Free Speech: A Law's Evolution And Legacy

The concept of free speech has a long history, dating back to ancient Greece, where the term parrhesia meant free speech or to speak candidly. The idea of free speech was later vindicated by Erasmus and Milton, with the latter publishing Areopagitica in 1644, an impassioned plea for freedom of expression and toleration of falsehood.

In the modern era, free speech is protected as a human right in the Universal Declaration of Human Rights, which states that everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression. This right is also enshrined in the First Amendment to the United States Constitution, which states that Congress shall make no law...abridging the freedom of speech.

However, it is important to note that free speech is not absolute and is subject to certain limitations, such as libel, slander, obscenity, pornography, sedition, incitement, fighting words, hate speech, and more. These limitations vary across different countries and legal systems.

The First Amendment

> "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• Speech inciting illegal actions or soliciting others to commit crimes

Freedom of Speech in Schools

Freedom of speech is a principle that supports an individual's or community's right to express opinions and ideas without fear of censorship or legal repercussions. The First Amendment of the United States Constitution, adopted on December 15, 1791, guarantees freedom of speech, and this right applies to students and teachers in schools. The Supreme Court has ruled that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." This means that students have the right to express their beliefs and engage in symbolic speech, such as wearing armbands to protest a war. However, this right is not absolute and can be restricted in certain situations, such as when it interferes with the functioning of the school or violates school policies.

In the context of schools, the Supreme Court has provided a general outline of students' First Amendment rights through four landmark cases: Tinker v. Des Moines Independent Community School District (1969), Bethel School District v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), and Morse v. Frederick (2007). These cases give public school officials more leeway to regulate speech compared to public college administrators. Let's explore each of these cases and their implications for freedom of speech in schools:

• Tinker v. Des Moines Independent Community School District (1969): This case affirmed that students have constitutional rights in public schools. Students in Des Moines, Iowa, organized a silent protest against the Vietnam War by wearing black armbands. The school officials banned the wearing of armbands, and the students who violated the policy were suspended. The Supreme Court ruled in favor of the students, stating that an "undifferentiated fear or apprehension of disturbance" is not enough to limit their expressive rights. This case set the standard for free speech in schools, protecting students' right to engage in symbolic speech as long as it does not disrupt the functioning of the school.
• Bethel School District v. Fraser (1986): In this case, a high school student was suspended for giving a speech containing sexual innuendos and double entendres at a school assembly. The Court upheld the suspension, stating that schools can punish students for "lewd," "vulgar," "indecent," and "plainly offensive" speech during assemblies or other mandatory events.
• Hazelwood School District v. Kuhlmeier (1988): The Court upheld a school principal's decision to remove articles about student experiences with pregnancy and divorce from a student newspaper. They reasoned that the newspaper was part of the curriculum and that educators have the right to exercise editorial control over the content to maintain legitimate pedagogical concerns.
• Morse v. Frederick (2007): In this case, a student held up a sign that read "Bong Hits 4 Jesus" at a school-sponsored event. The Supreme Court found that the school did not violate the student's First Amendment rights by suspending him, as they considered the sign to be promoting illegal drug use.

While these cases provide important guidelines, it's worth noting that First Amendment rights typically do not apply in private schools. Additionally, public schools can have dress codes and rules that do not infringe on students' freedom of speech. For example, a school can prohibit wearing hats without violating free speech rights, but they cannot prohibit specific types of hats based on the message expressed.

In conclusion, freedom of speech in schools is a complex issue that requires a balance between protecting students' constitutional rights and maintaining a safe and orderly learning environment. The Supreme Court has provided guidance through landmark cases, but each situation must be assessed individually to determine if the speech is protected or restricted.

Core Political Speech

The First Amendment, adopted on December 15, 1791, protects freedom of speech in the United States. This includes core political speech, which consists of conduct and words that aim to directly rally public support for a particular issue, position, or candidate.

The First Amendment prohibits laws that regulate core political speech unless they are narrowly tailored to serve a compelling state interest. This is known as "strict scrutiny" analysis, and it is applied when core political speech is expressed in traditional public forums like streets, sidewalks, and parks. Strict scrutiny is also applied to laws regulating core political speech in "designated public forums," which are areas created by the government specifically for political discussion. In contrast, courts apply a lower level of scrutiny in nonpublic forums like household mailboxes, military bases, airport terminals, and indoor shopping malls, allowing the government to limit core political speech if the limitation is reasonable.

