Freedom of Expression
No other democratic society in the world permits personal freedoms to the degree of the United States of America. Within the last sixty years, American courts, especially the Supreme Court, have developed a set of legal doctrines that thoroughly protect all forms of the freedom of expression. When it comes to evaluating the degree to which we take advantage of the opportunity to express our opinions, some members of society may be guilty of violating the bounds of the First Amendment by publicly offending others through obscenity or racism. Americans have developed a distinct disposition toward the freedom of expression throughout history.
The First Amendment clearly voices a great American respect toward the freedom of religion. It also prevents the government from "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."1 Since the early history of our country, the protection of basic freedoms has been of the utmost importance to Americans.
In Langston Hughes' poem, "Freedom," he emphasizes the struggle to enjoy the freedoms that he knows are rightfully his. He reflects the American desire for freedom now when he says, "I do not need my freedom when I'm dead. I cannot live on tomorrow's bread."2 He recognizes the need for freedom in its entirety without compromise or fear.
I think Langston Hughes captures the essence of the American immigrants' quest for freedom in his poem, "Freedom's Plow." He accurately describes American's as arriving with nothing but dreams and building America with the hopes of finding greater freedom or freedom for the first time. He depicts how people of all backgrounds worked together for one cause: freedom.3
I selected Ray Bradbury's Fahrenheit 451 as a fictitious example of the evils of censorship in a world that is becoming illiterate. In this book, the government convinces the public that book reading is evil because it spreads harmful opinions and agitates people against the government. The vast majority of people accept this censorship of expression without question and are content to see and hear only the government's propaganda.4 I found this disturbing yet realistic. Bradbury's hidden opposition to this form of censorship was apparent throughout the book and finally prevailed in the end when his main character rebelled against the practice of burning books.
Among the many forms of protests are pickets, strikes, public speeches and rallies. Recently in New Jersey, more than a thousand community activists rallied to draft a "human" budget that puts the needs of the poor and handicapped as a top priority.5 Rallies are an effective means for people to use their freedoms effectively to bring about change from the government.
Freedom of speech is constantly being challenged as is evidenced in a recent court case where a Gloucester County school district censored reviews of two R-rated movies from a school newspaper. Superior Court Judge, Robert E. Francis ruled that the student's rights were violated under the state Constitution.6 I feel this is a major break through for students' rights because it limits editorial control of school newspapers by educators and allows students to print what they feel is important.
A newly proposed bill (A-557) would prevent school officials from controlling the content of student publications. Critics of the bill feel that "student journalists may be too young to understand the responsibilities that come with free speech."7 This is a valid point; however, it would provide an excellent opportunity for them to learn about their First Amendment rights that guarantees free speech and freedom of the press.
In his commencement address to Monmouth College graduates, Professor Alan Dershowitz of Harvard Law School defended the broad right to free speech. He stated, "My message to you graduates is to assert your rights, to use them responsibly and boldly, to oppose racism, to oppose sexism, to oppose homophobia and bigotry of all kinds and to do so within the spirit of the First Amendment, not by creating an exception to it."8 I agree that one should feel free to speak openly as long as it does not directly or indirectly lead to the harm of others.
One of the more controversial issues was the recent 2 Live Crew incident involving obscenity in rap music. Their record, "As Nasty as They Wanna Be," was ruled obscene in federal court. They were acquitted of the charges and quickly became a free speech martyr. Although many stores pulled the album, over two million copies sold as a result of the incident.9 I feel that in this case the principles of free speech have been abused because young children can purchase and listen to this obscene music.
The American flag, symbol of our country's history and patriotism, has also become a topic of controversy. The controversy was over the right to burn the flag without punishment. Supreme Court Justice William Brennan offered the response that "if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."10 Burning the flag is considered a form of symbolic speech and therefore is protected under the First Amendment. As in the 2 Live Crew case, I feel that we are protecting the wrong people in this case. The minority is given precedence at the sacrifice of the majority.
The book, American Voices, is a collection of essays on the freedom of speech and censorship. I chose to put this collection of essays into my book because they represent the strong central theme of freedom of expression as the cornerstone of American government, culture and life.11 Each essay strongly defends a case for free commercial speech. Each was generally in favor of fewer limitations on freedom of expression.
