Sahith Mocharla
Edited by Mac Kang, Colin Crawford, and Vedanth Ramabhadran
What is one allowed to say? It is a seemingly simple yet fundamental question; after all, every single interaction, becomes subject to scrutiny when one decides to determine what can or cannot be said. ‘Allowance’ in the general sense is codified through governments – the socially agreed arbiters of justice – who bound what can be said through the concept of ‘free speech.’
Free speech traces back to Athenian democracies over 2500 years ago and is described in two concepts: isegoria (equality of speech) and parrhesia (uninhibited speech).[1] In ancient Athens, this meant being able to criticize the constitution of Athens while praising the constitution of Sparta. In the modern world, this kind of freedom still exists; one can criticize America and praise Russia. Despite the thousands of years spanning Plato and Aristotle to Twitter and Trump, the litmus test of free speech remains much the same as it is today – can one openly criticize the political system and leadership under which one lives?
In modern-day America, free speech is primarily outlined by the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”[2] Nevertheless, there are laws in place that regulate it. Notably, one cannot yell “Fire!” in a crowded theater, as it would cause harm to those around them.[3] However, beyond the constitution, free speech has coalesced through multiple principles, defined by both social norms and court precedents, to shape our contemporary interpretation.
Free speech is protected not only through governmental prohibition, but also through the principle of content neutrality, wherein even speech that can be considered controversial cannot be restricted on the basis of the speech itself. Another significant practice is prior restraint, which prevents the government from preemptively restricting speech. This functions alongside the freedom of the press to empower the media to ‘speak’ their mind. The final principle of free speech is closely linked to the freedom of assembly – people being allowed to gather and organize without restriction – a right that is integral to the ability to protest.
The establishment of free speech has largely followed these principles – with legislative changes – for the past 250 years, but where should the line be drawn for where speech can go? Numerous attempts have been made to demarcate this boundary, however, the first instance of government limiting speech was the Sedition Act of 1798, which sought to limit speech – in the form of any false, scandalous, and malicious writing – against the government; although later pardoning all persons convicted under the act.[4] The first prominent case examining the application of free speech is Patterson v. Colorado. The Supreme Court ruled that “what constitutes contempt, as well as the time during which it may be committed, is a matter of local law.” The Court didn’t determine whether or not First Amendment guarantees are applicable to the state via the 14th Amendment, only holding that the guarantees of free speech and free press only guard against prior restraint (preventing something from being published or said) and do not prevent retributive action through “subsequent punishment.”[5] In 1910, Congress passed the Espionage Act, which criminalized acts that intended to insurrect insubordination against the United States. In response, the forerunner for the contemporary American Civil Liberties Union, the Civil Liberties Bureau, was formed. The second prominent case that shaped free speech was Schenck v. United States in 1919. Justice Oliver Wendell Holmes established the clear and present danger test, which evaluated “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent.”[6] Schenck’s “clear and present danger test,” the precedent still utilized today for what constitutes the limit for free speech, remained the standard of free speech doctrine for 50 years until it was overturned by Brandenburg v. Ohio in 1969. Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was convicted under an Ohio criminal syndicalism law that prohibited advocating for “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”[7] The Court’s decision in this case shifted the barometer for free speech from the “clear-and-present-danger” to a two-pronged test: first, speech could be prohibited if it aimed to incite lawless action or second, if it was likely to provoke or produce such an action. Brandenburg remains the de jure (established and practiced) standard for evaluating freedom of speech.
After centuries of deliberation, and extensive judicial review, the concept of free speech had finally arrived at a conclusion; the remaining question, however, is how are people allowed to criticize, protest, and challenge their government while still maintaining their legal and constitutional rights as citizens? From its usage in suffrage movements to legislative protest, freedom of speech and its subsequent exercise is fundamental to a democratic way of life.[8]
Over the past 100 years, while free speech protections have evolved in response to the changing norms of American society, they have ultimately coalesced with the prevailing time. However, in the advent of individual empowerment, proliferating social media, and an increasingly globalized world, free speech has become increasingly scrutinized and misunderstood in its application.
