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Essay/Term paper: Freedom of speech

Essay, term paper, research paper:  Humanities

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Freedom of Speech

Meredith Kerr

Charles W. Locke

U.S. History 121-03


Imagine a time when one could be fined,

imprisoned and even killed for just simply speaking

one"s mind. Speech is the basic vehicle for

communication of beliefs, thoughts and ideas.

Without the right to speak one"s mind freely one

would be forced to agree with everything society

stated. With freedom of speech one"s own ideas can

be expressed freely and the follower"s belief will

be stronger. The words sound so simple, but

without them the world would bee a very different

place. Without the right to speak freely one would

not be able to debt, nor would one be able to

receive full coverage on world issues. There would

be no interesting newspapers, no free religion and

no free thoughts. This amendment seems so simple

but, the boundaries of which issues and incidents

are covered are so complex and varied. What is

legal and illegal? What can be said and cannot be

said? Does this amendment include spoken word only

or does it include action also? What, if any,

limits should be put to this amendment?

As long as the government has existed, people

have battled over censorship. Censorship takes on

all different shapes and forms: banning of books,

television guidelines, laws that curb specific

types of speech, and imprisonment or even death for

openly speaking. For example, in sixteenth century

England, a loyal subject of Henry VII was

imprisoned for saying, "I like not the proceedings

of this realm."1 In earlier times this would have

been punishable by death for treason.

The need for freedom of speech was first

brought up in Massachusetts Body of Liberties in

1641. After the Revolutionary War in America, many

states recommend that free speech be put in the

United States Constitution. Nevertheless, freedom

of speech was written into the Bill of Rights and

was ratified in 1791.

A few years after the First Amendment was

ratified, the government passed the Sedition Act of

1798. This was to help prevent resistance or

rebellion against the government. It also made it

illegal to print, write or say "any false,

scandalous and malicious" things against the

government. One person was convicted under the act

for ridiculous pomp, foolish adulation, and selfish


This was never challenged by the

Democratic-Republicans because of the

Federalist-dominated the court rule. The act

eventually ended the Federalists in 1800 and was

destroyed itself. There was no other sedition law

passed before 1917.

Between 1800 and 1917, the individual states

placed more restrictions on the freedom of speech

than did the Federal government. There was a lot

of trouble between groups trying to form work

unions and picketers. The unions often tried to

challenge the boundaries of speech and actions.

They said picketing was protected speech. Their

business leaders saw it as coercive actions. The

courts routinely supported the business leaders and

issued injunctions, orders prohibiting a specified

action to prevent union pickets.

Slaves also fell outside the boundaries of the

protected speech. In the south freely speaking

about slavery was frowned upon. They would also

censor mail to make sure no abolitionist materials

were being shipped to the south. In the 1830"s

pro-slavery people convinced the government to stop

taking petitions against slavery. In 1844 Congress

was forced to repeal this statement because of the

anti-slavery enragement with denial of free speech

and petition.

During World War I the only way the government

could suppress criticism of the war was to pass the

Espionage Act of 19173. This was done to try and

stop "willfully utter, print, write, or publishing

and disloyal, profane, scurrilous, or abusive

language about the form of the government of the

United States.".

Over 2,000 citizens were convicted under this

act. This law was repeatedly challenges and for

the first time the Supreme Court heard cases on

which they upheld this law. After World War I, the

Court became very involved with trying to find and

set the boundaries for free speech.

There are many types of speech. There is Pure

speech, which is only spoken word, such as church,

debts, and meetings. This form falls under the

boundaries of the first amendment. Speech-plus is

speech with actions, like protest, marches and

picketing. Generally, actions are not as protected

as pure speech. Thirdly, there is symbolic speech.

It conveys its own message without words. This is

known as "expressive conduct". The Supreme Court

says, "We cannot accept the view that an apparently

limitless variety of conduct can be labeled

"speech" whenever the person engaging in the

conduct intends thereby to express an idea"4. Some

"expressive conduct" is protected by the First

Amendment and some isn"t.

