William_T._Bianco,_David_T._Canon]_American_Polit

118 Chapter 4Chapter 4 || Civil LibertiesCivil Liberties

history, freedom of speech and freedom of the press were not strongly protected.

Only recently have the courts developed a complex continuum ranging from strongly

protected political speech to less protected speech.

Standards for Protection The basis for the continuum of protected speech is rooted

in the content of the speech. The Supreme Court has interpreted the law to mean that

content-based regulation of speech is not permissible (unless it falls into one of the

categories of exceptions we outline later). For example, the Court struck down a local

ordinance that banned picketing outside of schools except for labor picketing.^42 This

ordinance was content-based regulation because it favored one form of speech (from

labor unions) over others. Such regulation is subject to the strict scrutiny standard of

judicial review, which means the regulation must be narrowly tailored so that it is the

least restrictive on an individual’s fundamental right to free speech and the government

must demonstrate a compelling state interest to curtail the speech. In most cases, such

strict scrutiny by the courts means that the speech will be protected and the regulation

will be struck down. If a regulation is content neutral and does not favor any given

viewpoint over another, then it is subject to the less demanding intermediate scrutiny

standard. This means that the government must only demonstrate a substantial interest

in curtailing the speech, the interest must be unrelated to the content of the speech, and

there must be alternative opportunities for communication.^43

Political Speech Freedom of speech got off to a rocky start when Congress passed

the Alien and Sedition Acts in 1798. The controversial Sedition Act made it a crime to

“write, print, utter or publish... any false, scandalous and malicious writing or writings

against the government of the United States.” Supporters of the acts claimed they were

necessary to strengthen the national government in response to the French Revolution,

but in reality they were an attempt by the governing Federalist Party to neutralize

the opposition—the Democratic-Republican Party. As many as 25 people, mostly

newspaper editors, were tried under the law and 10 were jailed, including Benjamin

Franklin’s grandson. The outcry against the laws helped Thomas Jefferson win the

presidential election in 1800. Jefferson pardoned the convicted editors, Congress

repealed one of the acts in 1802, and the other acts were allowed to expire before the

Supreme Court had a chance to rule that they were unconstitutional.

World War I prompted the harshest crackdowns on free speech since the Sedition

Act of 1798. The most important case from this period involved the general secretary of

the Socialist Party, Charles Schenck, who opposed U.S. involvement in the war. He had

printed a leaflet urging young men to resist the draft. Schenck was arrested under the

Espionage Act of 1917, which prohibited “interfering with military or naval operations,”

including the draft. He appealed all the way to the Supreme Court, arguing that the First

Amendment permitted him to protest the war and to urge others to resist the draft, but

the Court sustained his conviction, noting that free speech is not an absolute right:

The most stringent protection of free speech would not protect a man in falsely shouting fire in

a theatre and causing a panic.... The question in every case is whether the words used are used

in such circumstances and are of such a nature as to create a clear and present danger that

they will bring about the substantive evils that Congress has a right to prevent.^44

This clear and present danger test meant that the government could suppress speech

it deemed dangerous (in this instance, preventing the government from fighting the

war). However, critics of the decision argue that Schenck’s actions were not dangerous

for the country and should have been allowed.^45

Justice Oliver Wendell Holmes, author of the Schenck decision and the clear and

present danger test, had a change of heart and dissented in a case later that year that

strict scrutiny

The highest level of scrutiny the

courts can use when determining

whether a law is constitutional. To

meet this standard, the law or policy

must be shown to serve a “compelling

state interest” or goal, it must be

narrowly tailored to achieve that goal,

and it must be the least restrictive

means of achieving that goal.

intermediate scrutiny

The middle level of scrutiny the

courts can use when determining

whether a law is constitutional. To

meet this standard, the law or policy

must be “content neutral,” must

further an important government

interest in a way that is “substantially

related” to that interest, and

must use means that are a close

fit to the government’s goal and

not substantially broader than is

necessary to accomplish that goal.

clear and present danger test

Established in Schenck v. United

States, this test allowed the

government to restrict certain types

of speech deemed dangerous.

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