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Freedom of speech in the United States is protected by the First Amendment to the United States Constitution. Criticism of the government and advocation of unpopular ideas that most people would find distateful or against public policy, such as racism and flag burning, are allowed. There are exceptions to the general protection of speech, however, including the Miller test for obscenity, child pornography laws and regulation of commercial speech, such as advertising. Other limitations or regulations include copyright, fighting words, campaign finance laws, advocation of imminent violence against particular persons, slander and some content-neutral laws that affect speech. However, in some respects, the United States has a more liberal approach to freedom of speech than most Western countries; for instance, there is no requirement (as is the case in many European Union member states) that there be a "reason" for expressing an idea.

Historical background

England

During colonial times, English speech regulations were rather restrictive. An English seditious libel law made criticizing the government a crime. According to the English Court of the Star Chamber, the King was above public criticism and statements critical of the government were forbidden. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of seditious libel, "f people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the seditious libel law was not a defense.

Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license.

Colonies

The colonies originally had different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed. Professor Levy said that each community "tended to be a tight little island clutching its own respective orthodoxy and . . . eager to banish or extralegally punish unwelcome dissidents."

The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words."

The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

The First Amendment

In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government. During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.

The First Amendment was ratified on December 15, 1791. The Amendment states:

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.

The Alien and Sedition Acts

In 1798, Congress, which contained several of the drafters and ratifiers of the Bill of Rights at the time, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute; or to excite against them . . . hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States."

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act, however, made ascertainment of the intent of the framers in regard to the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act was repealed and the Supreme Court never ruled on its constitutionality.

In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).

Censorship

Main article: Censorship in the United States

While personal freedom of speech is usually respected, freedom of press and mass publishing encounter some restrictions. Some of the recent issues include:

• United States military censoring blogs written by military personnel.
• Journalist Judith Miller imprisoned in 2005.
• The Federal Communications Commission censoring television and radio, citing obscenity, e.g., Howard Stern.
• Scientology supressing criticism, citing freedom of religion, e.g., Keith Henson.
• Democratic Senators threats to revoke ABC station licenses in response to "a screenplay accurately depicting Bill Clinton's record on terrorism."

As of 2005, United States was ranked 44th of 167 countries in annual Worldwide Press Freedom Index by Reporters Without Borders.

External links

• A Time for Censorship, a Time for Freedom - Americans' freedom of speech within the internet and how it is being put in jeopardy.
• First Amendment Library entry on Freedom of Expression (links to all of the Supreme Court's free expression cases)
• Congressional Research Service (CRS) Reports regarding Freedom of Speech

• First Amendment to the U.S. Constitution
• United States law