FREEDOM OF EXPRESSION IN THE UNITED STATES

Herman Schwartz, Professor

American University, Washington College of Law Washington, D.C.

American law considers freedom of expression to be our highest constitutional value, the cornerstone of democracy and freedom. A belief that this freedom is vital to a free society is not, of course, unique to the United States. It is reflected in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights. The European Court of Human Rights, the Inter-American Court of Human Rights and free nations everywhere also share this belief. A Hungarian court has called it "the `mother right' of all fundamental rights dealing with communication." But Americans place freedom of expression on a particularly high pedestal, giving it priority over other interests more often than do other nations. For this reason, American law has a very strong presumption against restrictions on speech, and such restrictions must meet a heavy burden of justification.

This is not because we don't understand the concerns of some people and groups with giving freedom of expression such a preference. We know that speech can indeed sometimes seem to be dangerous to other fundamental interests and needs, and that sometimes it really can be. America has had many internal and external conflicts. We are not a homogeneous or monolithic society - we are after all a nation of immigrants, some of whom, like most of our African-American population, were subjected to slavery and discrimination for centuries. We have often had serious disputes about race, religion, wealth and other matters, and some of these disputes have exploded into violence.

Moreover, we have had many external threats.  The terrorism we face today is but

one of many such threats throughout our history, starting with our Revolution.  Our history, like that of so many nations is filled with crises and in many of these crises, there have been drastic restrictions on speech: in the 1790s, in the South before our Civil War, during  World War I, and during the McCarthy "red scare" era of the 1950s, to mention but some of these occasions.

Tragic experience has taught us, however, that these restrictions were usually not needed, and that they often did far more harm than good. Indeed, they usually did nothing but harm, often destroying careers, families, and undermining democracy.

This does not mean that there should be no restrictions on speech. The U.S. has many laws on both the federal and state levels that properly abridge speech and the press: laws against inciting people to commit violence, laws to protect national security and the processes of justice, laws on defamation, trade secrets, and on obscene literature, to mention but a few. But these laws are exceptions that must be justified by exceptional and pressing public needs; these will be discussed in more detail later. Overall, our public discourse has remained, as our Supreme Court has put it, "uninhibited, robust, and wide open…vehement, caustic... [and it can] include sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan (1964)

Why do we prize speech so highly? Let me note just a few of the reasons.

1. The Market Place of Ideas.

Speech and truth.

Sound policy in any society must be built on truth and good judgment. Neither is possible when speech is restricted. Only through the free play of ideas in open

competition with each other can sound policy emerge. In 1919, before the American law on free speech truly emerged and in the wake of World War I, the great American Supreme Court Just cc Oliver Wendell Holmes wrote, the best test of truth is the power of the thought to get itself accepted in the competition of the market. Abrams v. United States (1919) (Holmes, J., dissenting).

One example where speech was suppressed and produced great damage comes from recent Russian history. Soviet agricultural science was held back for decades because the ideas of a man named Trofim Lysenko were adopted in the 1930s by the government for ideological reasons. His ideas were nonsense, but no one was allowed to challenge his theories for over 30 years, and the Soviet peoples suffered terrible food and related shortages because of that.

This does not mean that free speech guarantees truth, wisdom or the best policies. Nothing human can provide such guarantees. But the chances of achieving these goals are very slim where there is no opportunity to discuss matters freely, for nobody has a monopoly on either.

Speech and Democracy

Related to the marketplace notion - the idea of free and open competition among diverse points of view - is the link between free speech and democracy. In a true democracy, government policies should reflect the will of the people as expressed through voting and other means of communication and expression, such as civil society and the media. Since in a democracy, sovereignty of the people means all of the people

(subject to certain viewpoint-neutral and other limitations), the different elements in a society must all have an equal opportunity to express themselves freely. Different people and groups will obviously have different views as to what those policies should be. Whether in organized or unorganized groups or as individuals, the citizenry must have an opportunity to discuss and debate the important issues, and to tell the governors what they think those policies should be. Without that, the people cannot make their views known, and democracy cannot work. "Freedom of expression," the Supreme Court of Canada has said, "is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons." Whether in organized or unorganized groups or as individuals, they must have an opportunity to discuss and debate, and to tell the governors what they think those policies should be. Nor may it restrict efforts through peaceful and public debate by members of the community to persuade the rest of the community and its leaders to adopt different policies or different leaders. Democracy is a dynamic form of government that requires readily available information and vigorous public debate.

Once the people have made their views known and chosen officials to implement certain policies, the governors must be held accountable to the people for the way they govern. To fulfill this function, the citizenry must be able to find out whether governmental policies reflect the people's views and truly further the community's interests, and then to communicate this information to each other and to those in charge. The right to know is thus the necessary complement to the right to speak. Government must be transparent and open, it may not hide what it is doing except when absolutely necessary.  It may not conceal its activities or what is happening in order to avoid criticism or embarrassment.

