In many respects, free speech is currently under attack in America. In the past several years, there have been several instances of protests against certain speakers on college campuses. In today’s politically polarized society, many people, particularly young Americans, have little desire to be exposed to any opinions contrary to their own. However, free speech is one of the cornerstones of our democracy, as it was enshrined as a fundamental right in the First Amendment. We cannot and should not allow free speech to be restricted because it is one of our most fundamental freedoms as Americans. Therefore, using several key Supreme Court cases as evidence, this paper will argue that limitations on free speech and free expression in America should be as minimal as possible at all levels of society.

In a democratic society with millions of people, most of us will at some point encounter someone with whom we disagree. Some of these people may even hold outrageous or deeply offensive opinions. However, even individuals with the most misguided of opinions should have the right to speak their mind freely in this country. The Supreme Court affirmed this principle in the 1969 case Brandenburg v. Ohio. This case revolved around one of the most hateful and despicable groups in American history, the Ku Klux Klan. One of its leaders in Ohio, Clarence Brandenburg, was arrested for violating the Ohio Criminal Syndicalism Act of 1919, which made it a crime to advocate for committing a crime in the name of political reform. He had filmed and broadcasted several KKK meetings in order to spread word about his cause. In a unanimous decision, the Court ruled that the aforementioned state law was unconstitutional because a state cannot outlaw such speech unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In this situation, Brandenburg did not incite lawlessness by disseminating his films, so he was within his Constitutional right to free speech in doing so.

At first glance, it is very easy to disagree with this decision. It does not seem logical to give the Ku Klux Klan, a group that only exists to promote hatred and racism, the right to freely promote their dangerous agenda. Supporting such a measure seems to go against the shared American values of diversity and inclusion for all people. However, there is a reason that every American should support this decision and other similar decisions that supposedly go against our core values. Another value that Americans hold dear is free speech. We treasure the fact that we have the ability to speak our minds freely without fear of government interference. We often forget that the Constitution does not grant an exception to free speech for people we disagree with. Every American has the right to express themselves through their speech no matter how misguided, offensive, or hateful their opinions may be. If we desire to have free speech for ourselves, then we must accept the fact that everyone else must also be given that right. This is the position taken by the Court in the Brandenburg, and it is the position that every American should be willing to take because we have the privilege of living in a free society.

The conflict surrounding free speech and free expression goes even further than issues of hate speech. Political speech can often become just as offensive to some groups of people, which was the case in the 1989 decision in Texas v. Johnson. The issue centered on the contentiousness of flag burning, an activity which understandably causes a great deal of anger for many Americans. During a 1984 protest against the policies of then-President Ronald Reagan, Gregory Johnson burned an American flag as a symbolic gesture of anger against the United States government. Unfortunately for him, he was arrested and charged with “desecration of a venerated object in violation of Texas law and disturbing the peace.” However, the Court ruled that his conviction was unconstitutional, because, similar to the previous case, his actions fell under his First Amendment right to free expression. Once again, the Court did not find a compelling reason to outlaw such behavior even though it was offensive to many people.

This decision illuminates another point regarding the importance of minimizing free speech restrictions. In the first case, Brandenburg was clearly disseminating hate speech, and the Court found that such an action was acceptable. In this case, Johnson’s choice to burn the American flag was not necessarily hateful, but it could easily be perceived in such a way. For many Americans, our flag is much more than a collection of stars and stripes. It symbolizes freedom, sacrifice, bravery, and many other attributes that we hold dear. Therefore, the thought of a fellow American intentionally destroying such a sacred object is abhorrent to many. For some, it may even represent disrespect toward the men and women who lost their lives defending our freedom.

However, the fact that an action offends us does not give us the right to stop someone from committing that action. As Justice William Brennan wisely stated in his opinion, “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.” Any American is welcome to associate the flag with whatever concept he or she wants. They must also be prepared for the fact that others may not see the flag in that way and may even use it as a symbol of protest. In a free society, everyone must be given the right to express themselves however they choose.

This fundamental right to political speech must be allowed at every level of society, including the corporate level. Many Americans are uncomfortable with the idea of corporations being allowed to spend vast amounts of money in order to get certain politicians elected into public office. In the highly controversial 2010 case Citizens United v. Federal Elections Commission, the Court ruled that corporations can use soft money to support or oppose a candidate during an election campaign. The organization in question, Citizens United, had distributed a film to undermine Hillary Clinton’s campaign to be the Democratic nominee for the presidency. A majority of the Court decided that Citizens United was within its rights in doing so because, as Justice Anthony Kennedy stated, “Political speech does not lose First Amendment protection ‘simply because its source is a corporation.’” The importance of protecting political speech was one of the guiding factors behind this decision.

The opposition to this decision is understandable. As a matter of principle, it does not seem right that a corporation could have the power to put millions of dollars into an election as a way to influence the outcome. Such an idea seems to undermine our principles of democracy and fairness. However, it is important to remember that corporations are ultimately run by people, and those people have a right to their opinion and a right to do what they please with their resources. If they wish to support a certain political candidate with their resources, the government should have no business in trying to stop them.

In addition, that corporations can spend money to support certain candidates does not prevent other Americans from doing the same. Even though the average American does not have anywhere near the amount of money as a corporation, we still have the right to support any candidate we choose through our money, our voice, and our vote. Therefore, we cannot exclude some people from the right to donate their money simply because they have a greater amount of money to give. Ultimately, elections are decided by the voters, and no one gets extra votes because of how much money they have. Political speech is the most protected form of speech for a reason. It is necessary to keep the government accountable to the people, which is why it must be protected at all levels of society.

In summary, free speech is one of the cornerstones of American society because it is perhaps the most vital of freedoms ensured by the Constitution. In all three of the cases discussed here, the Supreme Court ruled for fewer restrictions on speech, even when the speech in question was hateful or offensive. In a country with more than 300 million citizens, there will inevitably be disagreements on a variety of issues. While we do not have to agree with each other on everything, all Americans should be united in agreeing that everyone should have the right to freely speak their minds without fear of repercussions. If we allow free speech to be restricted for some individuals, we will enter a dangerous path that can only lead to even more restrictions down the line. The Supreme Court has correctly ruled in favor of free speech on numerous occasions, and it is up to the American people to continue to defend the rights of our fellow citizens to freely express themselves in the years to come.

 

Tim Bynion
Political Science