Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

1794-Today

Naturalization Act: June 18, 1798
Alien Friends Act: June 25, 1798
Alien Enemy Act: July 6, 1798
Sedition Act: July 14, 1798

The Alien and Sedition Acts

In response to growing opposition to John Adams’s Federalist administration—particularly over its war with France—the Federalists who controlled congress passed a series of highly controversial laws designed to guard against foreign influence in American politics and domestic treason. One of these, the Sedition Act, authorized the federal government to punish “any persons” who “unlawfully combine or conspire” against the federal government and its laws or who “write, print, utter or publish … scandalous and malicious writing or writings against the government of the United States” intending to damage its reputation or incite resistance to its laws. The Sedition Act was thus an early test of the meaning of the freedom of speech and press provisions of the First Amendment.

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Kentucky Resolutions, November 16, 1798
Virginia Resolutions, December 24, 1798

Virginia and Kentucky Resolutions

In response to the Alien and Sedition Acts of 1798, the state legislatures of Kentucky and Virginia each adopted a series of resolutions, drafted by Thomas Jefferson and James Madison respectively, declaring those acts to be unconstitutional. Both the Kentucky and Virginia Resolutions appealed to the First Amendment of the Constitution to argue that the federal government had no right to abridge the freedom of speech or of the press. While this argument is often taken as expressing a more libertarian conception of freedom of speech than the common-law view articulated by Blackstone, the argument of the resolutions concerned more narrowly the question of whether the federal government had the power to regulate speech and press. Neither Madison nor Jefferson ever denied that individual state governments had such a power. The Kentucky and Virginia Resolutions were thus more about federalism than about freedom of expression as such. Nevertheless, these Resolutions, as well as Madison's defense and restatement of them a year later in his "Virginia Report," give the clearest expression of Madison's and Jefferson's understanding of the foundational importance of freedom of speech and its role in the Constitution.

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3 Johns. Cas. 337 (N.Y. 1804)
Alexander Hamilton, defense counsel

People v. Croswell (1804)

Despite their complaints over the Federalists' use of the Alien and Sedition Acts to prosecute the opposition, Republicans did not hesitate to prosecute Federalist opposition for libel at the state level once they won the presidency with the election of Thomas Jefferson in 1800. Croswell published a small paper called The Wasp, which aggressively criticized Thomas Jefferson and other Republican public officials. When he was a arrested and convicted on charges of libel and sedition by the State of New York, Croswell appealed to the Supreme Court of New York, where he was defended by Alexander Hamilton and James Kent. Though the judges were evenly split and the conviction stood, the case gave a high-profile occasional for Hamilton and Kent to make a case for permitting truth as a defense against libel charges.

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Free Speech and Slavery

As the country grew more divided over the question of slavery in the early 19th century and as the threat of secession by the slave states in the south loomed larger over the political landscape, efforts were made in both the south and the north to suppress the slavery issue. Within many southern states, there was radical regulation of the press preventing the dissemination of anti-slavery literature. Since at this time the Bill of Rights was understood to apply only to the federal government, there was no constitutional question about such measures. Much of the anti-slavery literature, however, was being introduced into slave states by abolitionists in the north through the federal postal system. In response, southern states required their post-masters to refuse to deliver anti-slavery literature. Many northern states tolerated these measures either out of support for slavery or out of fear of secession. Congress eventually supported the effort to quarantine the South from anti-slavery agitation with the Post Office Act of 1836, which permitted post-masters to respect local censorship laws. Though this was a federal law and therefore was subject to the First Amendment, it was never brought to the Supreme Court.

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Published 1859
John Stuart Mill, 1806-1873

John Stuart Mill: On Liberty

John Stuart Mill was an English philosopher best known for his book On Liberty, which advanced a libertarian teaching about freedom. A large part of On Liberty is devoted to freedom of speech in particular, and this part has shaped to a great extent contemporary views of the First Amendment. Its argument goes beyond the classical liberal case for freedom of speech, which is based primarily on a view of the radically limited jurisdiction of government, and puts forward a positive case for individuals to respect the expression of opinions they find offensive. Mill is thus largely responsible for the more expansive view of the duty to respect freedom of speech, which resists suppression of speech not only by government, but also by society and within private institutions. On Liberty also advances what has become known as the "harm principle," according to which the only justification for curtailing anyone's liberty is that it prevents harm to others.

