FREEDOM OF SPEECH
The right, guaranteed by the FIRST AMENDMENT to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.
Democracies have long grappled with the
issue of the limits, if any, to place on the expres-
sion of ideas and beliefs. The dilemma dates
back at least to ancient Greece, when the Atheni-
ans, who cherished individual freedom, never-
theless prosecuted Socrates for his teachings,
claiming that he had corrupted young people
and insulted the gods.
The Framers of the Constitution guaranteed
freedom of speech and expression to the citizens
of the United States with the First Amendment,
which reads, in part, “Congress shall make no
law . . . abridging the freedom of speech.”Almost
since the adoption of the BILL OF RIGHTS,how-
ever, the judiciary has struggled to define speech
and expression and the extent to which freedom
of speech should be protected. Some, like Justice
HUGO L. BLACK, have believed that freedom of
speech is absolute. But most jurists, along with
most U.S. citizens, agree with Justice OLIVER
WENDELL HOLMES JR. , who felt that the Consti-
tution allows some restrictions on speech under
certain circumstances. To illustrate this point,
Holmes wrote, “The most stringent protection
of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic”
(SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).
During the two centuries since the adoption
of the First Amendment, the U.S. Supreme
Court has held that some types of speech or
expression may be regulated. At the same time,
the Court has granted protection to some areas
of expression that the Framers clearly had not
contemplated.
Public Forum Regulation
When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the
U.S. Supreme Court examines whether the regu-
lation restricts the content of the speech or
merely regulates the time, manner, and place in
which the speech is delivered.
If the law regulates the content of the expres-
sion, it must serve a compelling state interest
and must be narrowly written to achieve that
interest (Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 [1983]). Restrictions on speech in a public forum also may be upheld if the expres-
sive activity being regulated is of a type that is
not entitled to full First Amendment protection,
such as OBSCENITY.
Laws that regulate the time, manner, and
place, but not content, of speech in a public
forum receive less scrutiny by the Court than do
laws that restrict the content of expression.
These so-called content-neutral laws are permis-
sible if they serve a significant government inter-
est and allow ample alternative channels of
communication (see Perry). It is not necessary
that a content-neutral law be the least restrictive
alternative, but only that the government’s inter-
est would be achieved less effectively without it
(Ward v. Rock against Racism, 491 U.S. 781, 109
S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).
An important distinction is drawn between
public premises that serve as traditional public
forums and those that constitute limited public
forums. For example, state fair grounds are pub-
lic premises that have not traditionally served as
public forums. The government may impose
more restrictions on free speech in limited pub-
lic forums than in traditional public forums. In
Heffron v. International Society for Krishna Con-
sciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed.
2d 298 (1981), the Court upheld regulations lim-
iting the sale or distribution of religious materi-
als to fixed locations on state fair grounds.
The Court reaffirmed in Thomas v. Chicago
Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L.
Ed.2d 783 (2002) that local governments do not
violate the First Amendment when they require
the obtaining of a permit before individuals can
hold large-scale rally events in public parks. In
this case, the Chicago Park District denied a rally
permit to a group that had sought to hold a
“Hempfest.” The park district denied the permit
because of violations of park rules at previous
events run by the organizers. The group chal-
lenged the denial, arguing that the park district
could use its unfettered discretionary power to
deny permits to those who held unpopular or
controversial political views, such as support for
the legalization of marijuana. The U.S. Supreme
Court held that the park district’s ordinance was
a constitutionally permissible “content-neutral”
regulation of time, manner, and place. It was
directed toward all activity in a public park, not
just toward communicative or political activity.
It did not constitute subject-matter CENSORSHIP
in any way. The Court explained that the park
district’s object was to coordinate multiple uses
of limited space; to assure preservation of park
facilities; to prevent dangerous, unlawful, or
impermissible uses; and to assure financial
accountability for damages caused by an event.
Although it seems reasonable to assume that
public premises owned and operated by the gov-
ernment are public forums, some are not. In
Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17
L. Ed. 2d 149 (1966), the U.S. Supreme Court
upheld the TRESPASS conviction of students who
demonstrated on the grounds of a jail. Although
jailhouse grounds are public property, they have
not been used traditionally as public forums:
“No less so than a private owner of property, the
state has the power to preserve the property
under its control for the use to which it is law-
fully dedicated.” Later cases challenging
restricted access to public premises focused on
whether the government, in creating the prem-
ises, had intended to create a public forum. In
United States v. Kokinda, 497 U.S. 720, 110 S. Ct.
3115, 111 L. Ed. 2d 571 (1990), the Court upheld
a postal-service regulation that bars the solicita-
tion of contributions on a post office’s sidewalk,
because that sidewalk lacked the characteristics
