Freedom of Speech in American Constitutionalism Today

By Howard Schweber

Grounded in the First Amendment to the U.S. Constitution, freedom of speech has become much more than a legal principle, it has become an American cultural touchstone. Ask an American primary school child to identify an important right and the odds are 10 to 1 she will answer “freedom of speech.” And, like every other American cultural touchstone, free speech is front and center in the ever more bitter culture wars that define current American political identity.

Political conservatives rail against “cancel culture” and insist that free speech goes with unregulated markets, gun rights, and religious exemptions from legal obligations as part of the core of American exceptionalism (the idea that the United States is an historically unique polity that has everything to teach to and nothing to learn from others). They point to progressive efforts to introduce raceconscious curricula in schools, prevent the invitation of speakers to college campuses based on their views, impose vaccination requirements and marginalize purveyors of misinformation as evidence of hostility to freedom of speech.

Political progressives, conversely, point to efforts to ban the teaching of uncomfortable subjects such as critical race theory, the removal of books from libraries, and the laws in numerous states that impose penalties on individuals and businesses who participate in politically motivated boycotts (specifically of Israel) as evidence that is it conservatives who seek to silence dissenting voices. One thing that drives this dynamic is the sense that whoever can invoke “freedom of speech” has the ideological high ground in American politics; perhaps for that reason arguments over the legal status of religious practices, corporate influence and politics, and political gerrymandering are all presented as free speech issues.

For a topic that is so central to Americans’ political self-conception, it is remarkable how little freedom of speech is studied or understood by most Americans, including elected representatives, media pundits, and even university professors.

There are three key things that most Americans do not understand about our constitutional tradition of free speech protection:

First, freedom of speech in its robust, relatively (compared to other countries) libertarian form is a recent invention.

Specifically, prior to 1969 the U.S. Supreme Court saw no problem with putting people in prison for “mere advocacy” of a future communist takeover of the United States. In 1969 the liberal Warren Court for the first time declared that such advocacy was protected political expression.

In later cases over the following decade the same Court discovered First Amendment protections for other forms of speech, including libel directed at public figures, artistic expression, the use of indecent language in public, expressive conduct of various kinds (as in the boycotts mentioned earlier), and a host of other expansive applications of the concept.

is a professor of American Politics and Political Theory at the University of Wisconsin Madison, and the 2011 Fulbright-Flinders Distinguished Chair.

He teaches courses focusing on constitutional law and legal and political theory, and has authored numerous books, articles, essays and chapters on Constitutionalism, law, the First Amendment, and a variety of related topics.

His current areas of research include comparative constitutionalism and democratic theories of representation.

This is the period that establishes the exceptionally robust, libertarian version of freedom of speech that American law is usually understood to protect. By contrast, courts in other countries including Australia have found strong protections only for political speech, and even there only for political speech that does not threaten basic shared values.

In other words, what most Americans think of as a cherished historical tradition of speech rights is in fact less than 50 years old, was the product of highly controversial judicial decisions that were politically unpopular at the time, and has been contested since its inception.

A second misconception has to do with the scope of these free speech rights.

For all the rhetoric of freedom of speech as “the indispensable condition of nearly every other form of freedom” (Benjamin Cardozo), the fact is that even after the 1970s, in the American constitutional and legal tradition as in all other systems there is an enormous amount of speech that is treated as “unprotected.” This means that governments at various levels in the federal system may freely regulate expression in various ways up to and including its criminalization. Laws against threats, blackmail, fraud, treason, and criminal conspiracy are some obvious examples, but there are many others.

Intellectual property protections involve restrictions on expression, as do laws against “trade libel” (disparaging commercial products), false or misleading advertising, association with organizations identified as supportive of terrorism, workplace harassment, and the infliction of emotional distress.

These “content restrictions” are perfectly consistent with the First Amendment.

The idea is that while we begin with a basal assumption that speech is protected, and the burden is then on the government to show that the speech it wants to regulate is in a specifically identified category that is outside the scope of the First Amendment.

