Free Speech Activism

The term free speech activism refers to attempts by individuals or groups to expand the scope of acceptable expression. Over the years, two broad functions have been proffered to support a policy and practice of increasingly unencumbered expression: Freedom of speech facilitates the exercise and maintenance of political rights, and it allows individuals to conceptualize and create their lives free of unnecessary, external intrusions. Whether literal or symbolic, expression [Page 589]can be expanded (or restricted) by modifying either explicit legal regulations or notions of social propriety. The wide variance throughout much of U.S. history, in terms of both the definitions of speech and the rules governing it, reflects the dynamism of American society more generally. While today in the United States the principle of free expression elicits near-universal approbation, such was not always the case. To the contrary, free speech became a bedrock principle of American life through a complex historical process marked by gradual shifts in social forces and changes to legal institutions and concepts.

In the prerevolutionary colonies, speech was regulated and enforced by local custom and code. Improper speech fell into one of two categories, both of which had migrated with the colonists from their native England. The first category was dissident religious expression deemed blasphemous by regional governors. Such sacrilegious expression was outlawed and carried punishments that varied depending on location and period. To avoid moral opprobrium or physical danger, religious dissidents were often compelled to relocate. The second category of prerevolutionary proscribed speech was seditious libel, which criminalized speech that criticized the government. Seditious-libel laws did not distinguish between truthful and untruthful speech, and required prepublication approval from the government. The 1735 trial of John Peter Zenger, however, marked a gradual departure from traditional enforcement of such laws. Charged with impugning the government's integrity, Zenger was defended by Andrew Hamilton, who persuaded the jury that Zenger's criticism was substantially true and therefore should not be punished. The jury acquitted Zenger, and a new standard in seditious-libel cases, which barred prior restraints on truthful speech, was introduced. This standard, though, was applied unevenly for several decades.

With the American Revolution came a dramatic reconfiguration and standardization of law, including the legal regulation of speech. Expressive, religious, and associative freedoms occupied particularly prominent positions in the newly created American form of republican government. Through open inquiry and debate, the architects of the Bill of Rights argued that the affairs of the state could be appraised, and governmental abuses and excesses could be checked. Nonetheless, since it was codified in the First Amendment (1791), the legally sanctioned right to freedom of speech has been disproportionately extended to different people at different times. While the text of the amendment is absolute—“Congress shall make no law … abridging the freedom of speech, or of the press…”—its precise scope and meaning have been sharply contested.

Fewer than 10 years after ratification of the Bill of Rights, Congress enacted the Sedition Act of 1798. Leveraged as a political tool by President John Adams to quell dissent against his Federalist Party, the act prohibited various forms of political speech that were previously protected. The act proscribed, for example, the expression of contempt for congressmen or the president. Upon election to the presidency in 1800, Thomas Jefferson pardoned those prosecuted under the Sedition Act, which expired a year later, before the Supreme Court could rule on its constitutionality. Facing trenchant criticism for the abuses perpetrated under the Sedition Act, Congress did not enact another federal statutory prohibition on speech for more than a century.

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