The American voice on freedom has been shaped throughout the course of history by the initial democratic notions of the immigrants to the same desire for greater freedom that we have today. The freedom of speech has constantly been challenged and will continue to be challenged in the future. It is important that we learn from the precedented cases of the past of our constitutionally protected rights so that in the future authority will not violate our freedoms or oppress our liberty.
Ever since colonial times, the protection of personal freedoms in the United States has been significantly important. Even in the early stages of American history there was an urge to put legally protected freedoms into written government documents. The result was the drafting of the first ten amendments to the Constitution, the Bill of Rights, by James Madison. The applications of the personal freedoms described in the Bill of Rights, particularly the freedom of speech, have been challenged repeatedly in American courts of law and elsewhere. These incidents and challenges of authority reflect the defensive American attitude toward the ever important freedom of expression and the growing significance of personal rights throughout American history.
In Colonial America, members of diverse nationalities had opposing views on government, religion, and other subjects of interest. Serious confrontations were prevented because of the vast lands that separated groups of varying opinions. A person could easily settle in with other like believers and be untouched by the prejudices and oppression of others. For this reason, Unitarians avoided Anglican or Puritan communities. Quakers and Anabaptists were confined to Pennsylvania and Rhode Island while Catholics were mainly concentrated in Maryland.12 As the United States grew larger and larger, these diverse groups were forced to live together. This may have caused individual liberties to be violated because of the distrust and hostile feelings between ethnic and religious groups.
Most of the initial assemblies among the colonies considered themselves immune from criticism. They actually issued warrants of arrest, interrogated, fined, and imprisoned anyone accused of libeling the assembly as a whole or any of its members. Many people were tracked down for writing or speaking works of offense.
The first assembly to meet in America, the Virginia House of Burgesses, stripped Captain Henry Spellman of his rank when he was found guilty of "treasonable words."13 Even in the most tolerant colonies, printing was strictly regulated. The press of William Bradford was seized by the government when he printed up a copy of the colony's charter. He was charged with seditious libel and spent more than a year in prison.
A more famous incident was the trial of John Peter Zenger which established the principle of a free press. In his newspaper he published satirical ballads regarding William Cosby, the unpopular governor, and his council. His media was described "as having in them many things tending to raise seditions and tumults among the people of this province, and to fill their minds with a contempt for his majesty's government."14 The grand jury did not indict Zenger and the General Assembly refused to take action. The defendant was acquitted on the basis that in cases of libel the jury should judge both law and the facts.
James Alexander was the first colonial writer to develop a philosophy on the freedom of speech. He founded the American Philosophical Society and masterminded the Zenger defense. Alexander's chief conviction was "Freedom of speech is a principal pillar in a free government: when this support is taken away, the constitution is dissolved and tyranny is erected on its ruins."15
The original Constitution did not contain a bill of rights because the convention delegates felt that individual rights were in no danger and would be protected by the states. However, the lack of a bill of rights was the strongest objection to the ratification of the Constitution.
Less than a decade after the Bill of Rights had been adopted it met its first serious challenge. In 1798, there was a threat of war with France and thousands of French refugees were living in the United States. Many radicals supported the French cause and were considered "incompatible with social order."16 This hysteria led Congress to enact several alien and sedition laws. One law forbade the publication of false, scandalous or malicious writing against the government, Congress or the President. The penalty for this crime was a $2,000 fine and two years in prison.
The public was enraged at these laws. Thomas Jefferson and James Madison pleaded for freedom of speech and the press. The alien and sedition laws became a prime issue in the presidential election of 1800. Soon after Jefferson was elected, the Sedition Act expired and those who had been convicted under it were immediately pardoned.17
The next attack on the First Amendment occurred in 1835. President Andrew Jackson proposed a law that would prohibit the use of mail for "incendiary publications intended to instigate the slaves to insurrection."18 John C. Calhoun of South Carolina led a special committee that opposed the proposal on grounds that it conflicted with the First Amendment. The proposal was defeated because it was a form of censorship.
The next violation of the principles contained in the First Amendment came on January 2, 1920. Under the direction of A. Mitchell Palmer, Woodrow Wilson's Attorney General, about 500 FBI agents and police raided 3,000 Russians and other European immigrants, looking for Communists to deport. The victims were arrested without warrants, homes were ransacked, personal property was seized, and they were hauled off to jail.
