Why are limits to free speech important primary source

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project.

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One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Right?

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time. Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

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Before answering this question, read the full text of the amendment. What does it say about speech?

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, and to petition the Government for a redress of grievances.

Next, read these excerpts from three recent articles about free speech cases that might affect your life:

In a September 2017 article, “High Schools Threaten to Punish Students Who Kneel During Anthem,” Christine Hauser writes:

The controversy over kneeling in protest of racial injustice moved beyond the world of professional sports this week, when a number of schools told students they were expected to stand during the national anthem.

On Long Island, the Diocese of Rockville Centre, which runs a private Catholic school system, said students at its three high schools could face “serious disciplinary action” if they knelt during the anthem before sporting events.

In a June 2018 article, “Colleges Grapple With Where — or Whether — to Draw the Line on Free Speech,” Alina Tugend writes:

It has happened across the country, at small private colleges and large public universities: an invited guest is heckled or shouted down or disinvited because of opposing political views.

And the incident is followed by a competing chorus of accusations about the rights of free speech versus the need to feel safe and welcome.

It’s something those in higher education have grappled with for decades. But after the 2016 presidential election and the increasing polarization of the country, the issue has taken on a new resonance.

In another June 2018 article, “Supreme Court Strikes Down Law Barring Political Apparel at Polling Places,” Adam Liptak writes:

The Supreme Court on Thursday struck down a Minnesota law that prohibits voters from wearing T-shirts, hats and buttons expressing political views at polling places.

In a cautious 7-to-2 decision, the court acknowledged the value of decorum and solemn deliberation as voters prepare to cast their ballots. But Chief Justice John G. Roberts Jr. wrote that Minnesota’s law was not “capable of reasoned application.”

Students, read at least one of the above articles in its entirety, then tell us:

— Why is the freedom of speech an important right? Why do you think it’s worth protecting?

— What is the value in protecting unpopular speech?

— The Supreme Court has determined that certain types of speech, such as fighting words, violent threats and misleading advertising, are of only “low” First Amendment value because they don’t contribute to a public discussion of ideas, and are therefore not protected. Even though the text of the First Amendment does not make any distinction between “low” and “high” value speech, do you think the court is correct in ruling that some categories of speech are not worth protecting? What types of speech would you consider to be “low” value? What types of speech are “high” value, in your opinion?

— What do you think about the free speech issues raised in the three articles above? For example:

• Should students be allowed to kneel during the national anthem? Why?
• Should colleges be allowed to forbid controversial or “offensive” guests from speaking on campus? Why?
• Should individuals be able to wear overtly political T-shirts or hats to the polling booth? Why?

— When might the government draw reasonable limits to the freedom of speech, and why?

— We now want to ask you an important constitutional question: When does the First Amendment allow the government to limit speech? We want to hear what you think. But to clarify, we’re not asking for your opinion about policy. In other words, we’re not asking whether a certain type of speech, like flag burning or hate speech, should be protected or prohibited. Instead, we’re asking you to interpret the Constitution: Does the First Amendment protect that speech?

Do your best to base your interpretation on the text of the amendment itself and your knowledge of how it can be understood. You may want to consult this essay in the National Constitution Center’s Interactive Constitution to learn more about how scholars and judges have interpreted the First Amendment, but rest assured, you don’t have to be a Supreme Court justice to have an opinion on this matter, and even the justices themselves often disagree.

— When you interpret the First Amendment, what do you think it has to say about the free speech issues raised in the three articles. For example:

• Does the First Amendment protect the right of students at government-run schools (public schools) to protest? What about students who attend private schools?
• Does the First Amendment allow private colleges to prohibit certain controversial speakers? What about government-run colleges (public colleges)?
• Finally, does the First Amendment protect voters’ right to wear whatever they want to the polling booth?

Are any of your answers different from your answers above, when you answered the three “should” questions?

— When scholars, judges and lawmakers try to balance strong speech protections with the goal of maintaining a peaceful society, what ideas or principles do you think are most important for them to keep in mind? Explain.

Students 13 and older are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.