Free speech law: How US experience works
Congress shall make no law… 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."
Rarely has such an apparently simple legal text produced so many problems of interpretation. The extent to which solution have been influenced by various free speech theories, or can be justified by reference to them, is explored in later paragraphs.
The rich case law of the US Supreme Court shows, among other things, its reluctance to commit itself to any of these theories, although particular members of the court have taken a distinctive approach to free speech issues. As was suggested, the argument from democracy has been the most popular positive justification for the place of freedom of speech in US constitutional law, its influence being shown by the particularly strong protection given to political speech.
In comparison, the Court has been more willing to countenance restrictions on commercial speech, and advertising, while hard-core pornography may, in theory, still fall entirely outside the scope of free speech coverage.
The “marketplace of ideas” version of the argument from truth, formulated by Holmes, J. in his famous dissenting judgment in the Abrams case [Abrams v. US 250 US616 (1919)] has also exercised a significant influence on US free speech jurisprudence. While some commentators have found attractive rights-based arguments stemming from fundamental human rights to dignity and self-fulfilment, these arguments have not played a substantial part in shaping Supreme Court rulings on free speech.
By mentioning freedom of speech alongside rights of assembly and petition the text of the First Amendment itself appears to emphasize the freedom's rule in safeguarding the interests of the possession and minorities. But relatively little reliance has been placed on this point, except in the development of the linked freedom of association.
The first amendment literally only applies to the laws of Congress, but it has never been seriously suggested that executive and police orders are immune from judicial review (Pentagon Papers Case). Even more crucially, since the decision in Gitlo v. New York in 1925, it has been excepted that freedom of speech and of the press are fundamental personal rights protected from invasion by the States (as well as by Congress and the federal government) under the Due Process Clause of the Fourteenth Amendment.
But the “State action” doctrine limits the scope of free speech protection. Under this doctrine constitutional rights in the United States are only guaranteed against invasion by government and public authorities. There includes the courts when they are called on to enforce statutes or common law rights, such as the right to reputation or privacy.
But they are not protected against the decision of private institutions and individuals. For example, the Supreme Court has held that freedom of speech was not violated by the refusal of a private broadcasting company to allow a political group advertising time to protect against conduct of the Vietnam War, (Columbia Broadcasting System v. Democratic National Committee 412 US 94, 1973), or by the decisions of owners of a shopping mall not to permit demonstrations on its property (Lloyd Corpn. v. Tanner 407 US 551, 1972).
The US Courts have departed from a literal or strict construction list approach to the intermediation of the First Amendment in one way. Of particular interest for comparative free speech jurisprudence, despite the frequent promptings of Black J., a member of the Supreme Court from 1937 to 1971, the Court has never taken literally the injunction “shall make no law...abridging the freedom of speech...”.
The absolutist position, advocated by Black and Gouglas JJ, is impossible to sustain. Courts are aware of the vital interest that may be threatened by unrestricted speech, as Holmes J. pointed out in the first Supreme Court case seriously to consider First Amendment principles. Absolutists can try to defend their corner by asserting that “abridging” does not cover all forms of regulation and that “the freedom of speech” is not the same as “speech” so that rightly understood the term does exclude restrictions on some modes of expression. But really the game is up, the poverty of literalism laid bare.
The United States Supreme Court, therefore, like other constitutional courts, balances free speech and other important rights and interests on the basis of principles it has developed over the last eighty years without guidance from the text of the constitution. Other interests, such as public order and decency, national security, the rights to reputation and a fair trial are weighed in the scales with free speech.
If these interest are found “compelling” or in some circumstances “substantial”, they may justify restriction on the exercise of speech rights, at least if the Government or other authority seeking to justify the limit shows that the restriction has been narrowly formulated, so that it does not restrict more speech than the compelling interest warrants. One form of balancing test is the famous “clear and present danger” formula, which has the outstanding merit of relative precision, at least in its abstract formulation. Under the current version of the test, speech may only be curtailed when it is directed to producing imminent lawless behaviour and is likely to produce it (Bandenburg v. Ohio 395 US 444, 1969). This balancing process need not be incompatible with a strong and adherence to the free speech principle, though there is an obvious risk that judges will treat the speech interest as just one factor to be considered in conjunction with others, and so give it less protection than it should enjoy in a liberal society committed to freedom of expression.
The Supreme Court has, therefore, formulated a number of principles designed to avoid this danger. One of them is the “clear and present danger” test referred to in the previous paragraph. It has been applied to safeguard insulting and inflammatory speech, unless the state case shows that as a result imminent disorder is likely to occur. The test has also been used in contempt of court cases; as a result, contempt proceedings which might well succeed in England and other common law jurisdictions would almost certainly fail first Amendment scrutiny.