Digital behemoths, such as Facebook, Twitter, and Google, have emerged as the pseudo-gatekeepers of free expression. This shift has left democracy and the freedom of the press in a precarious position. Simultaneously, technology and its interconnected nature have presented legal scholars with some of the most pressing questions to date regarding its application. As Geoffrey Stone notes in What is the role of free speech in a democratic society, “While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news.”[9] These new developments raise fundamental questions of “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”9 In light of these developments, the vitality of the first amendment comes to depend on two critical factors: a continued understanding that free speech is important in democratic society, and an understanding that the responsibility of protecting it extends beyond the sole jurisdiction of the judicial branch.
Under the standard established by Brandenburg, free speech has been tested numerous times. Contemporary examples include the 2020 election of Joe Biden and subsequent calls to overturn the results; public outcry for the Russia-Ukraine conflict, and most recently, the suppression of advocacy in the Israel-Hamas conflict – a particularly critical resolution on free speech. Despite a conflicted American public over whether or not to provide national support and the government's militaristic alliance with Israel; critics of Israeli policy are finding it increasingly difficult to speak their minds, especially as many attribute Israel’s blockades and attacks on Palestinian hospitals as a necessary, tragic cost of war. An example is the cancellation of Jewish American writer Nathan Thrall’s speaking events about his new book that surmised Israel’s occupation of the West Bank. Furthermore, Florida banned pro-Palestinian student groups from public university campuses in late October. But regardless of political persuasions or stance on the Israel-Hamas conflict, these suppressions of free expression and free speech are alarming to many leading scholars. For students and citizens alike, the fundamental right of free expression is being systematically suppressed as colleges around the country subdue pro-Palestine student protests. on behalf of Palestine systematically suppressed. This nationwide shutdown triggered a response from the American Civil Liberties Association (ACLU), who published an open source letter highlighting the importance of free speech and urging universities “to reject calls to investigate, disband, or penalize student groups on the basis of their exercise of free speech rights.”10 While the ACLU letter contends that “schools have a responsibility to address discrimination and harassment wherever it occurs,” our country’s experiences during the McCarthy era demonstrate the effect of ideological suppression: a destruction of the foundations of academic communities and discourse.[10] The increasing global tensions created by the Israel-Hamas conflict demonstrate once again the importance of free speech and the crucial role that free speech plays in our society.
Tinker v. Des Moines in 1968 is a particularly germane case to the importance of free speech as it directly addresses the impacts of student expression in the United States.[11] A group of students in Des Moines Independent School District planned to wear black armbands in protest of the Vietnam War. Upon discovering the plan, the school suspended the students, who followed this ruling with a lawsuit claiming a violation of their right to free speech. The Supreme Court – ruling in favor of the students – held that the armbands represented pure speech, separate from the actions or conduct of those participating in it. Furthermore, the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the school.[12]
In this sense then, aren’t the students doing what's right? However, regardless of the content or “correctness” of students’ protests , the very act of protest is American in nature. Yet, paradoxically, under the guise of democracy, their actions – protesting – repeatedly faced suppression, whilst the students themselves dealt with reduced job opportunities, and ostracization.[13] The often harmful effects of protesting and the idea of regulated protest reflects the oxymoronic concept of legalized protest – protest that is against a system, but must be given permission from the system itself. This concept of regulated protest challenges the nature of civility – politeness and respect – and reintroduces concepts of false civility – a veneer of speech wherein the words spoken rather than the message sent tend to resonate, contributing to the disregard of civility in conversation. Far too often, news stations, media coverage, and politicians devolve into hardline political stances and superficial niceties, rarely inviting critique or meaningful discourse, rather drawing battle lines and black-white areas wherein any disagreements become moral depravities rather than a nuanced critique. Under this framing American free speech has teetered as discourse itself becomes tenuous.[14] Another relevant case, Terminiello v. Chicago, limits the scope of the “fighting words” doctrine – established by Chaplinsky v New Hampshire (1942) as words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace – through a majority opinion by Justice William Douglas establishing the function of free speech to invite disputes, serving its highest purpose when it induces conditions of unrest and creates dissatisfaction.[15]
This devolution of discourse stems, partly, from the escalation in ‘mere civility’ “the virtue of being able to disagree fundamentally with others while still holding onto a common life. Being civil means speaking your mind, but to your opponent's face, not behind their back. Being merely civil means not pulling our punches, but at the same time, it means maybe not landing all those punches all at once.”[15] As Dr. Bejan assays, the point of mere civility is to facilitate disagreement, however, not without denying the possibility of a coexistence with those who stand in our opposition today. The American commonplace fundamentally lacks this style of discourse. With mere civility, protest can increase its effectiveness, rather than merely redrawing battle lines. Currently, repressive consequences of ‘free’ speech asks protestors to potentially give up their future in exchange for speaking their minds – undermining the concepts of civil disobedience promoted by proponents of democracy. Observing American civil disobedience through the lens of someone such as Martin Luther King Jr. indicates an understanding of challenging the system, his views were what they were and they were stifled for their content but what was once celebrated has now become pariahcal.
