Freedom of Speech

The Importance of Freedom of Speech First Amendment rights are the foundation of democracy in the United States. They help to create an open society in which people have the ability to share and discuss differing opinions and beliefs. In the United States, people's opinions and beliefs do not have to be the same as those of the government or the majority. Minority viewpoints are protected. There are times when the government can regulate the time, place, and manner of speech, butgenerallyit cannot censor the content of protected expression. Obscenity Obscenity is one form of personal expression that the government regulates. The Supreme Court determines a work to be obscene if sex is depicted in an offensive or illegal manner and the work lacks serious literary, artistic, political, or scientific merit. Definitions of obscenity can vary according to state law. Defamation The First Amendment does not protect defamatory expression. Defamation is a false expression that damages another person's reputation. A person who intentionally spreads such false information can be held legally accountable. Defamatory speech that is spoken is called slander. Defamatory speech that is written is called libel. Commercial Speech Most advertising is considered commercial speech. Commercial speech does receive some First Amendment protection. However, the government may restrict commercial speech that is false, misleading, or promotes a product, service, or conduct that is illegal. Fighting Words, Offensive Speakers, and Hostile Audiences In order to maintain public peace and order, the government may have to decide between protecting a person's right to free speech and protecting the public from dangerous situations. The Constitution does not protect speech that encourages people to perform dangerous or illegal acts. Also, the First Amendment does not generally protect abusive language, called fighting words. Many people disagree over whether such speech should be censored and punishable by the law. Time, Place, and Manner Restrictions While some laws regulate the content of people's expression, others regulate when, where, and how expression can be used. The government's power to regulate speech in public forumssuch as a city street or parkis fairly limited. Symbolic Speech Symbolic speech is a form of expression that conveys an idea without using words. The courts have guidelines to determine whether certain conduct should be protected under the First Amendment as symbolic speech. Vagueness and Overinclusive Laws Due to the great importance of freedom of expression, laws regarding speech must be clear and understandable and must not prohibit any expression that should be protected.

Freedom of the Press

The First Amendment protects media publications such as radio, television, newspapers, and books from government censorship. Therefore, the government does not have the right to limit the publication, production, or use of any media simply because it finds it offensive. Freedom of the press raises many controversial and competing claims concerning where, when, how, and by whom this freedom is used in everyday life. Prohibiting Publication Prior restraint is a term used to describe the censorship of a publication or production before its actual release. The courts generally find this kind of censorship unconstitutional. One exception would be when the publication or production would cause serious and irreversible harm, such as publishing confidential military plans. Any restriction on media productions must be reasonable and intended to prevent immediate harm in order to be constitutional. Denying the Press Access to Information Many people believe that freedom of press includes the right to access information as well as the right to distribute it. The Freedom of Information Act (FOIA) grants the public access to certain government information and records. Government information and records are available to the public upon request as long as the records are not strictly confidential documents. Some states also have laws similar to the FOIA that provide citizens access to state agency files. Generally, the press has no greater freedom to access information than the public. Sometimes, in the interest of justice, a judge will impose a gag order that prevents the attorneys in a trial from discussing the case. Often, representatives of the media will challenge such a gag order in court. The judge will have to balance the interest in a fair trial against the right of the public and the press to information.

Requiring the Press to Disclose Information Reporters are often given confidential information for a news story. Sometimes, the sources of confidential information are needed for important purposes such as a court case. Journalists often are reluctant or unwilling to reveal confidential sources because they believe it betrays the source's trust or will make people unwilling to give information to the press in the future. Laws known as "shield" laws can protect a journalist from revealing the source of confidential information.

Expression in Special Places

The law recognizes only a limited right to exercise freedom of speech in schools and on military bases and prisons. First Amendment rights are granted in these special places as long as the expression does not interfere with the goals of the setting. The First Amendment in Public Schools A public school can restrict or regulate forms of expression that are inconsistent with the school's educational mission. For example, a school could deny a student the right to give a speech that promotes gang violence. However, a principal cannot deny publication of an article that expresses an opinion that he or she merely does not like. Regulations must be reasonable and have an educational purpose. In some circumstances a student's clothing or certain style of appearance might also be restricted if it disrupts the learning process or promotes something incompatible with the school's educational atmosphere and mission. The First Amendment in Prisons and the Military While freedom of expression can be somewhat limited in schools, people in prison and the military often face much greater First Amendment restrictions. Every aspect of a person's life is closely regulated in prison and on a military base. These people do not enjoy the same liberties and freedoms as those who live outside these institutions. In these two settings, many forms of expression can be restricted in the name of order and discipline.