This of course means that public officials and governments must accept criticism, which is not easy for people in power. No government, whether democratic or authoritarian, welcomes criticism. Indeed, nobody likes to be criticized, none of us. Government officials, in particular, don't like being told they are not doing a good job. Democratically elected officeholders don't want to risk being voted out of office, or even forced to change what they are doing.  And if they're doing something they shouldn't, they certainly don't want that criticized or even made known.

The impulse on the part of government officials to suppress speech and to conceal information always exists – in my country, in your country, everywhere.  Nevertheless, a free democratic society cannot allow its rulers to stifle criticism and this is why freedom of expression and the right to know must be vigilantly protected everywhere.

2. Speech as A Safety Valve

If people cannot express their views openly, if they are prevented from expressing their disagreements in ways that make the point effectively but hurt no one, they may well resort to still more dramatic ways that do hurt someone. A great American judge, Supreme Court Justice Louis D. Brandeis put it this way: "repression breeds hate [and ] hate menaces stable government. [T]he path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." Whitney v California (1927)

Moreover, prosecutions for speech do little to stem the criticism. If they succeed, they make martyrs of the defendants, and drive the critics underground

where, if they cannot speak out, they may resort to violent or other dangerous activities.  If the prosecutions fail, they encourage more opponents to speak. The government looks foolish, inept, as if it is engaged in baseless and ineffectual harassment, which undercuts any claim that it adheres to the rule of law. It may also encourage supporters of the government policy, angered by the government's failures, to take matters into their own hands.

3. Some Threats to Free Expression

Libel and Insult

A particular threat to free expression and public debate is the wide-spread use of libel and insult laws. U.S. law does not permit defamation and insult laws that protect public officials or other powerful people, unless it can be shown that first, the offensive statements were factual -- not just insults or opinions, or value judgments --and secondly, that these factual allegations were not only false but made with malice, which means that when the statements were made, the speaker either knew the statements were false or he was recklessly indifferent to whether they were true or false. And the burden to show this deliberate lying or recklessness must be on the official. This is because criticism of leaders in a democracy must be given an opportunity to be wrong, so long as the speaker is not recklessly or deliberately irresponsible. Honest mistakes must be protected, for it they are punished, who will risk speaking?

This broad latitude for speech is not just true in the U.S.  The European Court of Human Rights has adopted a similar, though not identical position with respect to politicians and high government officials - speech is protected even if it offends, disturbs

or, even shocks the state or any sector of the population. Lingens v Austria (1986)  As an English judge put it, "Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence.  Freedom only to speak inoffensively is not worth having." Moreover, the European Court has declared that "the limits of permissible criticism are wider with regard to the government than in relation to ... even a politician." Castells v Spain (1992)

Particularly dangerous are insult laws, whether criminal or civil.  Throughout history and in many countries today, such laws are being used to crush honest criticism of public and private power holders, sometimes even if the insult is uttered in private. Yet insults, expressions of contempt or disdain with no substantive factual content, simply express a speaker's opinion of someone. They obviously show a lack of respect but the law cannot be used to enforce respect. Government officials and others who hold power must expect and accept that offensive statements during debate in a democracy will often be heated and intense, and some participants will inevitably say hurtful things.  To defend their honor, politicians and high government officers usually have no difficulty finding ways and places to respond.  Because insult laws are so dangerous to free speech and to enforcing governmental accountability, they are inherently a tool of repression and should be abolished. They have no place in a democracy.

Here again, the European Court's view is broadly consistent with that of the U.S. Mere opinions, value judgments - and that's what insults are - cannot be made criminal. Lingens v. Austria, supra.

4. Some Specific Issues

Flag Burning

In chatting with a Turkish friend a while back, I mentioned the Supreme Court's decision to allow the American flag to be burned to protest Government policy. She was shocked. But why? The flag is a symbol of the nation, true, but if the nation is embarked on what the speaker thinks is a very bad, even dangerous course, the speaker certainly should be allowed to protest. And since strong dissent may be expressed verbally, in words, why not in symbolic action? After all, flags that are worn out, torn or otherwise disfigured by natural causes or by accident may be destroyed, and by burning. No one's person or property is hurt more seriously by expressive flag burning than by more conventional forms of protest.

Vague Laws

Another method of suppression is to have laws that give officials broad discretion by not specifying clearly what is restricted. This allows officials to suppress honest criticism, to suppress even the raising of issues. Not only do vague laws give the rulers too much power, they don't give people notice of what they can and cannot say. For this reason, American law prohibits laws that are vague or which - though they may be aimed at some speech that could be made illegal – also strike at legitimate speech and are written too broadly.

