In recent weeks, the Obama Administration has been taking heat for perceived abuses of the First Amendment after seizing the telephone records of members of the Associated Press and statements which seem to favor increased electronic surveillance. Recently, David Sirota detailed many perceived first amendment violations in regards to freedom of the press and likened Obama to Richard Nixon. While we have seen such criticisms lobbed frequently during the Obama and Bush Administration, it is the Supreme Court (through the process of judicial review) that usually determines if such violations have taken place.  The Supreme Court has a long history in defining the parameters and limitations of Freedom of Expression.  Over the next few days, I hope to detail them as well as provide some thoughts about Freedom of Expression and the digital frontier.  I hope you enjoy!  Thanks!

The exchange of ideas and freedom of expression are an essential part of American Democracy.  The First Amendment to the Constitution (approved in 1791 along with nine other amendments) protects the freedom of speech and the freedom of the press on American soil.   While these rights are well known, they are not absolute.  Over time and through court rulings, the Supreme Court of the United States has helped define proper limitations to freedom of expression.  According to John R. Vile, speech “Can be so related to action that the First Amendment’s seemingly absolute prohibition on government infringement of the former has been subject to numerous judicial qualifications.”[1]  In addition, the function of the press as a watchdog over government transgressions and its correlation to speech has also needed judicial interpretation.

While the courts have certainly aided in the understanding of these freedoms, the rulings are not without controversy.  Recent decisions related to cases of flag desecration and freedom on the internet have caused significant concern.   Other concerns have been voiced relating to federal encroachment of freedoms correlating to government efforts to promote homeland security and counter terrorist action.  The freedoms of both speech and the press have evolved over the years and will continue to evolve as technology and changed circumstances at home and abroad.

In a speech to his Army officers in 1783, George Washington stated, “If freedom of speech is taken away then dumb and silent we may be led to the slaughter.”[2]  Eight years before ratification of the First Amendment, Washington demonstrated an understanding of the importance of freedom of speech in the American tradition.  While attempts have been made (such as Alien and Sedition Act in 1798 and the shutting down of newspapers critical of Lincoln during the Civil War) to stifle freedom of expression during sensitive times in America’s history, they are usually short lived.  The Supreme Court ultimately has always had authority in cases where Constitutional interpretation was needed, but it had not chosen to exercise its rights in regards to the First Amendment during the 19^th Century.  During the 20^th Century, however, numerous cases have lead to a better understanding of the constitutional limits on freedoms of speech and press in America.

During World War I, the United States Congress passed the Espionage Act of 1917.  The act “authorized the state to punish all individuals who engaged in expression which supposedly undermined the United States economic and political policies. “[3]  Under a broad interpretation, the law gave the government the right to punish any act that was critical of any part of the war effort.  It was an attempt to censor any and all opposition to American involvement in the war, particularly by radical groups.  Charles Schenk (an American Socialist Party member) was one such individual.  After the United States introduced a draft (via the Conscription Act of 1917), Schenk created and distributed leaflets criticizing the war effort and protesting conscription.  Subsequently arrested and charged with espionage and sedition, Schenk appealed the charge on the basis that the punishment violated his freedom of speech.

When the Supreme Court accepted his case, they had committed to hearing their first significant case involving judicial interpretation of the freedom of the First Amendment guarantee of free speech.  In Schenk vs. the United States (1919), the Supreme Court unanimously sided with Congress’ right to restrict speech (with Schenk remaining guilty) in a unanimous 9-0 decision.  In writing the opinion, Justice Oliver Wendell Holmes wrote, “”The question in every case is whether 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 the substantive evils that Congress has a right to prevent.”[4]  Later called the “clear and present danger” test, Holmes asserted that there were many things (such as yelling fire in a crowded building) that are not protected by the Constitution because they cause panic or overwhelmingly negative effects.  For the first time in 1919, the Supreme Court recognized that there had to be limitations to free speech in order to help maintain order and peace in society. While the Schenk precedent would be replaced fifty years later, it was an important one as it established the role of the Supreme Court in defining the limitations of freedom of expression in the 20^th and 21^st Centuries.

In Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights applied only to the federal government and not to the states. A 1925 Supreme Court ruling changed this interpretation – making freedom of speech and its limitations – apply to state and local law as well. In Gitlow v. New York (1925) Benjamin Gitlow was arrested for being involved in the production of a socialist newspaper.  With no clear proof of sedition, Gitlow felt his arrest and sentencing violated his first amendment rights.  Ruling 7-2 in his favor, the court announced that the freedom of both speech and press “were fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.”[5]  This case and subsequent ruling had two important effects on the American legal system.  First, it started the process of nationalizing the Bill of Rights, also known as incorporation, which would take place throughout the 20th century.  Second, it opened up the Supreme Court to hearing future cases related to the violation of freedom of expression by a state or local government.  In broadening the scope of the First Amendment, the court ensured a growing importance in America as many constitutional issues in the future would originate in the states.

In 1931, the landmark case Near v. Minnesota successfully incorporated freedom of press to the states and set one of the most important precedents related to print journalism in American history.  The defendant, Jay Near, and a colleague published an independent newspaper in 1927 which accused local government officials of corruption, graft, and association with organized crime.  A local attorney who drew the ire of Near filed a complaint against the paper under Minnesota’s Public Nuisance Law of 1925.  The law, popularly referred to as a “gag rule,” allowed the state to prevent those found guilty of public nuisance or scandalous writings to be banned from further publishing.  After being ordered to stop publishing his newspaper, Near appealed the ruling to the Minnesota Supreme Court, feeling his first amendment freedoms had been violated.   When the state Supreme Court affirmed the gag rule, Near decided to appeal to the U.S. Supreme Court.  In the Near verdict, the justices voted in a 5-4 decision that Minnesota had violated Near’s rights.  In the majority opinion, Chief Justice Charles Evans Hughes wrote: “The fact that for approximately one hundred fifty years there has been almost an entire absence of attempts to impose previous restrains upon publications… is significant of the deep-seated conviction that such restraints would violate constitutional rights.”[6]

With that statement, Justice Hughes established that prior restraint – a government acting to prevent something from being published – is a violation of the freedom of the press and therefore unconstitutional.  Despite its narrow ruling, the Near decision resulted in setting a precedent that has continued to be followed.  Even in matters of national security, federal courts have been weary of allowing government officials to attempt to control what gets published.

Reading Defining Freedom of Expression and The Supreme Court (Part Two) here.