Free Speech

In a monograph on public relations law, Frank Walsh (1988) wrote,

The basis of the protection is the First Amendment to the Constitution, which reads, in part, “Congress shall make no law … abridging the freedom of speech, or of the press.” In addition to the federal constitution, freedom of speech is also protected by state constitutions, statutes, and the common law.

Although the First Amendment is phrased in absolute terms, it has never been applied as an absolute principle. For example, national security issues, fighting words, and legally obscene materials have been viewed as outside First Amendment protection. Areas that impact public relations, such as defamation, copyright protection, and privacy issues, set up conflicts between free speech rights and other protected values.

A number of commentators and textbooks have adopted the justifications for the choice enunciated by Thomas Emerson. According to Emerson (1970), there are four justifications for guaranteeing free speech. First, “freedom of expression is essential as a means of assuring individual self-fulfillment.” Second, “freedom of expression is an essential process for advancing knowledge and discovering truth.” Third, “freedom of expression is essential to provide for participation in decision making by all members of society.” Fourth, “freedom of expression is a method of achieving a more adaptable and [Page 366]hence a more stable community” (pp. 6–9). Thus free speech is justified both as an individual good and as a good for society—both as an ends and a means. All four justifications find expression in various Supreme Court decisions.

Although Emerson focused his analysis primarily on the American experience and Supreme Court decisions, the justification of freedom of expression has a long philosophical history, dating back at least to the arguments in John Milton's Areopagitica (1644) and advanced in John Stuart Mill's On Liberty (1859). Although both Milton and Mill make a number of detailed arguments against censorship in favor of free speech, they can be reduced to two main arguments. The first is that the way to combat speech that is harmful is not to censor it but to counter with more speech. Censorship is never effective, leads to loss of mental toughness, and promotes conformity. More speech leads to public discussion, a greater possibility of resolving issues, and a greater chance that truth will emerge. The second argument is based on the idea of individual competence and responsibility. The basis of the arguments is that individuals are the best judges of what is in their best interest and that they are responsible enough, if persuaded or outvoted, to set that individual interest aside in favor of the common good.

But what does a guarantee of free speech mean? One of the first cases dealing with the issue was Near v. Minnesota, 283 U.S. 697 (1931). Chief Justice Hughes (1931), writing for the majority, referenced William Blackstone's (the 18th-century English judicial scholar)

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