For example, a law that punishes speech because it is "harmful to the national interest" is too vague. What is the "national interest" and who decides what it is? Many people, both in the U.S. and elsewhere, have a perhaps natural tendency to identify the

"national interest" with their own political or other interest. And what kind of "harm" is involved -justified and legitimate criticism that reduces support for government policy?

An example from American history that illustrates how such laws can be grossly abused for political or other purposes, occurred some 50 years ago. Some members of the American Congress established a congressional committee to attack certain speech and people as "un-American." I don't know the meaning of "un-American" nor did they. It cannot be defined with any precision. In practice, this label was used to condemn those who disagreed with government policies, who advocated unpopular ideas or those who were political opponents of the Congressmen. The lives and careers of thousands of good, decent people and their families were ruined by the use of this label by unscrupulous politicians and others.

The result of such vague and imprecise laws is that to avoid trouble, people will say nothing, thereby stifling the debate that is the lifeblood of democracy.

September 11, 2001

Since September 11, 2001, things have of course changed in the U.S., but not with respect to governmental restrictions of what may be said. We have learned at least that much from our unhappy history in times of national crisis. During both the Vietnam War 40 years ago and today, critics of governmental policies have felt no direct pressures from government on what they say, and criticism of government policies since 9/11 and especially since the invasion of Iraq has been truly "uninhibited, robust and ....vehement." There have indeed been some disturbing suggestions that journalists might be prosecuted under an old law for certain newspaper revelations of classified information, such as newspaper reports about electronic surveillance by the National Security Agency and the existence of secret CIA detention centers around the world, but nothing seems to have come of this.

There has been concern, however, about indirect obstacles to full and open discussion of critical issues, such as the vastly increased amount of government electronic and other forms of surveillance since 9/11 (including the monitoring of books checked out from libraries), and secret intrusions into homes and offices. And there has been a very sharp rise in the level of secrecy surrounding governmental activities since Sept. 11, which obviously affects adversely the other side of freedom of expression - the public's right to know what the government is doing.

Hate Speech

Although most of the free world shares a strong belief in the importance of free expression, one widespread exception is with respect to what is called "hate speech." Although this term is often used for various kinds of harsh speech, usually it refers to speech that stirs up animosities among groups, or speech that is truly hurtful to certain groups. Unlike other countries and despite the International Covenant on Civil and Political Rights, the U.S. does not prohibit hate speech unless it incites to imminent violence.

The most notable American example of this in recent years is the march of the American Nazi Party in a town called Skokie, Illinois, which was populated mostly by Holocaust survivors. The march was to be peaceful and it was agreed by all that no violence was likely. Nevertheless, the march deeply offended most of the residents and almost certainly brought up tragic and very painful memories for many of them.

I don't know if any other country in the world would have allowed the Nazi Party

to march in Skokie. We did, and no harm resulted. Indeed, when the Nazis won their court case and were permitted to march, they chose not to march in Skokie but elsewhere, and only 20 people marched.

Why did American law clearly allow the march? Simply put, it is because we believe the price to be paid from suppression is almost always higher than the price of allowing the speech. The harm involved in the Skokie case was serious - certain tragically vulnerable people were emotionally upset by bad people with hateful views. But the expression of a different position, whether politely or through a march or by harsh and painful speech or symbols, will often upset someone. Surely the Black civil rights marches in the American South upset many Southerners. The emotional reactions of those who disagree with a speaker cannot, however, be the basis for suppressing his or her speech. Strongly felt and harshly stated disagreements are inevitable in a vibrant democracy. It must be remembered that those who incite violence or promote discrimination still remain subject to the law. 

It is argued, however, that hate speech laws are necessary to protect minorities. The sad fact is that they are often used against minority speakers who use strong language to criticize the dominant group or groups, to vent their grievances, or to protest their persecution. Moreover, someone prosecuted for hate speech or a similar crime intended to protect a minority may well become a martyr to his allies if convicted and a hero if acquitted, thereby inspiring his sympathizers. What is gained by a prosecution is often lost by the consequences.

Our policy in this matter is obviously not perfect - no policy can be. So

far, however, we believe we are better off allowing harsh, even hateful speech, than to stop it.

Speech and Religion

One of the most contentious of conflicts today, which is related to the hate speech controversy, arises at the intersection of free expression and religion. We are all familiar with the violence that erupted as a result of the Danish cartoons, and the continuing controversies over head scarves and other outward signs of religious adherence. More than a few nations have struggled with these matters and come up with different responses.

In the U.S. the law is clear:  On the one hand, we believe that religions should be no more immune to the "uninhibited, robust" debate than any other kind of belief. As a matter of respect, courtesy and out of a sense of community, it is wrong to vilify or mock another's religious or other deeply felt beliefs. But as a matter of law, speech must remain free. Once we exempt religion from the overall ban on suppression of peaceful speech, why stop there? What about other deeply held beliefs? Which beliefs? And who determines which are to be protected?

