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These articles, "Can We Take Our Freedoms For Granted" by Richard Crilley
of the Bill of Rights Foundation and "Freedom of Expression," briefing
paper #10 of the American Civil Liberties Union, offer lucid and well-
documented insights into the nature, history and practical aspects of
the freedoms we enjoy (and some which we don't) as American citizens.

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              CAN WE TAKE OUR FREEDOMS FOR GRANTED?

                        by Richard Criley
                    Bill of Rights Foundation

         "Congress shall make no law . . .
         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."
                     First Amendment to the
                     U. S. Constitution (1)

We assume that the United States is dedicated to individual freedoms;
it's part of our national identity.

But as individuals, we seldom appreciate our constitutional freedoms
until we are unjustly treated.  An abusive police officer, an unfair
judge, an unresponsive tax auditor, or some other person in a position
of authority can vividly show us how easily our rights can be trampled.
Then we are outraged and want to do something to defend our fragile
freedoms.


             FREEDOMS FOR ALL--OR FREEDOMS FOR NONE

What can we do?  Our system of individual rights depends upon their
availability to *everyone* -- including some people whose beliefs we may
not like.  But if the constitutional rights of any unpopular group or
minority are weakened by a decision of the Supreme Court or an Act of
Congress, we will all lose some of our freedom in the process.

The First Amendment declares that "Congress shall make no law . . .
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."  This protects us from an abusive government
policy against disagreement or dissent.  The colonists wrote it after
their treatment under repressive policies of the British, to guarantee
freedom in America.

The First Amendment guarantees freedoms that are both individual and
collective.  If the *individual* is not free to express his or her
opinion, not only is that individual deprived of a basic freedom, but
the rest of society is deprived of the right to hear all sides of a
controversial question.

Without meaningful debate, democracy is reduced to a hollow shell.  The
wisdom of any decision that is translated into governmental action
depends on the public's access to all the pertinent facts and opinions.
When government propaganda replaces free debate, the consent of the
governed has been engineered, and democracy does not properly function.

Under the Constitution, the *people* are the ultimate authority.  The
preamble to the Constitution declares, "We, the People of the United
States . . . do ordain and establish this Constitution.  . . ." This
empowerment of the people depends upon our right to know what the
government is doing in our name.  If the public cannot discover the
truth because the government suppresses opinion or conceals relevant
facts (calling it security), we citizens lose control of our democracy
and take a step toward dictatorship.  The rights of all are diminished.

Freedom of expression and openness of government are closely related.
Both are critical ingredients of democracy.  Let us take a look at
what's happened to our freedoms since the end of World War II.


          THE NUCLEAR ERA--A THREAT TO LIFE AND FREEDOM

Millions of Americans are aware of the threat of nuclear war; but few of
us recognize how the nuclear era placed our democratic institutions in
jeopardy.

The world entered a new era when our atomic bombs were dropped on
Hiroshima and Nagasaki.  For the first time in history the weapons of
war carried the potential of destroying all human life.  As Albert
Einstein said, "The unleashed power of the atom has changed everything
except our modes of thinking, and thus we drift toward unparalleled
catastrophes."

         U.S. Government reliance upon nuclear
         weaponry as a dominant element of foreign
         and domestic policy, while propounded as
         a defense of democracy, is in fact its
         greatest threat.  Four decades of
         adherence to this policy has
         fundamentally altered the nature of our
         constitutional democratic process and
         poses a paramount threat to civil
         liberties. . . . (2)
                American Civil Liberties Union
               1983 Biennial Conference Report

Instead of the peace that we hoped would follow the Allied victory over
Hitler and the Nazi ideology, the U.S. entered a cold war with our
wartime ally, the Soviet Union.  At first only the U.S. possessed
nuclear weapons, and our national security system was focussed on
guarding our "atomic secret."  But given the universality of scientific
knowledge, the "atomic secret" was inevitably unraveled by Soviet
scientists and military planners who created and exploded their nuclear
bomb a few years later.  The U.S. government, however, encouraged the
belief that the Soviets had figured out the power of the atom only
because somebody stole our "atomic secret."  (3) In the political and
anti-Soviet hysteria of the 1950's, political dissent in America was
widely equated with disloyalty and treason.

