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Demonstrators on opposite sides of the abortion debate protest in front of the U.S. Supreme Court. In the United States, uninhibited public debate creates an intellectual
marketplace where ideas compete with other freely expressed ideas. © AP Photo/Gerald Herbert
T
he Universal Declaration the freedom of speech, or of the way to counter offensive speech
of Human Rights (UDHR) press; or the right of the people is not with regulation but with
and the International peaceably to assemble, and to more speech.
Covenant on Civil and Political petition the government for a
Rights (ICCPR), to which the redress of grievances.” The Foundation of Free
United States is a party, both state
The U.S. Constitution protects Expression
that individuals have a right to
even the most offensive and con- The U.S. Constitution’s protection
freedom of expression; this right
troversial speech from govern- of freedom of expression embod-
includes the freedom to seek,
ment suppression, and permits ies the notion that an individual’s
receive and impart information
regulation of speech only under ability to express himself freely —
and ideas of all kinds.
certain limited and narrow cir- without fear of government pun-
The United States safe- cumstances. The U.S. system is ishment — produces the autonomy
guards this right through the built on the idea that the free and and liberty that promote better
First Amendment to the U.S. open exchange of ideas encour- governance. Allowing citizens
Constitution, which provides ages understanding, advances to openly discuss topics of public
that “Congress shall make no law truth-seeking and allows for concern results in a more trans-
respecting an establishment of the rebuttal of falsehoods. The parent and representative govern-
religion, or prohibiting the free United States believes, and expe- ment, more tolerant ideas, and a
exercise thereof; or abridging rience has shown, that the best more stable society.
Freedom of Expression in the United States
1 See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (citing Abrams v. United States, 250
U.S. 616, 630 (1919) (Holmes, J., dissenting)). 3 Brandenburg v. Ohio, 395 U.S. 444, 446 (1969).
2 Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37, 45 (1983). 4 Id. at 447.
Freedom of Expression in the United States
A Klansman listens to a leader’s speech against illegal immigration while hundreds of demonstrators hold signs in protest of the Ku Klux Klan rally. © AP Photo/
News-Courier, Kim Rynders, left and © AP Photo/ The Decatur Daily, Jonathan Palmer, right
True Threats This decision was later extended to cover “public fig-
ures,” in addition to public officials.6 For the private
Speech may also be restricted based on its content if
concerns of private individuals, though, the standard
it falls within the narrow class of “true threats” of
for proving defamation remains lower.7 Defamation
violence. A true threat is a statement that a reason-
of private individuals can be established if the state-
able recipient would take to mean that the speaker, or
ments were false and damaged the person’s reputation
people working with the speaker, intend to commit
without showing actual malice. Only individuals, not
physical harm against the recipient. For example, a
groups, can be defamed.
Philadelphia woman was sentenced to eight months
confinement after she left an anonymous threatening
5 New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
note on her colleague’s chair.
6 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
7 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (plurality opinion).
Freedom of Expression in the United States
Demonstrators for and against same-sex marriage express their opposing viewpoints. The United States believes the most The United States’ strong constitu-
effective weapon in combating hate speech is tolerant, truthful and intelligent counter-speech. © AP Photo/Toby Talbot tional protections for and belief in
freedom of expression do not mean
Even where courts find defama- artistic, political or scientific value, that it sits idly by as individuals and
tion, they do not impose criminal when taken as a whole.8 groups seek to spread toxic expres-
punishment. Instead, courts may sions of hatred. Rather, the United
A court evaluates each element
require the speaker to publish a States deploys an array of policies
independently and will not clas-
correction to the defamatory state- to reach out to affected communi-
sify expression as obscene unless
ment and/or to financially com- ties, provide conflict resolution ser-
all factors exist. For example, if
pensate the victim. vices, and enhance dialogue.
a book uses coarse language and
depicts sexual conduct but, taken
Obscenity as a whole, does not appeal to pru- GOVERNMENT VERSUS
Obscenity may be restricted under rient interests or has literary value, PRIVATE ACTION
the First Amendment, but there has it is not obscene.9 Given such high The First Amendment protects citi-
been a long debate over what consti- standards, it is rare for the courts zens from government restrictions
tutes obscenity and how it should be to find expression obscene. on free expression. It is inapplica-
regulated. The U.S. Supreme Court ble to situations in which a private
defined obscenity in 1973 as expres- Hate Speech party restricts another’s speech. A
sion that the average person, applying private employer, for example, may
Hate speech — generally defined
contemporary community standards, forbid its employees from shar-
as speech that maligns a person
would find 1) appeals to prurient ing the company’s trade secrets.
or group based on race, ethnicity,
interests, 2) depicts or describes sex- Still, those employees enjoy First
ual conduct in a patently offensive 8 Miller v. California, 413 U.S. 15 (1973). Amendment protections with
way, and 3) lacks serious literary, 9 See United States v. One Book Called “Ulysses”, 5 F.
respect to government action.
Supp. 182 (S.D.N.Y. 1933).
U N I T E D S TAT E S D E PA RT M E N T O F S TAT E
Published April 2013 B U R E A U O F I N T E R N AT I O N A L I N F O R M AT I O N P R O G R A M S