On the other hand, and for similar reasons, we disagree strongly with those who would restrict religious expression that does not harm the person or property of others. I know of no public context in the U.S. outside of prisons, the military or other special institutions where wearing a head scarf or other religious symbol or clothing is prohibited

by law - private institutions can usually do what they wish, though discrimination on the ground of religion is not permitted. There may be situations where a burka or other religious clothing or symbols might impede the performance of a public function, such as a particular job or in a court proceeding where a woman wearing a hijab is called upon to testify - if eyes are her only visible part, this makes cross examination almost impossible. Apart from such special cases, we believe such laws are serious infringements of freedom of religion, though we are aware that ours is a minority view.

Prior Restraint

U.S. law, like that of the European Court of Human Rights and other countries, makes it difficult to suppress an expression in advance of publication. With news reports, for example, delay may deprive the report of all value. Moreover, when such a ban is administered by executive officials, the likelihood of abuse and excess by unnecessary denials is very high. American law therefore considers post- publication punishment the only proper sanction for illegal speech unless there is a threat of imminent violence or some other justifiable reason. The ECHR has also been reluctant to impose pre-publication bans except "upon the most careful scrutiny on the part of the Court ... especially so far as the press is concerned." Observer & Guardian v. United Kingdom (1991)

5. When public speech can be restricted: the "clear and present danger"doctrine.

Speech issues can arise in many contexts. My subject here is speech and expression accompanied by no other conduct, what can be called "pure speech." By that I mean speech that is restricted solely because of its content, because of what is

expressed. I do not include speech that is part of some action which the government wants and is entitled to prevent, even if no speech were involved. For example, in the United States protests against government policies have included flag burning and damage to government buildings. Although, as noted, it is permissible to burn flags to protest government policy, buildings may not be damaged even if it is for the same expressive purpose as the flag burning. The former form of "expression" is punished. Thus, I will be discussing only the case where a governmental restriction is imposed solely because of the expressive content of the communication.

Currently, the United States uses the "clear and present danger" test first advocated by Justice Holmes in 1919 and refined over the next 50 years in the 1969 Brandenburg v. Ohio case. In that case an Ohio law punished advocacy of violent change, just advocacy. When the law was challenged - by the racist Ku Klux Klan, by the way - a unanimous Court wrote that the state could not punish mere advocacy of some evil, just urging something dangerous. The Court said:

"The constitutional guarantees of free speech and free press do not permit a state to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Mere teaching without a very high likelihood of some lawlessness happening quickly cannot be punished.

Obviously one does not have to wait till the harm actually takes place - it is enough that there is a serious danger of immediate harm. But in any particular case, the court must look at the actual existing circumstances. The prosecution must prove to the satisfaction of an independent tribunal that in the particular factual context, the defendant

was inciting people to commit serious law-breaking, such as violence to people or property, that there really was a danger that this would happen very soon, that the particular restriction is truly necessary in order to meet that need, and that the restriction is the least restrictive way to meet it, that there is no less restrictive alternative. One example of speech that might meet the test would be if a speaker urges immediate violence against black people or Muslims in an emotional crowd that is racist or anti-Muslim.

The clear and present danger test applies primarily to the situation where the speaker is urging something that the community is unhappy with. There are however other situations involving violence, where the violence is in response to the speaker, who is not himself urging any law-breaking but is saying things that some in the audience find objectionable. For example, suppose someone speaks harshly against a war, in a room with many strong supporters of the war, and some of those supporters try to silence the speaker. In such a case the speaker is protected, not those who would prevent him from speaking.  The law should not permit what is called a "heckler's veto" to block a speaker from lawful speech. Police have an obligation to protect the speaker and only if they cannot do so with reasonable means, can he be forced to stop talking.

The problem of the hostile audience is of course particularly serious, where marches, picketing and demonstrations - protected expression under our Constitution - are concerned. Such demonstrations often draw violence either from counter demonstrators or from hostile bystanders. The demonstrators must obey reasonable restrictions as to time, place and manner to avoid traffic congestion, interference with public functions, and excessive disruption of normal activities. But so long as such

regulations are complied with, demonstrations are entitled to police protection and must be allowed to take place, no matter how hateful the message is to the listeners and bystanders.

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American notions of free speech are based on the premise that speech, even bitter and harshly expressed speech, should not be repressed so long as it remains peaceful.  And this holds true, whether it involves disputes among citizens or disputes between the citizen and the government.  As the great American Judge Learned Hand said, “this may be folly but upon it we have staked our all.”  In one way or another, all nations that value liberty and democracy must stake their all on such “folly.”

Turkey/US Speech 4.20.07

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