A brief summary of laws and legal rulings regarding free speech
The Declaration of Independence was ratified in 1776, guaranteeing life, liberty, and the pursuit of happiness. The Revolutionary War–which began in 1775–was finally over in 1783. After a few years of working out the details, the United States Constitution was ratified in 1788, outlining the setup, rights, and responsibilities of state and federal governments. In
1791, the first amendment to the Constitution was adopted.
“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.”
Interpretation of the 1st Amendment
Under the framework of the U.S. Constitution, Congress makes laws and the judicial branch interprets them. In the early days of the country, courts interpreted the impingement of free speech clause very narrowly. Only the federal Congress was prevented from encroaching on these personal freedoms.
In 1859, British philosopher John Stewart Mills published a book called On Liberty, which is widely credited as being the most influential in the legal interpretation of the 1st Amendment free speech clause. Mill strongly believed that any silenced thought could contain an important element of truth that the progress of society could benefit from. He summarized what he felt to be the only ethical censoring of speech and thought as the "harm principle":
“That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”
Supreme Court Justice, Oliver Wendell Holmes, Jr., in a 1919 opinion expanded on this idea by challenging courts to consider whether words used are used under circumstances and in a way that creates a clear and present danger.
Raphael Cohen-Almagor, an Israeli-British political theory academic describes it this way...
“Any speech, which instigates (in the sense of meeting the four criteria of content, manner, intention, and circumstances) to cause physical harm to certain individuals or groups, ought to be curtailed.”
Over time, the 1st Amendment has been established as applicable to federal, state, and local governments. Because health licensing boards are state government entities, they cannot limit the speech of licensees unless it is inciting imminent physical harm.
References:
Cohen-Almagor, R. (1993). Harm principle, offense principle, and the Skokie affair. Political Studies, XLI, 453-470.
Image credit: Designed by rawpixel.com / Freepik
Comments