Popularly known as the "McCarthy era," the period actually began at the
end of World War II, before Senator Joe McCarthy rose to national
prominence in 1950, and it continued long after his death in 1957.  (4)
This political era was the product of many factors.  U.S. corporations
sought to take advantage of the post-war pre-eminence to shape the
emerging structures of the third world to their liking.  (5) The
political center shifted to the right following the death of Franklin
Roosevelt.  The news media adjusted to the new climate and in retrospect
appears to have been easily manipulated by government agencies.

Congress, dominated by the 1950's hysteria of "anti- Communism,"
supported the development of an unprecedented peacetime military
establishment, a network of repressive government institutions, the
growth of right-wing blacklisting and witch-hunting of alleged traitors.
The Supreme Court retreated from the Bill of Rights.  Many labor unions,
liberal organizations and other independent groups which had
traditionally defended civil liberties retreated in the 1950's to avoid
being branded "subversive."  Some groups even purged their membership
ranks of dissenting voices.

Among the many forces which contributed to McCarthyism, two government
institutions played a leading role in repressing the First Amendment
right to dissent.  One, the House Un-American Activities Committee,
operated in the spotlight of media attention.  The second, the Federal
Bureau of Investigation, performed its most damaging work under cover of
secrecy.

         "The principle at stake was the First
         Amendment, the right of people not to be
         punished for dissenting beliefs. And so I
         would say that one of the first lessons
         of the '50's is the need for serious
         national First Amendment education: what
         it is, how to use it, how to know when it
         is under attack, and how to defend it.
                    Victor Navasky, Editor,
                    The Nation, at the
                    "No More Witch-Hunts" rally,
                    Chicago, 1981 (6)


          HUAC--HIGH COURT OF THE POLITICAL INQUISITION

The headline-hunting House Un-American Activities Committee (HUAC) was
officially a legislative committee of Congress.  But contrary to
constitutional principles, HUAC actually functioned as the chief public
prosecutor and judge of political behavior and heresy.  HUAC subpoenaed,
denounced, and punished the individuals and groups it claimed were
guilty of being "un-American".  It was the role model for similar
investigative committees which sprang up in the U.S.  Senate and state
legislatures across the country.  HUAC's voluminous published hearings,
reports and catalogues of "subversives" became an official index of
those condemned to be ostracized and blacklisted.  Blacklisted
individuals found themselves unable to get work and sometimes housing,
because of accusations someone had made about their political beliefs or
activities.

Many thousands of American were called before HUAC or another of the
investigative committees as "unfriendly witnesses" to be publicly judged
and pilloried.  Persons named by informers suffered disruption of their
lives and careers.  Even more important, fear of being branded drove
millions of citizens away from political activity and open expression of
their opinions.  These "witch-hunt" victims were not charged with legal
offenses; they were condemned and punished without regard to
Constitutionally mandated rules of evidence or rights to due process.
(7)


                     AMERICA'S SECRET POLICE

The Federal Bureau of Investigation (FBI) abused its mandate for law
enforcement in the 1940's, 50's 60's and 70's.  Secretly it engaged in
destroying those political views and opinions which FBI Director J.
Edgar Hoover did not personal approve.  With its awesome staff of
disciplined agents, the FBI organized a vast network of political spies
who infiltrated thousands of political, religious and civic
organizations.  It trained and coordinated similar operations by other
law enforcement agencies at every level of government.

In the City of Chicago alone, from 1966 to 1976, the FBI employed (at a
cost of $2.5 million) over 5,000 secret undercover informers to operate
within civic and political organizations which were violating no laws.
For 16 years (1960 to 1977), the FBI employed 1,600 informers to
infiltrate *one* small political group, the Socialist Workers Party (at
an estimated cost of $26 million).  (8) Such was the national pattern.