Burning draft cards was decidedly not protected

within the First Amendment. The draft was

"necessary to legitimate government purpose of

raising an army" said the Supreme Court. Thus flag

burning was protected. Two of the court cases that

pertain directly with issues discussed are Texas

vs. Johnson case and Stanley vs. Georgia. Both of

these cases were found to be unconstitutional. In

Texas vs. Johnson, Gregory Lee Johnson burned an

American flag as part of a political protest at the

1984 Republican National Convention. Under Texas

law no one should "desecrate" ones flag in a way

that " the actor knows will seriously offend"

anyone other than oneself. Johnson was convicted

of desecrating a flag. The Supreme Court said the

Texas law violated the First Amendment, "If there

is a bedrock principle underlying the First

Amendment, it is that the government may not

prohibit the expression of an idea simply because

society finds the idea itself offensive of


Not long after the Johnson trial, Congress

passed a Flag Protection Act of 1989, which dealt

with the desecration of the flag whether or not any

bystanders took offense. Protesters burnt flags on

the U.S. Capitol steps in response. Soon the act

was deemed unconstitutional because it punished

anyone who "knowingly mutilates, defaces,

physically defiles,....or tramples upon any flag"6.

The court said that those terms did not allow

anyone to show disrespect for any flag, not the

actual act of burning a flag. Therefore, the Court

punished the message intended not the action.

Government cannot force a person to not speak,

but it cannot force a person to speak either. The

government cannot make one speak something that is

against one"s beliefs and neither can they force

one to recant one"s beliefs after they have been


Some issues that fall outside of the free

speech boundaries are obscenity, defamation, fight

words, commercial speech, speech in special places

and speech that leads to illegal action.

Obscenity or profane fall outside the

boundaries of the First Amendment. This is defined

as anything that depicts sex or nudity an a manner

that infringes on one"s decency standards. The one

thing the courts do allow is the possession of

obscene material in one"s own home. In 1989, the

courts decided material in one"s own home. In

1989, the courts decided that "dial-a-porn" (sex

over the phone) was constitutional.

Dancing nude is an expression of one"s body,

but it was made unconstitutional in 1991. Justice

Antonin Scalia argued that a law in Indiana was not

focused on nude dancing since the club in question

only allowed adults to enter.

Scalia said:

The purpose of Indiana"s nudity

law would be violated, I think,

if 60,000 fully consenting adults

crowded into the Hoosierdome to

display their genitals to one

another, even if there were not

an offended innocent in the crowd.7

Defamation is also not protected. Slander is

only considered as defamation when spoken; libel is

defamation through writing. An example is if a

newspaper printed false information on a well

reputation of that person. That person could sue

for libel. A sure fire defense in a defamation

trial is always telling the truth. This also falls

under freedom of press, books, magazines, and

newspapers: most trials fall under this category.

Some say fighting words such as ethnic slurs

should not be protected under the First Amendment.

Being politically correct is a big issue on college

campuses because a lot of them have adopted

policies that do not allow these kinds of fighting

words to be said. Many say this is a form of

censorship, and censorship is unconstitutional. Or

is it? Should people be able to choose for

themselves? Oliver Wendell Holmes said:

Words can be weapons...the

question in every case is

whether the words are used in

such circumstances and are of

such a nature as to create a

clear and present danger that

they will bring about the

substantive evils that Congress

has a right to prevent.8

The basic idea on the Freedom of Speech is

counteract whatever one says or does. With the

Nazi march in 1977, instead of protesting, have an

anti- Nazi march. The most vulnerable people will

pave the road for the speech laws. Ku Klux Klan

marches are protected as well as civil rights, Gay

and Lesbian marches.

There are many ways to interpret the First

Amendment, but as long as one used good sense and

can justify ones" actions then there would be a lot

less conflicts. Protest and fight back only when

necessary and not when someone offends someone for

petty little criticisms. Use common sense and

remember the harder one makes it on another, it

makes it just as hard for oneself. As proven over

and over History does repeat and the heated debt on

the boundaries of this amendment will continue

until the end of time.

Works Cited 

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