The Supreme Court has ruled on several cases involving core political speech, including Citizens United v. Federal Elections Commission (2010) and Buckley v. Valeo (1976). In Citizens United, the Court ruled that limiting the amount of money corporations and unions could spend on political campaigns violated their First Amendment rights, as electioneering communication is a form of core political speech. In Buckley v. Valeo, the Court concluded that discussion of public issues and debate on the qualifications of candidates are forms of political expression integral to the system of government established by the federal Constitution.

Time, Place, and Manner Restrictions

The concept of free speech has a long history that predates modern international human rights instruments. The ancient Greeks pioneered free speech as a democratic principle, with the term "parrhesia" meaning "free speech" or "to speak candidly" appearing in Greek literature around the end of the 5th century BC. In the context of ancient Athens, parrhesia became a fundamental aspect of democracy, allowing leaders, philosophers, playwrights, and citizens to engage in open discussions about politics and religion and to criticise the government in certain settings.

In the modern era, the right to freedom of expression has been recognised as a fundamental human right in the Universal Declaration of Human Rights (UDHR) and international human rights law by the United Nations. Article 19 of the UDHR states that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression", including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers.

While freedom of speech is a fundamental principle, it is not absolute and may be subject to certain limitations or restrictions. One type of restriction that is commonly applied is known as "time, place, and manner" restrictions. These are content-neutral limitations imposed by governments on expressive activities. Such restrictions aim to regulate the when, where, and how of speech without considering the content of the speech itself.

• Imposing limits on the noise level of speech, such as restricting the use of loudspeakers or microphones above a certain decibel level.
• Capping the number of protesters allowed in a given forum or limiting crowd sizes without a permit.
• Restricting the timing of demonstrations, such as barring early-morning or late-evening protests.
• Prohibiting certain types of speech or conduct within government buildings or specific areas, such as schools, hospitals, or residential neighbourhoods.
• Restricting the size or placement of signs or banners during protests or on government property.

To be valid, time, place, and manner restrictions must meet certain criteria. Firstly, they must be content-neutral, meaning they cannot discriminate based on the subject matter or viewpoint of the speech. Secondly, they must be narrowly tailored to serve a significant governmental interest, such as public safety or the protection of the rights of others. Finally, they must leave open alternative channels for communication, ensuring that individuals can still express their views through other means.

The application of time, place, and manner restrictions varies depending on the type of forum being considered. Traditional public forums, such as public sidewalks or parks, have high standards for restricting freedom of expression due to their historical significance for gathering and expression. Designated public forums, such as government buildings or university campuses, may also impose restrictions but must demonstrate an important public need. Nonpublic forums, including private property and certain publicly owned spaces like military bases, are the most likely to allow restrictions without violating the First Amendment.

Speech Plus

The concept of free speech is a democratic ideal that dates back to ancient Greece, with the term "parrhesia" meaning "free speech" or "to speak candidly". Free speech is the right of an individual or community to express their opinions and ideas without fear of retaliation, censorship, or legal sanction. This right is recognised as a human right in the Universal Declaration of Human Rights and international human rights law by the United Nations.

In the United States, free speech is strongly protected by the First Amendment to the U.S. Constitution, which states:

> "Congress shall make no law...abridging the freedom of speech."

The First Amendment was adopted on December 15, 1791, as part of the Bill of Rights, the first ten amendments to the United States Constitution. It protects freedom of speech, assembly, and worship, and applies to state and local governments under the incorporation doctrine.

While the First Amendment guarantees the right to express ideas and information, it does not specify what exactly is meant by freedom of speech. Over the years, the U.S. Supreme Court has helped define what types of speech are protected under U.S. law. The Court has recognised that governments may enact reasonable time, place, or manner restrictions on speech.

Types of Speech Not Protected by the First Amendment:

• Obscene material, such as child pornography.
• Plagiarism of copyrighted material.
• Defamation (libel and slander).
• Speech inciting illegal actions or soliciting others to commit crimes.
• Speech that would be deemed a "true threat", where an individual reasonably perceives an immediate threat to their physical safety.
• Harassment in an educational institution that is aimed at an individual based on a protected characteristic (such as race, gender, sexual orientation, or religion), is pervasive and severe, and creates an intimidating, hostile, or demeaning environment.
• Speech integral to illegal conduct.
• Fraud.
• Speech that incites imminent lawless action.
• Commercial speech, such as advertising.

Frequently asked questions