In American law there is probably no form of conduct subject to so many types of regulation as expression in ways that are largely acknowledged as entirely acceptable. In many ways, in fact, American law is less protective of expression than other jurisdictions, particularly where economic interests are involved.

The problem becomes determining the limits of these categories, and whether a particular instance of regulation goes too far (is “overbroad”) such that it ends up limiting protected as well as unprotected expression.

A good illustration is the contemporary debate over “hate speech”. There is no precise and technical definition of hate speech, but as a Supreme Court Justice Potter Stewart once said about pornography, “I know it when I see it”. (Stewart was speaking of the novel Lady Chatterly’s Lover, and the rest of the quotation was “and this is not it”.)

“Hate speech” is not the name of a recognized category of unprotected speech, so a law banning “hate speech” would be unconstitutional. But hate speech frequently includes threats, harassment, incitement to violence, and excessive provocation, all of which are recognized unprotected categories.

So, on the one hand, it is correct to say that the First Amendment does not permit a law against hate speech, but it is quite wrong to say that all hate speech is protected by the First Amendment.

An obvious question about the concept of unprotected categories is, who gets to decide what these categories are, and can they change over time? American courts have been extremely resistant to the idea of new unprotected speech categories, in part based on a contemporary commitment to historicism often referred to as “originalism”.

One consequence is that where radically new contexts emerge, as in the creation of the internet, American free speech doctrines can seem woefully inadequate to deal with new challenges. Contemporary debates over communications-based corporations like Facebook and Google reflect this uncertainty.

A third misconception is that I can exercise my First Amendment right to free speech anywhere and any time.

In fact, even where a category of expression is protected, as in the case of political protest (which is often referred to as “core protected speech”), the government is free to impose “neutral time, place, and manner restrictions.”

The limits of these kind of rules depend on the “forum” in which they take place. In traditional public forums such as parks and sidewalks, rules against overnight occupation, or noise restrictions, or rules against blocking traffic or holding parades without a permit are all perfectly acceptable so long as they apply to everyone equally.

The situation becomes more complicated in what are called “limited public forums,” spaces that the government opens up in order to allow private expression.

An example that is much in recent American news is a school board meeting that is open to the public.

The school board is perfectly free to insist that only town residents participate, or that only comments germane to the subject at hand will be entertained—the school board is not required to allow even parents in the community to use the meeting time to extoll the virtues of their favorite baseball team or presidential candidate.

These supposedly neutral restrictions on the time, place, and manner of expression can easily become an excuse for preventing the expression of dissenting views.

Governments at the State and local level, in particular, have proven to be ingenious at pushing the limits of their authority to limit speech. Protests may be allowed but only in designated protest zones located far from the public eye; city and state governments have successfully asserted exceptions where public employees are involved; educational institutions have used very expansive notions of what constitutes disruption to try to shut down speech critical of the institution.

At the same time, provocateurs and what is sometimes called the “political grievance complex” (a takeoff on the “militaryindustrial complex”) have found it both financially and politically profitable to push the boundaries of protected categories of expression to their limits.

It is sometimes difficult to decide whether a particular action is an exercise of free speech or an attempt to limit that exercise.

“Cancel culture” is a good example: when individuals on social media publicize an offensive statement and call for that individual to be barred from professional activities, is that an exercise of free speech or an attempt to punish the expression of a viewpoint?

The answer, in many cases, is “both”.

The fact that many or even most Americans do not understand these three aspects of First Amendment free speech principles—that it is a recent and contested concept, that there are a wide range of unprotected speech categories, and that even protected speech is subject to restrictions—has arguably led to a crisis in American constitutionalism. One way to think about the state of free speech in America is that it mirrors the state of American politics generally.

In their book How Democracies Die, Steven Livitsky and Daniel Ziblett talk about the need for “forbearance,” the idea that if political actors manipulate the norms of a political system to their advantage eventually those norms collapse, and with them the institutions they support.

When teaching about freedom of speech, I like to tell students that if everyone exercised their free speech rights completely all the time, those rights could not exist because life would be intolerable.

A combination of a weaponized language of rights and a lack of understanding of their limits poses a serious danger to the very people those rights protect. Today there is nowhere that danger is more evident than in the United States.