An even more vicious episode was known as "McCarthyism,"19 an incident in the 1950's when Senator Joseph R. McCarthy of Wisconsin proclaimed that the federal government had been thoroughly infiltrated by Communist agents. His attacks on United States information libraries abroad led to the burning of some books accused of being Communist propaganda. Reduced congressional support caused many librarians to resign and the closing of libraries.
On the morning of December 16, 1965, thirteen year old Mary Beth Tinker went to school in Des Moines, Iowa. She and her fifteen year old brother, John, had decided to wear black armbands as a protest to the Vietnam War. In advance to their arrival, the principal had decided that any student wearing an arm- band would be told to remove it, stating that, "The schools are no place for demonstrations."20 If the student refused, he would be suspended until the armband was permanently removed. On December 16, the Tinkers refused to remove their armbands. They were suspended and did not return to school until after January 1, when by a previous decision the protest had ended.
The students brought suit in federal court to confirm their First Amendment right to wear the black armbands. They lost in The Federal District Court on grounds that this type of symbolic expression might disturb school discipline. The United States Court of Appeals for the Eighth Circuit was divided equally (4 4) so the decision remained unchanged.
On February 24, 1969, the United States Supreme Court decided in the students' favor by a vote of 7 to 2. The Tinker v. Des Moines Independent School District decision was a landmark case for students' rights and liberties. Speaking for the majority of the Court, Justice Abe Fortas wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."21
During the sixties and early seventies a new wave of court battles for First Amendment freedoms emerged. The freedom of speech was recognized as a vital element in a democratic society. Censorship and the infringement of First Amendment rights, especially among students and their newspapers, could not and would not be tolerated. American citizens took a firm stand against the government and authority at important times when they could have yielded to the oppressive violations of their rights.
22"Amendments to the Constitution." Collier's Encyclopedia, 1965 ed.
23Langston Hughes, The Panther and the Lash (New York: Alfred A. Knopf, Inc., 1967), 55.
24Langston Hughes, Selected Poems (New York: Alfred A. Knopf, Inc., 1981), 291-293.
25Ray Bradbury, Fahrenheit 451 (New York: Ballantine Books, 1973).
26Donna Leusner, "Social Services Advocates Rally for 'Human' Touch in State Budget," The Star Ledger, 9 April 1991: A-3.
27"Student Wins Freedom of Speech Case," Daily Record, 24 April 1991: A-2.
28Bob McHugh, "'Free Speech' Moves for School Newspapers," The Star Ledger, 4 May 1991: A-3.
29Cathy Bugman, "Monmouth Grads Hear Top Lawyer Defend Broad Right to Free Speech," The Star Ledger, 27 May 1991: A-9.
30David Gates, "The Importance of Being Nasty," Newsweek, 2 July 1990: 52.
31Walter Isaacson, "O'er the Land of the Free," Time, 3 July 1989: 14-15.
32American Voices (New York: Phillip Morris, 1987).
33The First Freedom Today (Chicago: American Library, 1984), 3.
34The First Freedom Today, 4.
35The First Freedom Today.
36The First Freedom Today, 5.
37The First Freedom Today.
38American Voices (New York: Phillip Morris, 1987), 292.
39The First Freedom Today, 5.
40The First Freedom Today, 7.
41Nat Hentoff, The First Freedom (New York: Dell Publishing Co., 1980), 4.
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American Voices. New York: Phillip Morris, 1987.
Bollinger, Lee. C. The Tolerant Society. New York:
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Bugman, Cathy. "Monmouth Grads Hear Top Lawyer Defend Broad Right to Free Speech." The Star Ledger, 27 May 1991: A-9.
First Freedom Today, The. Chicago: American Library Association, 1984.
Gates, David. "The Importance of Being Nasty." Newsweek, 2 July 1990: 52.
Hentoff, Nat. The First Freedom. New York: Dell Publishing Co., 1980.
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Isaacson, Walter. "O'er the Land of the Free." Time,
3 July 1989: 14-15.
Kalven, Harry, Jr. A Worthy Tradition. New York: Harper and Row, 1988.
Leusner, Donna. "Social Services Advocates Rally for 'Human' Touch in State Budget." The Star Ledger,
9 April 1991: A-3.
McHugh, Bob. "'Free Speech' Moves for School Newspapers." The Star Ledger, 4 May 1991: A-3.
"Student Wins Freedom of Speech Case." Daily Record,
24 April 1991: A-2.
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