First Amendment Guarantees and Limitations

One of the most delicate areas of constitutional interpretation has been the interpretation of the First Amendment. The First Amendment's protection of speech and expression is central to the concept of American political system. It guarantees that “Congress shall make no law…abridging the freedom of speech or of the press.” Freedom of speech is the liberty to speak openly without fear of government restraint. It is closely linked to freedom of the press because this freedom includes both the right to speak and the right to be heard. The U.S Supreme Court has established constitutional protection to several aspects of speech and the press. Although the Supreme Court has allowed for few governmental bans on most types of speech, guarantees protected by the First Amendment have been subject to scrutiny by the Supreme Court to fit the needs of the citizens.

A democracy depends on the free exchange of ideas, and the First Amendment shows that the Framers were well aware of this fact. The Supreme Court protects Various aspects of speech and press with respect to prior restraint, symbolic speech, and hate speech. Prior restraint is the constitutional doctrine that prevents the government from prohibiting speech or publication before the fact. As seen in the Alien and Sedition Acts, Congress had attempted to limit speech before the fact as early as 1798, but the U.S. Supreme Court did not take a firm position on this issue until the 1970’s. Likewise, in the Pentagon Papers case, the Supreme Court ruled that the U.S government could not block the publication of secret Department of Defense documents illegally furnished to the Times by anti-war activists. In addition to limiting prior restraint, the Supreme Court has extended what the First Amendment has defined as pure speech to symbolic speech. Symbolic speech is symbols, signs, and other methods of expression. In Stromberg v. California, the Supreme Court overturned the conviction of a communist youth group director under a state statute that prohibited the display of a red flag, a symbol of opposition to the U.S government. Similarly, the right of student to wear black armbands in protest of the Vietnam War was protected in Tinker v. Des Moines Independent Community School District. Hate speech is also protected under the First Amendment’s “free speech” guarantee. Hate speech is, outside the law, communication that vilifies a person or a group on the basis of color, disability, ethnicity, gender, nationality, race, religion, sexual orientation, or other characteristic. In R.A.V v. City of St. Paul, the Court ruled that a white teenager who burned a cross on a black family’s front lawn, could not be charged under the law because the First Amendment prevents governments from “silencing speech on the basis of its content.”The Court narrowed this definition in 2003, ruling that state governments could constitutionally restrict cross burning when it occurred with the intent of racial intimidation.

Although there are few bans on most types of speech, some forms of expression are not protected by the government. Libel, fighting words, obscenity, and lewdness are not protected by the First Amendment because “such expressions are no essential part of any exposition of ideals, and are of such slight social value as a step  to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Libel is a written statement that defames a person’s character. Slander is untrue spoken statements that defame the character of a person. In the court case New York Times Co. v. Sullivan, An Alabama state court found the Times guilty of libel for printing a full-page advertisement accusing Alabama officials of physically abusing African Americans during various civil rights protests. However, the Supreme Court overturned the conviction and established that a finding of libel against a public official could stand only if there was a showing of “actual malice,” or a knowing disregard for the truth. In the case of Chaplinsky v. New Hampshire, the Court stated that fighting words, or words that “by their very utterance inflict injury or tend or incite an immediate breach of peace,” are not subject to the restrictions of the First Amendment. Likewise, obscenity-another form of speech-is not protected under the first amendment. In Roth v. U.S. the Court held that, to be considered obscene, the material in question had to be “utterly without redeeming social importance,” and articulated a new test for obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interests.” Over time, different situations have altered the Court’s and America’s perception of what works are obscene. Different interpretations of the First Amendment will lead to different conclusions.