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Espionage Act of 1917
Sedition Act of 1918

The Espionage and Sedition Acts

The Espionage Act of 1917 was a law passed by Congress after the United States entered World War I designed to protect the war effort from disloyal European immigrants. The Act criminalized the publication or distribution of "information" that could harm or hinder US armed forces as well as of "false reports or false statements" intended to promote America's enemies, and it empowered the Postmaster General to seize mail that it judged to fall within these categories. The Sedition Act of 1918 refers to a series of amendments to the Espionage Act that expanded the crimes defined in that law to include, among other things, any expression of disloyalty to or contempt of the US government or military.

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249 US 47 (1919)
Holmes Court

Schenck v. United States (1919)

Schenck v. United States was an important early test of the constitutionality of the Espionage Act of 1917. In a unanimous decision, the Supreme Court upheld the conviction under the Espionage Act of two leaders of Philadelphia's Socialist Party, who had distributed fliers urging their readers to resist the draft. Though the Court upheld the law, its opinion, delivered by Oliver Wendell Holmes, articulated a standard that would eventually serve to limit libel laws. Holmes offered what became known as the "clear and present danger" test, which classified unprotected speech narrowly to cases where it led immediately and unambiguously to criminal action.

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268 US 652 (1925)
Taft Court

Gitlow v. New York (1925)

Prior to the Fourteenth Amendment, the Bill of Rights applied only to the federal government, and did not restrict state legislatures. In Gitlow, the Supreme Court decided that the Fourteenth Amendment extended the freedom of speech and press provisions in the Bill of Rights to apply to the individual states. During the first Red Scare in the wake of World War I, Benjamin Gitlow was charged under New York's "Anarchy Law of 1902" for publishing a "Left Wing Manifesto" in a socialist newspaper. The court upheld Gitlow's conviction, with vigorous dissents from Justice Brandeis and Justice Holmes, but in doing so ruled that the case fell under federal authority.

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Alien Registration Act of 1940
54 Stat. 670; 18 U.S.C. § 2385

The Smith Act

The Alien Registration Act of 1940, commonly known as the "Smith Act" after Representative Howard Smith, its principal author, criminalized a broad range of activities subversive of the U.S. government. The Smith Act was enacted in response to growing fears of fascist and communist sedition, and originally targeted disruptive immigrant leaders of the growing labor movement. However, it would go on to serve in the Second World War as a version of the First World War's Espionage and Sedition Acts, suppressing anti-war agitation and foreign subversion of American war efforts. Later, during the Cold War and "McCarthyism," the Smith Act would be used to prosecute dozens of American communists for suspected subversion. It was in response to this string of convictions that the Supreme Court would finally begin to rule against the government in sedition cases, starting with Yates v. United States. Parts of the Smith Act remain in the U.S. criminal code.

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Freedom of Speech on Campus

Since the late 1980s, colleges and universities around America have come under attack for what has frequently been termed "political correctness." Administrators, students, and even faculty are accused of imposing restrictions on speech in their schools by both formal and informal means for the sake of advancing liberal political goals. Such restrictions originally took the form of "speech codes," which were typically part of harassment policies in schools' codes of conduct that instituted penalties for vaguely defined forms of expression that were disparaging of certain identity groups. More recently, schools have been criticized for disinviting speakers under pressure from political student groups and for permitting students to disrupt events with invited speakers. Attention has also been brought to a recent trend in the use of "trigger warnings," which are meant to warn students that they will hear something that might traumatize them, and "safe spaces," which are zones in which students are guaranteed to be safe from offense. In public universities, these practices have raised constitutional questions, and speech codes, at least, have been consistently struck down by courts. In private schools these practices nevertheless raise questions about the role of freedom of speech in higher education.

