Page 136 - Freedom in the world_Neat

In the colonial era that predated the United States, freedom of speech was limited by
prepublication censorship, licensing for printing presses, and laws intended to punish
blasphemy and seditious libel. However, with the adoption of the U.S. Constitution in 1789
and the accompanying Bill of Rights in 1791, press freedom and freedom of speech
received explicit legal protection. “Congress shall make no law,” declares the First
Amendment, “abridging the freedom of speech, or of the press.”2
Two caveats should be noted. First, the amendment initially applied only to the legislative
branch of the federal government. Although many states chose to enshrine the concept of
press freedom in their own constitutions, not until Gitlow v. New York(1925) was it
decided that under the Fourteenth Amendment, the First Amendment must also apply to
the states and to other branches of government.
Second, from the beginning the First Amendment did not prevent either federal or state
authorities from restricting speech that was considered seditious, libelous, defamatory,
blasphemous, or obscene, or from prosecuting citizens and media outlets that contravened
these laws, especially during wartime or periods of political turmoil or polarization. For
example, the Sedition Act of 1798, although originally aimed at French citizens living in
America who were critical of then President John Adams, was used to punish the authors
of a wide range of antigovernment writings. In the three years before it expired in 1801,
more than 24 newspaper editors, all of whom were aligned with the president’s
opponents, were arrested and tried, and a number were fined or jailed.3
During World War I, Congress passed the Espionage Act of 1917, which was intended to
prevent speech or writings that could cause sabotage or interfere with military operations.
More than 2,000 people were convicted for violating the act during and immediately after
the war. The law was amended in 1940 and 1970 but remains in force today.4 Similarly,
the Smith Act of 1940 criminalizes speech that advocates the overthrow of the
government. This law has been used to suppress political dissent, particularly amid the
vehemently anti-Communist atmosphere following World War II.5
The Supreme Court did not begin to interpret the First Amendment significantly or to
adjudicate freedom of speech cases until the landmark case Schenck v. United States in
1919. In Schenck, the court articulated the important concept that speech had to present a
“clear and present danger” for anyone to be prosecuted under laws designed to suppress
it. This supplanted a more restrictive “bad tendency” doctrine that allowed the government
to restrict speech that could lead to future lawbreaking.
Although Schenck introduced a comparatively liberal doctrine, it led to a number of
convictions for sedition in the years between 1919 and 1968.6 However, 50 years
later, Brandenburg v. Ohio (1969) expanded protections for speech by establishing the
“incitement” standard for sedition, which held that unless speech led to immediate danger
or imminent lawless action it was protected under the First Amendment.7
“Prior restraint,” referring to censorship that prevents speech from being published, was
firmly rejected by the Supreme Court in the 1931 case Near v. Minnesota (1931). The
court argued that it was better to prosecute offenses after the fact than to prevent
publication. The ruling did allow exceptions on the grounds of “public decency” or
“incitements to acts of violence and overthrow by force of orderly government,”8 but the
federal government has only rarely attempted to impose prior restraint. Exceptions have
included cases in which the information slated for publication was believed to include vital
state secrets, such as the 1971 “Pentagon Papers” case (New York Times Co. v. United
States) and books and articles written by former employees of the Central Intelligence

Page 136 of 168