The information gathered by the FBI's informant network was supplemented
by illegal wiretaps, letter openings, burglaries of office files, secret
examination of bank records, clippings from newspapers, and physical
surveillance.  At the FBI and other government offices, vast files of
organizations' political policies and individuals' opinions were
catalogued according to their degrees of presumed "dangerousness" in the
FBI's secret "Security Index."  Thousands of individuals in the FBI
Index were targetted for round-up and detention in case of a "national
emergency," although it is still unclear what constituted a "national
emergency."  The FBI created this detention list in the 1940's, even
before legislation was passed providing any statutory authority (the
Emergency Detention Act of 1950).  (9)

         "COINTELPRO is the FBI acronymn for a
         series of covert action programs directed
         against domestic groups....Many of the
         techniques used would be intolerable in a
         democratic society even if all of the
         targets had been involved in violent
         activity, but COINTELPRO went far beyond
         that...the Bureau conducted a
         sophisticated vigilante operation aimed
         squarely at preventing the exercise of
         First Amendment rights of speech and
         association, on the theory that
         preventing the growth of dangerous groups
         and the propogation of dangerous ideas
         would protect the national security and
         deter violence.
               Final Report of the Senate
               Select Committee to Study
               Governmental Operations with
               respect to Intelligence
               Activities - Book Three, Staff
               Report, April 23, 1976.  (10)


                 THE FBI NEUTRALIZATION PROGRAM

Collecting information was only the starting point of the FBI's
"neutralization program."  One segment of this program, with the code
name of COINTELPRO, became a major scandal when its existence was first
revealed to Congress in 1976 following the Watergate investigations.
Established to injure and discredit certain targetted advocates of
social change, it paid special attention to those who voiced criticisms
of the FBI.  According to the Congressional Committees investigating
COINTELPRO, the program was an illegal and unconstitutional abuse of
power by the FBI.

When the Freedom of Information Act was amended in 1974 to remove a
special exemption that had kept the FBI's records secret, it opened the
door to an unending stream of details of FBI misconduct.  Hundreds of
thousands of pages of documents now reveal the nature of the FBI's
"neutralization" programs directed against individuals in such
organizations as The Southern Christian Leadership Conference, the
National Committee Against Repressive Legislation, the National Lawyers
Guild, and Students for a Democratic Society, as well as numerous other
civil liberties, civil rights, peace, labor and social action groups.

With intimate knowledge of the organizations' internal structures,
personalities, plans and projected publications, the FBI could
effectively disrupt and damage target groups.  Counter- demonstrations
were initiated, encouraged and coordinated by the FBI.  Speaking tours
and meetings were disrupted, anonymous "poison pen" letters were
selectively mailed to discredit leaders and stimulate factional
disputes.  Forged leaflets were distributed in an effort to disrupt
activities and create confusion.  Sources of organizational income dried
up as contributors were harassed.  Divisive policies and factional
strife were nurtured by infiltrators acting as agents provocateurs.
(11)

Working secretly with HUAC and its counterparts, the FBI provided names
of individuals to be attacked in committee hearings, supplied informer
witnesses to "name names," and laundered secret information from its
files for public dissemination.  With this supposedly "public source"
information, the FBI conducted a massive campaign to manipulate public
opinion through secret contacts with a nationwide network of columnists,
commentators, editors, reporters, and radio/TV producers.

Much of the FBI record is still unavailable to the public, but from what
has been released, it is clear that the total effect of the FBI's
political interventions on our national life was considerable.  Many
political and civic organizations did not survive the FBI
"neutralization" treatment; most were seriously weakened.  The FBI
undoubtedly did succeed in leaving its imprint on public opinion,
chilling the free expression of ideas, distorting public perceptions,
changing the nature of public debate and influencing the course of
national policies.

During the long reign of FBI Director J. Edgar Hoover, the FBI
functioned as a law unto itself.  So great was Hoover's prestige and
power that no President dared to replace him; no Attorney General
(theoretically Hoover's superior) could exercise control or supervision.
Hoover's special files on the personal lives of government leaders,
which he kept in his private vault, were an effective "insurance policy"
against political opposition to the FBI.  (12) Few Senators or
Representatives dared express criticisms or question FBI appropriations.
With Hoover's death in 1972, the FBI was no longer an impregnable
bastion of power, and Congress did begin to exercise some Control over
the agency.


                   A REBIRTH OF FREEDOM

The post-Watergate years witnessed a rebirth of constitutional freedom.
After strengthening the Freedom of Information Act in 1974, Congress
re-instituted its oversight (previously non-existent) over intelligence
agencies.  HUAC and its counterpart, the Senate internal Security
Subcommittee, were abolished.  Repressive laws were repealed or made
inoperative.

