Did Americans invent free speech?

No, American colonists inherited a rich free speech tradition from the British; the tightly linked rights of free speech and press could be traced back centuries through a dense web of common law. But within this common law tradition free speech was largely defined as no "prior restraint." People had the right to say or publish what they wanted, but they were not protected from prosecution for sedition or seditious libel for what they wrote.

What is seditious libel?

The basic crime of sedition involves speaking or acting to incite rebellion against government authority. But under British common law, a person could be found guilty of this crime for any statement that disrespected the social hierarchy upon which the political order rested. Believing that there was a natural order to things—superiors and inferiors, rulers and subjects—British common law labeled as seditious any statement that threatened to subvert the "natural" social hierarchy. Moreover, a person could be found guilty of sedition under British law regardless of the truth, effect, or intent of the statement. This was because the courts could legally impose a "bad tendency test," and consider what might have happened as a consequence of a statement. What actually did happen was beside the point. If the court could imagine a plausible set of negative events resulting from an individual's statement, he could be convicted of sedition on the basis of this fabricated scenario.

Did American colonial courts also punish sedition?

Yes. But in 1735, Peter Zenger, a New York newspaper owner, won acquittal on sedition charges by convincing a jury that truth should be a defense against sedition charges—that is, if the statements made about a government official were true, the speaker could not be found guilty of seditious libel.

Did Peter Zenger's acquittal lead to a more "modern" understanding of freedom of speech?

Not completely. Colonial legislatures continued to pass sedition acts punishing anti-government speech through the Revolution. And in 1798, the United States Congress passed the Sedition Act making it a crime to "write, print, utter, or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President."¹ But this sedition act explicitly codified the understanding of sedition advanced by Zenger in 1735. Truth was a defense, the state had to prove malicious intent for a charge to stick, and juries ruled on the question of law as well as the facts; that is, citizen-jurors were given the authority to determine not just whether a certain statement was made, but whether it really constituted sedition.

Has Congress passed any other sedition acts since 1798?

Yes. In 1917 and 1918, Congress passed two acts hoping to silence opposition to American involvement in World War I. The Espionage and Sedition Acts criminalized various forms of criticism of the government. For example, the Sedition Act made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States."²

And in 1940, Congress passed the Smith Act making it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States."³ This act was prompted by concerns surrounding the outbreak of war in Europe but it continued to find support after World War II among people worried that America faced a threat from communist infiltration.

Did the Supreme Court ever rule on the constitutionality of these more modern sedition acts?

Yes. The Supreme Court ruled that they were constitutional. In 1919, in Schenck v. United States, the United States Supreme Court held that speech was not protected if "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about . . . substantive evils."⁴ The "clear and present danger test" established in this ruling became the standard test for evaluating "dangerous" speech through the rest of the century.

During the 1950s, the Smith Act was ruled constitutional in two cases. In Dennis v. United States and Yates v. United States, the Supreme Court held that the government could legally act to punish speech that advocated violent action against the government. But in Yates, heard six years after Dennis, the Court narrowed the Smith Act's application in holding that for advocacy to be illegal it must aim at achieving concrete results. Advocacy of violent anti-government action "as an abstract principle" did not justify government intervention. And this sort of abstract advocacy was protected even when "such advocacy or teaching is engaged in with evil intent," so long as it was "divorced from any effort to instigate action to that end."⁵

How does the Court currently view sedition or "dangerous" speech?

The most important ruling on dangerous speech in recent decades was Brandenburg v. Ohio in 1969. In that case, the United States Supreme Court ruled that the "advocacy of the use of force or of law violation" was protected except where "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."⁶ In other words, you may advocate the use of violence and illegal activities to overthrow the government up to the point that the Court determines that (1) your efforts are aimed at "producing imminent lawless action" and (2) are "likely to incite or produce such action."

Is obscenity protected by the First Amendment?

For the most part, no. In 1957, the Court ruled that obscenity was unprotected because it was "utterly without redeeming social importance." But in 1969 the Court held that people could possess pornography (but not child pornography) in their own homes. The Court argued that this limited right was achieved by combining rights of speech and privacy. The production and distribution of pornography remained illegal as these commercial processes did not fall under privacy right protection.

How has the Court defined obscenity?

The Court offered its most recent definition in 1973. In Miller v. California, the Court held that pornographic works "taken as a whole, appeal to the prurient interest in sex . . . portray sexual conduct in a patently offensive way, and . . . as a whole, do not have serious literary, artistic, political, or scientific value." Among the more important details within this ruling was that the judge and jury could apply local community standards in applying these criteria. Whether a film aimed at a person's prurient instincts and whether sex was portrayed in an offensive way could be answered by applying local norms, not those of some "hypothetical national standard." ⁷

Are students protected under the First Amendment?

To a certain extent, yes. In 1969, in Tinker v. Des Moines, the Supreme Court held that students who wore black armbands to protest the Vietnam War were protected in their expression by the First Amendment. "It can hardly be argued," Justice Abe Fortas wrote in the majority opinion, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."⁸ But more recent cases have trimmed the guarantee suggested by Tinker. In 1986, the Court ruled that school officials could punish a student for the "offensively lewd and indecent" speech that he gave during a school activity because it disrupted the learning environment.⁹ And in 1988, the Court held that school officials could censor a student newspaper because it was not a "forum for public expression" but was rather a "regular classroom activity." As such, the paper deserved not the broad protection offered to the free press under the First Amendment, but rather the much narrower protection offered to students in a classroom setting, where "educators are entitled to exercise greater control."¹⁰