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September 11, 2012

Benghazi and “The Innocence of Muslims”

An attack on the U.S. embassy in Libya that was initially attributed to outrage over an American-made video criticizing Islam raised questions about the relationship between the American commitment to freedom of speech and its international diplomacy and about the obligations of private American companies to freedom of speech abroad. In early September, 2012, an American citizen uploaded a privately funded short film called "The Innocence of Muslims" to youtube with Arabic subtitles. On September 11, shortly after its publication, protests erupted in response in Egypt and quickly spread to a number of other Muslim countries. During these protests a group of militant Libyans attacked the American embassy in Benghazi, killing five Americans including the ambassador. Two days later, Secretary of State Hillary Clinton blamed the video and publicly condemned it, but also insisted that it was no justification for the violence. President Obama subsequently asked google to take it off of Youtube, but Google determined it did not violate Google's terms of service and left it up. In a speech before the United Nations General Assembly, Obama echoed Clinton's condemnation of the video and tried to explain to the international community the reasons why he did not force Google to remove it from Youtube. An investigation concluded later that the attack was not a spontaneous act connected with the protests over the "Innocence of Muslims" video, but was a previously-orchestrated terror attack. The initial sequence of events nevertheless have continued to spur debates over how America should present its First Amendment commitments to a world that does not wholly share these commitments. Although Youtube did not remove the video, it voluntarily blocked access to it in Libya and Egypt where the protests were most intense. The governments of several other Muslim countries banned Youtube when it did not take the video down.

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Chelsea Manning Army Leak, 2009-10
Edward Snowden NSA Leak, June 2013

Government Leaks

In the past decade, several controversial cases have emerged involving government leaks. Late in 2009, Chelsea Manning (at that time called by his birth name, Brad), a U.S. Army Intelligence Analyst in Iraq began transferring to WikiLeaks what would eventually amount to 750,000 government documents. In 2013, Edward Snowden, an American IT professional, gave journalists thousands of classified documents that he had taken from the NSA while doing contract work for them. Manning and Snowden were both charged under the Espionage Act of 1917, among other charges. While Manning served part of a prison sentence for her leak, Snowden fled America before disclosing his stolen documents and has since then received asylum in Russia. Snowden's and Manning's efforts to bring government secrets to light have been alternately lauded and condemned, revealing deep differences in our perception of the legitimacy of government secrecy and the rights and duties of government agents. More recently, the Trump administration has been plagued by leaks and has increased its efforts to investigate and prosecute them.

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Murder of Theo Van Gogh, November 2, 2004
Charlie Hebdo Attack, January 7, 2015
Curtis Culwell Center Attack, May 3, 2015

Islamic Extremism and Freedom of Speech

The principle of freedom of speech has come into intense and sometimes violent conflict with radical Islam in parts of the world, which considers blasphemy against its religion and its prophet Mohammed a punishable offense. While this can have profound implications for international relations and national security, it also poses a danger for individuals who offend Islam. When Salmon Rushdie published his novel The Satanic Verses in 1988, the Supreme Leader of Iran Ayatollah Khomeini issued a "fatwa," an Islamic legal opinion, calling for Rushdie's death for blasphemy. Rushdie was forced to live in hiding and under police protection for years afterwards, and several other people involved in the book's publication were shot and stabbed. In 2004, filmmaker Theo Van Gogh was shot to death for his short film Submission about the mistreatment of women in certain Islamic societies. In 2011, Charlie Hebdo, a satirical French magazine that had published controversial cartoons depicting Mohammed, was firebombed after it published an issue with Mohammed on the cover. In 2015, two Islamist gunmen forced their way into the magazines's headquarters, killed twelve of their staff, and wounded eleven. Four months later, gunmen attacked the Curtis Culwell Center in Garland, Texas, when it exhibited art depicting Mohammed and hosted a contest for Mohammed cartoons.

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