New guidelines governing the FBI were issued by Attorney General Edward
Levi (the "Levi guidelines") seeking to limit the FBI's investigative
power to legitimate law enforcement matters.  (13) Rules for secrecy
classificatiton of government documents were liberalized, recognizing
the public's right to be informed.  We seemed to be awakening from the
long political nightmare of the McCarthy/HUAC/Hoover era.

                 RETURN TO REPRESSION IN THE 80s

In the 1980s, however, the trend toward greater freedom is being
reversed once again.  In December 1981, President Reagan authorized the
Central Intelligence Agency (CIA) to engage in domestic spying
again, (Executive Order 12333) despite Congress's original intent to
limit the CIA to intelligence collection abroad.  In April 1981, the
President established new rules for classification of documents,
severely limiting the right of public access, emphasizing "security"
interests in more secrecy, making declassification more difficult, and
permitting re- classification of documents that had previously been
released to the public.  Since classified documents are exempt from the
Freedom of Information Act, President Reagan's order has greatly reduced
the amount of information previously available to citizens.

         "...it is axiomatic that individual
         liberties are secondary to the
         requirements of national security and
         internal civil order."
               "Mandate for Leadership,"
               Heritage Foundation report
               presented to President
               Reagan's transition team. (14)

For the first time ever, in June 1981, Congress imposed criminal
penalties for publishing information already made public, with the
Intelligence Identities Protection Act.  In January 1983, investigative
reporters, historians and other researchers were priced out of the
information market, with new administrative guidelines for Freedom of
Information Act requests that greatly increased fees for obtaining
documents.

In March 1983, the President issued a directive (National Security
Decision Directive 84) to stop unauthorized leaks of information from
government officials.  In domestic security and terrorism investigations
it required that government officials sign an agreement that never in
their lifetimes would they write or speak publicly about their
government experience, without obtaining prior clearance.  Willingness
to take lie detector tests when requested was made a condition of
government employment.  This Presidential act extended controls over
freedom of speech (previously applied only to CIA personnel) to all
executive agencies.  Vehement protests from both the House and the
Senate have presently forced a temporary suspension of the order.  (15)

In March 1983, new guidelines for the FBI became effective, rescinding
the earlier Levi guidelines.  They permit the use of informers and other
intrusive means even without a reasonable cause to believe that any
criminal violation is taking place.  Mere speech, without evidence of
criminal conduct, will be enough to trigger investigations in areas
legally protected by the First Amendment.

In April 1984, President Reagan proposed an "anti-terrorism" bill (S.
2626/H.R. 5613) which could imprison Americans for ten years for
supporting or "acting in concert with" groups or nations designated as
"terrorists" by the Secretary of State.  Representative Don Edwards
(Democrat, California), chair of the House Judiciary Subcommittee on
Constitutional Rights, observed that under the proposed law "the
Secretary by an edict can almost create the crime himself."  (16) Courts
would be forbidden from questioning the validity of the Secretary's
designation.  On the other hand, the bill would exclude from prosecution
activities "conducted by officials of the United States government or
their agents"--such as the 1984 mining of Nicaraguan harbors or other
"authorized" terrorist acts against people in other countries.

According to the American Civil Liberties Union, the Reagan
"Anti-Terrorism Bill" is "wholly unnecessary, since current law
[already] prohibits bombing, sabotage, kidnapping, and other crimes
which may be committed by terrorist organizations or factions."  (17)

But the proposed legislation would create a new political crime:
opposing government policy in such areas as Central America or the
Middle East.  Such nonviolent acts as sending school books to Nicaragua,
or voicing support for a negotiated settlement in El Salvador, would be
made criminal.  Because of strong opposition in Congress, this
legislation has not yet been passed.

    WHAT WILL THE FUTURE BRING--DEMOCRACY OR A POLICE STATE?

With these disturbing developments in the 1980s, all of the components
are in place for a return to a new era of coordinated repression of our
freedoms.  Our democracy has survived some difficult tests before, not
solely because of the vigilance of a vast number of our citizens, but
because of some fortunate turns of history.

President Eisenhower appointed a Supreme Court Chief Justice who was not
previously noted for his support of civil liberties, but Earl Warren
became an outstanding champion of the Bill of Rights and blunted the
impact of McCarthyism in the mid-50s.  HUAC leaders made many mistakes
in the 1940's and 1950's, becoming entangled in criminal violations
which contributed to discrediting the Committee.  President Nixon
(perhaps foolishly) kept secret tapes and they provided the evidence of
"high crimes and misdemeanors" that ensured his impeachment, forced his
resignation, and exposed the misuse of government agencies.

