Communication is essential in any healthy relationship, including the one between citizens and their government. Democracy relies on communication to attend the needs of a free society. It is through communication that we express our points of views and opinions on matters that affect or interest us. The freedom of expression, as protected by the First Amendment of the Bill of Rights, is a fundamental right that represents that indispensable condition for any other form of freedom to exist.
Throughout history the First Amendment has been taken to courts, in its battle to gain a much-needed preferred position among the other rights. In earlier times, people exercising their right to speak their minds were censored, banned, and often jailed. In more recent years, this right has been fervently protected by the Courts making the United States a beacon of protection for freedom of expression.
It wasn’t always like this. Years after the Constitution had been put in place, the US government attempted to restrict free expression by enacting the Sedition Act of 1798, which prohibited the publication of malicious newspaper stories about the president or other officials. Although the legislation was later considered an infraction during Jefferson’s presidency, the position of the Supreme Court on cases related to free expression remained undisputed until 1919, when the Court ruled that speech could only be restricted if it jeopardized the nation’s security.
The original document of the First Amendment to the Constitution mandates that “Congress shall make no law…abridging the freedom of speech”. However, several court rulings have expanded the scope of ‘speech’ beyond the mere interpretation of verbal communication. Expressing one’s ideas can be done in many ways including a silent manifestation, displaying the American flag on a car, or burning a book. Everything that we do in order to communicate our opinions is considered a form of expression.
Author Henry Sayre alludes to the 1989 controversial installation by artist Scott Tyler, What Is The Proper Way to Display the American Flag? to make a reference to the freedom of speech. The installation consisted of an American flag displayed on the floor beneath photographs of flag-draped coffins and South Koreans burning the flag. Between the flag and the pictures, there was a ledger in which viewers were able to record their impressions on the exhibition. Besides of the fact that the flag was on the floor, which many found offensive, the problem arose when people tried to write on the ledger without stepping on the flag. The flag had become a barrier to the freedom of expression it was meant to defend (20).
The freedom to report on specific issues has been strongly supported by the judiciary system. The “Pentagon papers”, publication made by the Times in 1971, marked a historic decision on what can or cannot be blocked by the government. Even though the documents had been illegally obtained by activists, the Court ruled that the government could not prohibit a speech or publication before it was made public, unless there was a clear justification for it. Author Namita Naik from the Human Rights Education Association indicates that banning the media from imparting information to the public can signify a threat to democracy.
National security has become a concern after the tragic events of 9/11. According to Thomas Patterson, for the past decades, “Americans’ rights of free expression have been defined largely in the context of national security concerns” (117). Although some information ought to be kept secret, government officials must make evident that national security is at risk before they can prohibit citizens from speaking out or assembling.
Like any other right, freedom of expression is not absolute. Patterson indicates that it does not entitle people to say or do whatever they want, nor constitutes a legal ‘backup’ to avoid responsibility for the consequences of our acts (123). Afirming that something is true, when in fact isn’t, constitutes defamation. Court rulings have established that if false allegations -whether written (libel) or spoken (slander)- produce great harm to a person’s reputation, charges may be presented against the person who initiated the allegation. Some organizations and individuals refrain many times from reporting openly on certain issues when there is a high probability of being consequently sued. For the news media, libel may often represent the limit to their ability to criticize public officials. Nevertheless, if the publication ends up being true, regardless of the harmful repercussion such publication may have on someone’s reputation, the news organization is usually protected against a libel judgement.
Obscenity is a form of expression that is also not protected by the First Amendment, and the Courts have had particular trouble trying to draw the line between the materials that may be considered obscene and the ones that may not. For example, material that is used in the privacy of a home cannot be considered illegal, with the exception of child pornography. A writer for the American Civil Liberties Union states that “Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce’s classic Ulysses to the photographs of Robert Mapplethorpe”. And he is probably right. Since the first artist picked up a brush, this particular form of expression has walked the fine line that separates what’s considered constitutional from what is not. In several rulings, the Court considered the ‘contemporary community standards’ (the perspective of an average person) to decide whether an activity or object is obscene; however, this has been and still is a dilemma especially when community values change over time.
Some other forms of expression that the Framers have not intended to protect are the ones that people may use with the solely intention of causing harm to others. Words or speeches that incite to violent acts may constitute a crime. Patterson points out that in the Vietnam era, all of the activists arrested by the police were found guilty on the grounds of inciting riots, and not a single person was convicted for speaking out against the government’s actions (118). Even though not every form of expression may be protected by the First Amendment, the government cannot prohibit the expression of an idea simply because society finds it offensive.
As defined by the Ancient Greeks and expressed by Abraham Lincoln, democracy is a form of government ruled by the people, and freedom of speech is the means by which the people are guaranteed participation in such democracy. Freedom of speech is considered a basic democratic right through which citizens of a free society can make well-informed decisions. It does not only include the right to express one’s points of views, but also the right to know. If the government had the power to control absolutely everything people say and know, it could also manipulate their opinions and therefore deprive them of their right to decide for themselves. Having criticisms in the public arena where mistakes can be corrected and questions can be answered should be in the government’s best interest.
The fundamental and legal nature of the rights of freedom of expression and information have been recognized by several international bodies including the United Nations. Even before any treaties or human rights had been adopted, the UN Assembly General adopted resolution 59(1) in 1946 which established that “freedom of information is a fundamental human right”. According to a report prepared by Toby Mendel, freedom of information was considered part of the basic right of freedom of expression which, as stated on article 19 of the Universal Declaration of Human Rights (UDHR), also includes the right to seek, receive, and impart information and ideas through any media regardless of frontiers (2).
It is clear that having the right to express and share our opinions freely -in whichever form we choose to do so- without being censored constitutes the basis for us to fully exercise our other rights. Without this vital right elections would have no meaning, and no political action, resistance to injustice and oppression would be possible. As freedom of speech serves many functions in different levels of society, it also involves toleration of matters that may make no sense to the majority of people. But in the words of philosopher John Stuart Mill, “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it might be considered”. This teaching shows us that in order for us to arrive to a well-informed decision on any issue, we must consider all facts and ideas from all sources -including the opposing ones- and mirror them against our own. Freedom of expression must be protected not only because it allows each and one of us to realize and develop our full human potential, but also because it holds the key to feed our knowledge, educate our thinking, and avoid ignorance from being the cause of our mistakes.
References
“Freedom of Expression.” ACLU. 10 Oct 2005. American Civil Liberties Union. 19 Feb 2008 .
Mendel, Toby. “Freedom of Information: A Comparative Legal Survey.” UNESCO. 2003. Unesco. 18 Feb 2008 .
Naik, Asmita. “Freedom of Expression.” HREA.org. 2003. Human Rights Education Association. 18 Feb 2008 .
“Obscenity – Cross-References.” American Law Encyclopedia Vol 7. n.d.. Law Library – American Law and Legal Information. 19 Feb 2008 .
Patterson, Thomas E.. We the People. 6th Ed. New York: McGraw-Hill, 2006.
Sayre, Henry M.. A World of Art. 4th Ed. New Jersey: Pearson, 2004.
Van Camp, Julie C.. “Freedom of Expression: The First Amendment.” Freedom of Expression at the National Endowment for the Arts. July 4, 2005. California State University, Long Beach. 18 Feb 2008 .
van Mill, Dan. “Freedom of Speech.” Stanford Encyclopedia of Philosophy. 2002. 19 Feb 2008 .