Defining Freedom of Expression and the Supreme Court (Part One): Introduction and Early Cases

ImageIn 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 19th Century.  During the 20th Century, however, numerous cases have lead to a better understanding of the constitutional limits on freedoms of speech and press in America.
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