Freedom loving Americans may not be so lucky again.  Our alertness to
events, our opposition to every step taken that would undercut our
constitutional rights, our thoughtfulness in the voting booth and our
courage to resist oppression will determine whether or not we remain a
democratic society or adopt an American version of a police state.

         "Our First Amendment was a bold
         effort...to establish a country with no
         legal restrictions of any kind upon the
         subjects people could investigate,
         discuss, and deny. The Framers knew,
         better perhaps than we do today, the
         risks they were taking. They knew that
         free speech might be the friend of change
         and revolution.  But they also knew that
         it is always the deadliest enemy of
         tyranny."
               U. S. Supreme Court Justice
               Hugo Black (18)

For a printed copy of this material with footnotes in pamphlet form,
send $2 to
Bill of Rights Foundation
220 S. State St.
Chicago, IL  60604





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Published by the Department of Public Education
American Civil Liberties Union
132 West 43rd Street.
New York, NY 10036
[phone]
To visit the ACLU gopher, try "gopher aclu.org 6601".

ACLU Briefing Paper Number 10
Freedom of Expression

"Congress shall make no law...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."

                                   -- The First Amendment


The inhabitants of the North American colonies did not have a legal
right to express opposition to the British government that ruled them.
Nonetheless, throughout the late 1700s, these early Americans did voice
their discontent with the Crown.  For example, they strongly denounced
the British parliament's enactment of a series of taxes to pay off a
large national debt that England had incurred in its Seven Years War
with France.  In newspaper articles, pamphlets and through boycotts,
the colonists raised what would become their battle cry: "No taxation
without representation!"  And in 1773, the people of the Massachusetts
Bay Colony demonstrated their outrage at the tax on tea in a dramatic
act of civil disobedience: the Boston Tea Party.

The early Americans also frequently criticized the much-despised local
representatives of the Crown.  But they protested at their peril, for
the English common law doctrine of "seditious libel" had been incorporated
into the law of the American colonies.  That doctrine permitted
prosecution for "false, scandalous and malicious writing" that had "the
intent to defame or to bring into contempt or disrepute" a private party
or the government.  Moreover, the law did not even accomodate the truth
as a defense: in 15th century England, where absolute obedience to the
Crown was considered essential to public safety, to call the king a fool
or predict his demise was a crime punishable by death.

The colonies' most celebrated seditious libel prosecution was that of
John Peter Zenger in 1735.  Zenger, publisher of the _New York Weekly
Journal_, had printed a series of scathing criticisms of New York's
colonial governor.  Although the law was against Zenger, a jury found
him not guilty -- in effect, nullifying the law and expressing both
the jurors' contempt for British rule and their support for a free and
unfettered press.  After Zenger's acquittal, the British authorities
abandoned seditious libel prosecutions in the colonies, having
concluded that such prosecutions were no longer an effective tool of
repression.

The stage was set for the birth of the First Amendment, which formally
recognized the natural and inalienable right of Americans to think and
speak freely:  "Congress shall make no law...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."

Following are the ACLU's answers to questions we have been asked by
members of the public about the history of the First Amendment and the
freedoms it guarantees.


---
What were the philosophical underpinnings of the First Amendment's guarantees?
---

James Madison, Thomas Jefferson and the other framers of the Bill of
Rights were products of the Age of Enlightenment.  They eschewed the
superstitions and intolerance of earlier times, believing instead in the
power of reason, the search for truth, and the perfectability of human
society.  Freedom of inquiry and liberty of expression were clearly
essential to the process of debate and discovery that they viewed as
indispensable to the achievement of human progress.

Questioning of authority was also a central theme of the Enlightenment
era.  The philosophers of the day well understood the tendency of
government to perpetuate itself by enacting repressive measures to silence
those opposed to its conduct.  According to one libertarian thinker of the
period, a citizen had the right to "say everything which his passions
suggest; he may employ all his time, and all his talents...to do so, in
speaking against the government matters that are false, scandalous and
malicious," and yet he should be "safe within the sanctuary of the press."
Speech was regarded as beyond the reach of criminal sanctions; only "overt
acts" could be punished.