Using the doctrine of free speech to uphold protest thus functions on two levels: internal and external. Protests internal to the system, e.g. those that are regulated, are empowered by principles of free speech. However, governments, which have the power and duty to prohibit hateful and inciteful speech (Brandenburg precedent), oftentimes extend this power to silencing dissent and expression, leaving internalized protests impotent. In contrast, Henry David Thoreau’s treatise on civil disobedience espouses the importance of social conscience over the protection of laws, implying the duty of the citizen to uphold the spirit of society (ergo democracy) even at the expense of legislative holdings, yet in issues of free speech this issue is seldom at hand – the legal principles and edicts are on the side of free speech – however time after time protestors are restricted, speakers banished, and opinions haltered at the whim and mercy of government and entrenched actors. This concept of civil disobedience alongside the principle of free speech doctrine is what empowered civil rights in America – and around the world – a critical role for free speech in contemporary society. Despite facing resistance from governments – especially those who don’t follow their own principles – civil disobedience becomes the duty of the citizen to uphold principles of free speech despite opposition. Yet this intertwined advocacy is inherently paradoxical – free speech and free speech doctrine limit and oftentimes obstruct civil disobedience – yet this very obstruction is what empowers its effectiveness.
Although civil disobedience and protest writ large have played critical roles in the development of American democracy, their existence is undermined by our current interpretation of free speech, as they are not encompassed by the premise of the Brandenburg standard. So, why is upholding Brandenburg so important?[16] In order for protest to be effective, it must first oppose an institution. Civil disobedience is illegal as it is a statement or declaration that challenges the public to recognize and consider ideas that are contrary to the status quo. For protests to be powerful and meaningful, they must challenge something valuable – whether that's an institution or accepted tradition – or else they hold no sway over the social tide. People who engage in civil disobedience operate at the boundary of compliance to law, while generally respecting their regime, and remain willing to accept the legal consequences of their actions – evidence of their respect to the rule of law. Civil disobedience therefore falls between legal protest and more extreme forms of protest like conscientious refusal, uncivil disobedience, militant protest, organized forcible resistance, and revolutionary action.[17] Without Brandenburg being upheld, the idea of conscientious refusal – knowingly and meaningfully defying a law – becomes meaningless. Effective protest challenges what may be widely held in order to uphold what has been undervalued or forgotten.
