The First Amendment provides that "Congress shall make no law…abridging the freedom of speech or of the press…" It is assumed by most democrats that government by the people is based on the individuals right to speak freely, to question the decisions of the government, and to campaign openly against it. Elections, separation of powers and constitutional guarantees would not be meaningful if each person did not have the right to speak frankly as well as to hear and judge what others have to say. Though freedom of speech is essential, in a democracy it is not absolute, and hence important limitations have been placed on freedom of speech. It cannot be offensive, obscene or threaten the public order.

The first test used by the Supreme Court to distinguish between protected speech and regulated speech was announced by Justice Holmes in the case of Schenck versus United States (1919). "The question in every case is whether the words are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent." Thus, for example, a man had no right to shut "Fire!" in a crowded theater.

Further "no danger flowing from speech can be deemed clear and present," wrote Justice Brandeis in the case of Whitney versus California (1927), "unless the incidence of the evil is so imminent that it may befall before there is opportunity for full discussion." Thus the Holmes-Brandeis clear-and-present-danger formula is mainly a rule trying to determine the sufficiency of the evidence. According to this formula, before being allowed to punish a man for what he has said or written, the government has to clearly prove that his speech presents an imminent danger of a major substantive evil, as for example, rioting, destruction of property, or forceful overthrow of the government. In the case of Gitlow versus New York in 1925, the Supreme Court had already supported the dangerous or bad tendency doctrine, by which government could outlaw speech that had a tendency to lead to a substantive evil. By these doctrines, the speech of socialists and communists was limited during the early years of the Cold War. By the Smith Act (1940), it was a crime to overthrow the government by force. Political speech was protected under the First Amendment, unless it led to "imminent lawless action." This stand was taken during the tenure of Chief Justice Earl Warren.

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Index

12.0 Introduction
12.1 Perspective on Civil Liberties
12.2 The First Amendment:Freedom of Religion
12.3 The First Amendment:Freedom of Speech
12.4 The First Amendment:Freedom of Press
12.5 The Rights of Defendants
12.6 Implied Rights

Chapter 13