First Amendment

The text of the First Amendment to the U.S. constitution on freedom of expression states: “Congress shall make no law … abridging the freedom of speech, or of the press.” Given that the First Amendment only outlines the broad contours of legal protection, American free speech jurisprudence derives more from the gloss provided by the U.S. Supreme Court than from the constitutional text. The judicial interpretations of the First Amendment center on whether the government violates freedom of expression as an individual right. Hence, private infringements on free speech do not raise constitutional issues.

The intrinsic and utilitarian values of freedom of speech and the press inform the Supreme Court in formulating various First Amendment doctrines and tests. The most famous theory of freedom of expression is the “marketplace of ideas” concept. It posits the notion that ideas should be allowed to compete against one another in an open process of human interaction in search of truth. Meanwhile, self-governance theory is based on a premise that freedom of speech is essential to a democracy. It has been influential to the judicial interpretation of the First Amendment on Americans'right to talk politics. The individual autonomy theory holds that the right to freedom of expression that people each—in the development of their own personalities—have the right to form their own beliefs and opinions and to express these beliefs and opinions.

American courts have developed several substantive standards for freedom of expression. The two-level approach—free versus unfree speech—is a good example. The categorical approach to free speech law has identified unprotected speech such as libel, obscenity, and “fighting words.” The content-based classification of speech balances certain social interests with their competing individual interest in free expression.

The speech versus action dichotomy has been another way the Supreme Court demarcates on First Amendment rights. It protects pure speech but allows restriction of expressive conduct, also known as symbolic speech or “speech-plus,” such as burning draft cards.

The hierarchy of freedom of protected speech has been established. For example, political speech is more highly valued than any other expression, and it requires a compelling interest to justify a government regulation. Less protected are commercial speech and sexual expression which is not necessarily obscene. Their First Amendment standards are met by a substantial or significant governmental interest.

Notwithstanding the judicial line-drawing on free and unfree speech, the First Amendment is generally averse to content discrimination. There is the strongest of presumptions against viewpoint-based restrictions, [Page 245]and they almost never survive a constitutional scrutiny. By contrast, content-neutral restrictions are more easily accepted.

The judicial distinction between prior restraint and subsequent punishment is derived from the differing impacts of the two on freedom of expression. Prior restraint creates a “freezing effect” on free speech, while subsequent punishment brings about a “chilling effect.” The Supreme Court has erected so high a hurdle against prior restraints that the government rarely succeeds in using them as an effective weapon. However, the protection of press freedom against prior restraint is not absolute. Prior restraints can be imposed against national security–related information, obscene publications, or incitement to violence and the forcible overthrow of the government.

...