However, despite the power of protest in opposition to the system – civil disobedience – regulated protest remains crucial to maintaining democracy. In Snyder v. Phelps, Chief Justice John Roberts affirmed the importance of protest in the First Amendment: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain … we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”[18] It is this power of protest that is protected in America, and it is what must remain protected in order to preserve democracy. Over the last couple centuries, America has attempted to determine the briteline for free speech: yet it only legislated the effects of words, understanding that criminalizing hate speech is a dangerous precedent to set. Freedom of opinion and expression are the foundation of human rights and pillars of free and democratic societies, facilitating other fundamental rights such as peaceful assembly,participation in public affairs, and freedom of religion. Therefore, legislative efforts to regulate hate speech unsurprisingly raise concerns about potentially silencing constructive dissent and opposition.[19] Movements and protests help advance social consciousness, yet what truly solidifies their principles is education – specifically, the education deemed appropriate for the next generation to learn. From an institutional perspective, the education a government allows – whether in protest or in practice – indicates the health of a democracy. The existence and proliferation of content antithetical to the controlling party’s interest can be used to measure the extent of effective freedom through freedom of expression; when educational positions and literary content are effectively censored, the concept of ‘free’ expression becomes farcical. A tolerance of dissent not only marks the ability to challenge and hold governments (and other powerful actors) accountable and the willingness to respect minority views, it encourages debate and deliberation in society in ways that drive positive social change and development.[20] By embracing freedom of expression and increased discourse of institutional ideas, societies permit greater freedoms, stronger unions and encourage further unique perspectives; freedom provokes greater understanding of different views and lifestyles and reduces harmful attitudes and prejudice from becoming entrenched.[21] Conversely, Florida is currently pushing the boundaries of what constitutes ‘free’ speech, with bills like HB 999 and SB 266. The adoption of these bills enforces both prohibited speech and compelled speech through the requirement of history to be taught in a particular way. Professors must assign texts from the Western canon – an emphasis on christian teachings and historical tradition.[22] Alongside Florida's avid book ban initiatives, Governor De Santis has challenged traditional free speech believers, redefining its annals for the purpose of political agenda; book bans undermine free speech by targeting a medium of expression and depriving students the right to receive information and ideas. Although America nominally promotes democracy in foreign states which begin to limit the expression of ideas – such as the exemplar for the French Revolutionaries or an arms dealer in South American regimes, the country appears to overlook these actions when they happen on American soil.
Protest is crucial to the progress of America – yet for protest to be powerful, it must be supported by its greatest weapon, free speech. This applies to both external protest that challenges free speech and internal protest that harnesses the power of free speech. Free speech must remain at the forefront of any movement in order for ideas to progress, thoughts to be expressed, energy to be facilitated, and political platforms to be utilized. Brandenburg remains the single best tool for the advocacy of free speech. For a government to uphold the values of democracy, it must bear the burdens of dissenting opinion, rhetorical opinions, or scathing criticism.
The protection of free speech requires both institutional and societal support: abide by legal protections, promote public education, support independent media, and encourage peaceful protesters and whistleblowers. However, these alone are insufficient. To truly protect free speech, a culture of discourse must be cultivated: one where people can coexist with those on the other side of the argument and realize that disagreements have the potential to develop into communal accord.
While the principles of free speech set by Brandenburg should not be overturned, it is essential to revisit their application in practice as the modern role of free speech becomes increasingly questioned by ‘civil’ suppression. Its role has never truly changed, from Plato and togas to Trump and Patagonia the garb and person has seldom mattered – the original litmus test remains a guiding principle: can one criticize the political system and leadership under which one lives? Suppression of free speech remains ever present in society yet with the tools of civil disobedience and even regulated protest, our laws and principles can be upheld – even by breaking them. A reemphasis on discursive education, with open and nuanced conversation alongside an understanding of effective civility is crucial to facilitate the progress of our country, not only socially, but in every aspect of society. Every time we ask the question now we get the same answer, no; although the definition of insanity is trying the same thing over and over again expecting different results, in this case we must keep asking and challenging because if the answer never becomes yes, we lose what makes democracy democratic. In taking action, citizens should engage in the political process and advocate for policies that promote free speech.
[1] Jacob Mchangama & Jonathan Rauch, What We Can Learn from the History of Free Speech, Cato Institute, https://www.cato.org/policy-report/may/june-2022/what-we-can-learn-history-free-speech (last visited Feb 3, 2024).
[2] The Bill of Rights: A Transcription, National Archives (2015), https://www.archives.gov/founding-docs/bill-of-rights-transcript (last visited Feb 3, 2024).
