Freedom of speech

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Freedom of speech is the political right to communicate one's opinions and ideas using one's body and property to anyone who is willing to receive them. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

The right to freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that "[e]veryone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice". Article 19 goes on to say that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "[f]or respect of the rights or reputation of others" or "[f]or the protection of national security or of public order (order public), or of public health or morals".[1][2][3]

First Amendment

The First Amendment to the United States Constitution codifies the freedom of speech as a constitutional right. The Amendment was adopted on December 15, 1791. The Amendment states:

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.

Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court used the incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from enacting such laws. [4]

The Supreme Court has listed the narrow categories of speech that it recognizes as unprotected:[5]

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Child pornography

The free speech implications of prohibiting child pornography have been examined by the U.S. Supreme Court in several cases. In New York v. Ferber, 458 U.S. 747 (1982), the Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity. In Osborne v. Ohio, 495 U.S. 103 (1990), the three dissenting justices stated, "When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed. Mr. Osborne's pictures may be distasteful, but the Constitution guarantees both his right to possess them privately and his right to avoid punishment under an overbroad law."

Thus, the court failed to apply in this case the logic applied in Stanley v. Georgia, "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."[6] In Osborne, the court argued that "Ohio does not rely on a paternalistic interest in regulating Osborne's mind, but has enacted its law on the basis of its compelling interests in protecting the physical and psychological wellbeing of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials. . . . Moreover, Ohio's ban encourages possessors to destroy such materials, which permanently record the victim's abuse and thus may haunt him for years to come . . . and which, available evidence suggests, may be used by pedophiles to seduce other children."

Other implications

The freedom of speech of persons in prison or on probation or supervised release is routinely restricted. For example, in Harper v. Wallingford, the 9th Circuit allowed a prison to prevent a prisoner from receiving mail from NAMBLA.[7] Justice Louis Brandeis' dissent in Whitney v. California, 274 U.S. 357 (1927), argues that allowing people to speak freely about the merits of legalizing currently prohibited behavior, even when the speech might encourage people to engage in that behavior, prevents the democratic process from being strangled.

Compelled speech (i.e. forcing people to say stuff they don't want to say) is theoretically prohibited,[8] although courts have rejected the argument that SORNA[9][10] or the International Megan's Law compels speech by forcing sex offenders to identify themselves as such.

See also

References