Under another strong principle, courts in the USA must not grant a prior restraint unless the state can show that without such an order, it would suffer direct, immediate, and irreparable damage. The Court has also formulated a rule under which a public official or figure cannot succeed in a libel action unless he proves that the defamatory allegations were published with the knowledge that they were false (New York Times v. Sullivan 376 US 254, 1964). All these principles are designed to give speech more protection than it would enjoy if courts treated it and completing interests as factors of equal weight or importance in the balancing process. There is a strong presumption in favour of free speech.
The most important of the three principles states that content-based restrictions on speech should be subject to strict or heightened scrutiny. Under this test the state must show a compelling interest to justify the restriction. A further complication is that the court has sometimes upheld a content-based regulation, taking into account what it regards as the lower value of the speech in question. This development is particularly noticeable in cases concerned with the regulation of sexually explicit material.
Quite apart from reservation about the complexity of these tests two difficult questions should be asked: what is the distinction between a content-based and a content-neutral restriction, and does the distinction warrant the different levels of scrutiny? The clearest case of a content-based is one which prescribed the stating of a particular view or idea or the provision of particular information. It would obviously be contrary to the First Amendment for a law to prescribe the publication of any material abusive of Democrats or Catholics, allowing in effect the abuse of Republicans and Protestants.
It is less clear whether the hostility to content-based restriction applies to rules which prescribe or limit discussion of particular topics or subject matter, or which discriminate between different speakers, granting, say, facilities or tax advantages for some groups, but not others. The decisions of the Supreme Court of this point are inconsistent (Police Department Mosley 408 US 97, 1972).
These issues are, of course, closely connected to the second question: the reason for the special hostility content-based rules. It has been argued that this is unjustified, and that all restrictions which restrict speech without compelling reasons should be struck down. After all, a total ban on, say, all leafleting and canvassing on the streets would clearly have a more marked impact on political speech than, say, a more limited ban on the distribution of leaflets by political parties.
These points bring out and underlying aspect of United States free speech jurisprudence. Much of it is explicable in terms of a strong suspicion of government, and its motives for imposing restrictions on speech. The principles formulated by the Supreme Court also appear to reveal a distrust of lower states courts which can not be relied on, its seems to uphold freedom of speech when it is balanced against, say, the common law right to reputation or privacy or important public interests. That is while the Supreme Court has formulated a number of free speech rules and principles that must be followed by states courts. The best example of these courts is the contest of libel actions, where the court requires public official and figure claimants to prove with convincing clarity that the defamatory allegations were published with knowledge of their falsity. A clear rule or definitional balancing is preferred to ad hoc balancing on the basis of the particular facts of the case.
The strong suspicion of government interference with speech may have influenced US free speech jurisprudence in other ways. First, Courts are usually unsympathetic to measure which on one view promote free speech rights or values. The Supreme Court for instance, has invalidated a statutory right of reply to critical newspaper articles on the ground that it infringed press freedom (Miami Herald v. Tornillo 418 US 241, 1974).
A second consequence of the strong suspicion of government is that courts are unwilling to interfere with private censorship or control of speech for example, there are no First Amendment Access rights to demonstrate or distribute leaflets on private shopping malls. The point is simply that the First Amendment guarantees right against the state, not against media and other corporations which may be as anxious as government to limit the range of topics and views discussed in public.
The US approach to free speech issues differs considerably, as will be seen, from the jurisprudence in many other countries and jurisdictions. At the risk of considerable oversimplification, freedom of speech is more strongly protected against government regulation in the United States than it is, say, in Germany and under the European Convention on Human Rights (ECHR), which other systems, particularly France and Germany, are more willing to countenance restraints on the threats to pluralism from private interests. Courts in the United States distrust detailed, ad hoc balancing of free speech against other competing rights and interest, fearing that the former will inevitably be given too little weight in the scales.
A final point should be made. Free speech law in the United States is much more complex than it is in other counties. One reason for this complexity is that the Supreme Court has formulated a number of distinctive free speech doctrines and principles, some of which have been mentioned in this write-up. To some extent these doctrines represent an alternative detailed weighing of free speech and other interest which is characteristic in, for example, the courts of Canada and Germany and in the European Human Rights Courts.
But another reason is simply that the US courts have grappled with free speech issues for nearly a hundred years, while European Courts have for the most part only been engaged with them for the last forty or fifty years. Canada has developed serious free speech jurisprudence only since enactment of the Charter in 1982, while arguably the courts in England began this development when the Human Rights Act 1998 came into force.
There are a lot more American case laws to organize into coherent categories. It is no more surprising that free speech law in the United States is richer and more complex, than it is, say, that the law of torts or trusts is difficult in England and Australia.
The writer is District and Sessions Judge. This write-up was prepared on the basis of his experience on visiting USA Court at the invitation of the State Department.