[3] Brandenburg v. Ohio, Oyez, https://www.oyez.org/cases/1968/492 (last visited Feb 3, 2024).
[4] Alien and Sedition Acts (1798), National Archives (2021), https://www.archives.gov/milestone-documents/alien-and-sedition-acts (last visited Feb 3, 2024).
[5] History of Free Speech | The Foundation for Individual Rights and Expression, https://www.thefire.org/history-free-speech (last visited Feb 3, 2024).
[6] Schenck v. United States, 249 U.S. 47 (1919), Justia Law, https://supreme.justia.com/cases/federal/us/249/47/ (last visited Feb 3, 2024).
[7] Brandenburg v. Ohio, Oyez, https://www.oyez.org/cases/1968/492 (last visited Feb 3, 2024).
[8] What is the role of free speech in a Democratic society? | University of Chicago News, (2019), https://news.uchicago.edu/story/what-role-free-speech-democratic-society (last visited Feb 3, 2024).
[9] What is the role of free speech in a Democratic society? | University of Chicago News, (2019), https://news.uchicago.edu/story/what-role-free-speech-democratic-society (last visited Feb 3, 2024).
[10] Condé Nast, ACLU to DeSantis, Colleges: Pro-Palestine Organizing Is First Amendment-Protected Speech, Teen Vogue (2023), https://www.teenvogue.com/story/israel-palestine-aclu-campus-free-speech-letter (last visited Feb 3, 2024).
[11] Kelly Shackelford, Mary Beth and John Tinker and Tinker v. Des Moines: Opening the Schoolhouse Gates to First Amendment Freedom, 39 Journal of Supreme Court History 372 (2014), https://muse.jhu.edu/article/875390 (last visited Feb 3, 2024).
[12] Brandenburg v. Ohio, Oyez, https://www.oyez.org/cases/1968/21 (last visited Feb 3, 2024).
[13] WBZ-News Staff, Some Executives Want to Blacklist Harvard Students Who Signed Letter Blaming Israel for Attacks - CBS Boston, (2023), https://www.cbsnews.com/boston/news/harvard-students-groups-letter-blaming-israel-blacklist-names/ (last visited Feb 3, 2024).
[14] Is civility a sham? | DPIR, (2018), https://www.politics.ox.ac.uk/news/civility-sham (last visited Feb 3, 2024).
[15] fighting words, LII / Legal Information Institute, https://www.law.cornell.edu/wex/fighting_words (last visited Feb 3, 2024).
[16] Free Speech / Civil Disobedience, Police Department (2017), https://police.ucla.edu/other/free-speech-civil-disobedience (last visited Feb 3, 2024).
[17] Candice Delmas & Kimberley Brownlee, Civil Disobedience, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., Fall 2023 ed. 2023), https://plato.stanford.edu/archives/fall2023/entries/civil-disobedience/ (last visited Feb 3, 2024).
[18] Snyder v. Phelps (2011), The Free Speech Center, https://firstamendment.mtsu.edu/article/snyder-v-phelps/ (last visited Feb 3, 2024).
[19] United Nations, Hate Speech versus Freedom of Speech, United Nations, https://www.un.org/en/hate-speech/understanding-hate-speech/hate-speech-versus-freedom-of-speech (last visited Feb 3, 2024).
[20] Equality Human Rights, https://www.equalityhumanrights.com/en/our-work/news/freedom-speech-education-foundation-effective-society.
[21] Rajat Khosla & David McCoy, Dissent and the Right to Protest in Context of Global Health, 7 BMJ Glob Health e011540 (2022), https://gh.bmj.com/lookup/doi/10.1136/bmjgh-2022-011540 (last visited Feb 3, 2024).
[22] Susanna Granieri, DeSantis Defunds Diversity and Inclusion Programs in Florida Public Higher Education, First Amendment Watch (2023), https://firstamendmentwatch.org/desantis-defunds-diversity-and-inclusion-programs-in-florida-public-higher-education/ (last visited Feb 3, 2024).