove libel, protect criticism and further strengthen the rights of free speech.

In 1969, the court threw out the conviction of a Ku Klux Klan member and established that speech merely advocating violence is protected unless the speech is likely to incite “imminent lawless action.” In 1972, the Supreme Court ruled that college campuses are not exempt from the First Amendment and that those protections apply at the same level as in the community at large. In 1990, the Supreme Court found the Texas flag desecration law (and those of 47 other states) to be unconstitutional, ruling that flag burning constitutes “symbolic speech” and is protected by the First Amendment.

The definition of free speech has regularly been updated along with the country’s changing views. Today, First Amendment protections ensure that all viewpoints can be freely communicated without fear of retribution. It is therefore troubling and irresponsible for political figures to inaccurately invoke the right to free speech or to improperly regulate speech without considering the harm to our democracy.

First, consider the political pundits and Republican members of Congress who claim that Donald Trump cannot be indicted on conspiracy charges against the American people because he was “exercising his right to free speech.” The First Amendment guarantees that Trump and his supporters may manufacture and repeat untrue election fraud claims wherever and whenever they please. However, taking action to form a criminal conspiracy to interfere with the transfer of presidential power is not protected speech.

Next, consider banning books from libraries and public schools. In 2022, there were 1,269 efforts to censor books and other library resources. A group called Moms for Liberty has been active in banning books with LGBTQ content and those that present a balanced historical perspective on slavery. When federal judges ordered books returned, some communities closed their libraries. Recently, a judge blocked Arkansas from enforcing a law against librarians that would restrict reading material for minors.

Third, in the U.S. Senate, there is the attempt by conservative Lindsey Graham of South Carolina and progressive Elizabeth Warren of Massachusetts to form something called the Digital Consumer Protection Commission. Presumably, it would regulate matters like data privacy, distribution of false information, and competition. Many free speech advocates believe such a commission would destroy the open internet with partisan bureaucrats in charge of policing technology.

Free speech is one of the more complex aspects of a very messy democratic system. Political censorship must not silence topics offensive to some Americans but important to others. Our guiding light should be the famous words of Justice Oliver Wendell Holmes Jr. He wrote, “The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate.”

Gary Stout is a Washington attorney.