Freedom of Speech in the United States

Thomas L. Tedford

Dale A. Herbeck


Chapter 1

Freedom of Speech: The English Heritage



        The meaning of free speech

        The rationale for allowing free speech

        Who could practice free speech

        Standards of practice and contraint


Freedom of speech was born in Athens (800-400 B.C.)

        That liberty was not absolute.

        Its exercise was reserved for adult male citizens.


The Athenians had traditions or laws against:

        Slander (speaking ill of others)

        Impious Speech (blasphemy of the sacred)

        Sedition (severe criticism of the government)


Rome: dissent by permission

        Became accepted practice in Europe and the British Isles for 17 centuries

        NO Western nation – and the Christian church --guaranteed freedom of expression


The Magna Carta (1215)

        Justice could not be sold, denied or delayed except by peer judgment and the law of the land


Sir William Blackstone

        Commentaries on the Laws of England (1765-69)

        “Liberty of the press is indeed essential to the nature of a free state”

        Freedom of speech exists when there is no prior restraint on publishing

        However, bad tendency doctrine (punishment acceptable)  until Reform Bill of Rights of 1832


Freedom of speech depends on:

        Protection from arbitrary arrest and imprisonment (the writ of habeas corpus)

        The right of EACH citizen to communicate


In England, three phases of freedom of speech:

        The monarch and high clergy

        Members of Parliament

        All citizens


Competent authority = the only source of theological truth


The English Bill of Rights (1689)

        Expands freedom of speech to members of Parliament in their official capacity during a legislative session ONLY

        During most of the 17th century, Parliament was the principal deterrent to freedom of speech in England

The four libels




        Obscene libel


Seditious libel

        The Privy Council (to control seditious speech)

The Court of the Star Chamber (1542 to 1641)

Fox Libel Act (1792): truth accepted as a defense


Henry VIII (1531): Blasphemy became a concern of the state in England  with the Church of England


The first Index of banned books: 1564


Johann Gutenberg invents the printing press in 1450

        Prior communication: voice, hand-copied manuscripts (NO mass audience)


Licensing: controls printing presses and manuscripts

        Henry VIII: takes control of licensing in 1538

        Stationers’ Company monopoly in 1557 (Queen Mary) … charter reconfirmed in 1559 by Queen Eliabeth … finally expires in 1594 … Queen Eliabeth used the Stationers’ Company, the church and the business community to control freedom of speech


Statute of Anne (1710) and copyright

        1774: copyright the author’s right, not the publisher’s


Chapter 2

Freedom of Speech in America to World War I



        Tolerance of dissent during the Colonial period

        The Bill of Rights

        Freedom of speech and the Alien and Sedition Acts


In prerevolutionary America, the issues were similar to England:

        Who was allowed to speak

        What religious and political ideas were permitted

        Degree of prior restraint of the press practiced


Governor Thomas Dale of Virgina (1612)

        “Lawes Divine, Moral and Martial”


The chief oppressors of political dissent in prerevolutionary America were: elected assemblies


Roger Williams banished in 1635 from Massachusetts for: advocating the separation of church and state


John Peter Zenger trial (1735)

        Truth is a defense


Licensing in America: not the issue it was in England (with local exceptions)


Freedom of speech for ALL citizens did not become official government policy in America until: 1791, ratification of the Bill of Rights


Constitution of the United States (Sept. 17, 1787; ratified June 21, 1788)

        Promised a Bill of Rights

        Guarantees (p. 22)

Copyright Act of 1790

        Author-creator rights (14 years plus 14 years) until 1831 and Weaton v. Peters


Bill of Rights of 1789 (ratified 1791)

        James Madison and the 12 proposed amendments

        Madison: states should be required to guarantee certain rights

        House vs. Senate: controls on the federal governemtn but NOT on state governments in vital civil liberty areas

        Significance of Gitlow v. New York (1925)


The conflict over civil liberties

        International affairs

        The Civil War

        The feminist movement

        The growth of the publishing industry

        Post-Civil War moral crusades

White male establishment vs. aliens, women, slaves


Alien and Sedition Act of 1798

        The Naturalization Act

        The Alien Act

        The Alien Enemies Act

        The Sedition Act


Four major First Amendment crises

        The period of the Alien and Sedition Acts

        The pre- and post-Civil War period

        World War I

        World War II

And … ?


Private libel

        All defmation statues are at the state level

        The defamation of private persons is excluded from the protection of the First Amendment


Religio-moral heresy

        Early in the Republic, assurances of freedom of speech and separation of church and state ad little deterrent effect on pious prosecutors, judges and jurors


Federal obscenity statues

        1842: Section 28 of the Tariff Act

        1865: Postal Act (section 16)

        1873: Comstock Act and Anthony Comstock


Constraints upon media

        1834: Wheaton v. Peters – copyright law is whatever the Congress says it is

        What may be sent through the mail

        Technological innovation


Constraint of time, place, manner

        1897 – Davis v. Massachusetts (til 1939)



Chapter 3

Political Heresy:

Sedition in the United States Since 1917


Why is the chapter important?

“The absence of seditious libel as a crime is the true pragmatic test of freedom of speech.” – Harry Klaven Jr.


This chapter deals with the Supreme Court’s great debate from 1919 (Schenck) to 1969 (Brandenburg) over freedom of expression for political dissent:

From bad tendency doctrine to a more liberal incitement rule


Turner v. Williams, 1904

The tendency of (John Turner’s) views, not actual action or incitment


The doctrine of bad tendency was the predominant judicial approach in First Amendment cases up to 1919


How has First Amendment evolved since 1919?

Molded by the Supreme Court involving decision concerning seditious libel …


… over two periods:

1. Schenck v. United States, 1919 (clear-and-present-danger test is proposed) to the Smith Act of 1940

2. The Smith Act prosecutions following WWII to the present




Bad tendency doctrine still overrules CAPD

CAPD: government must PROVE speech produces a danger BOTH clear and present

CAPD not used to reverse a conviction prior to 1940


Yates v. United States (1957)

Moves away from bad tendency and toward CAPD


Brandenburg v. Ohio (1969)

Supreme Court decisively rejects bad tendency and adopts an incitement test (before speech/expression can be supressed, the government must prove incitement