Given the primacy that the framers assigned to the values the First
Amendment embodies, it is fitting that freedom of expression should be
the first freedom cited in the Bill of Rights.


---
Why does freedom of expression play such a critical role in our
constitutional system?
---

There are four primary reasons why freedom of expression, which
encompasses speech, the press, assembly and petition, is essential to a
free society:

First, freedom of expression is the foundation of self-fulfillment.
Self-expression enables an individual to realize his or her full potential
as a human being.  The right of individuals to express their thoughts,
desires, and aspirations, and to communicate freely with others, affirms
the dignity and worth of each and every member of society.  Thus, freedom
of expression is an end in itself and should not be subordinated to any
other goals of society.

Second, freedom of expression is vital to the attainment and advancement
of knowledge.  The eminent 19th century civil libertarian, John Stuart
Mill, contended that enlightened judgment is possible only if one
considers all facts and ideas, from whatever source, and tests one's own
conclusions against opposing views.  But the right to express oneself is
not conditioned on the content of one's views, which may be true or false,
"good" or "bad," socially useful or harmful.  All points of view should be
represented in the "marketplace of ideas" so that society can benefit from
debate about their worth.

Third, freedom of expression is necessary to our system of
self-government.  If the American people are to be truly sovereign, the
masters of their fate and of their elected government, they must be
well-informed.  They must have access to all information, ideas and points
of view.  The precondition for a free society is an informed and
enlightened citizenry.  Tyrannies thrive on mass ignorance.

Fourth, freedom of expression provides a "check" against possible
government corruption and excess, which seem to be permanent features of
the human condition.

Restrictions on freedom of speech always authorize the government to
decide how, and against whom, the restrictions should apply.  The more
authority the government has, the more it will use that authority to
suppress unpopular minorities, criticism and dissent.  Because freedom of
expression is so basic to a free society, the ACLU believes that it should
_never_ be abridged by the government.


---
What was the early history of the First Amendment and freedom of expression?
---

The First Amendment's early years were not entirely auspicious.  Although
the early Americans enjoyed great freedom compared to citizens of other
nations, even the Constitution's framers, once in power, could not resist
the strong temptation to circumvent the First Amendment's clear mandate.
In 1798, seen years after the First Amendment's adoption, Congress, over
the objections of James Madison and Thomas Jefferson, passed the Alien and
Sedition Act.  Ironically, this Act incorporated much of the English law
of seditious libel (indeed, seditious libel remained a part of our law for
the next 171 years), and was used by the dominant Federalist Party to
prosecute a number of prominent Republican newspaper editors.  But none of
those cases reached the Supreme Court.

Throughout the 19th century and much of the 20th, federal and state
sedition, criminal anarchy and criminal conspiracy laws were used
repeatedly to suppress expression by slavery abolitionists, religious
minorities, early feminists, labor organizers, pacifists and left-wing
political radicals.  For example, prior to the Civil War every
Southern state passed laws limiting speech in an attempt to stifle
criticism of slavery.  In Virginia, anyone who "by speaking or writing
maintains that owners have no right of property in slaves" was subject
to a one-year prison sentence.

In 1929, feminist Margaret Sanger was arrested for giving a lecture on
birth control.  Trade union meetings were banned and courts routinely
granted employers' requests for injunctions that prohibited strikes and
other labor protest.  Protest against U.S. entry into World War I was
widely suppressed, and dissenters were jailed for their pronouncements and
writings.  In the early 1920s, many states outlawed the display of red or
black flags, symbols of communism and anarchism.  In 1923, author Upton
Sinclair was arrested for trying to read the First Amendment at a union
rally.  Many people were arrested merely for membership in groups regarded
as radical by the government.  It was in response to the excesses of this
period that the ACLU was born in 1920.



---
How did the courts respond to First Amendment violations?
---

The lower courts were almost universally hostile to the First Amendment
rights of political minorities.  However, free speech issues did not
reach the Supreme Court until 1919.  That year, the Court dealt with free
speech for the first time in the case of _Schenck v. U.S._  Charles T.
Schenck, a member of the Socialist Party, had been convicted of violating
the Espionage Act for mailing anti-war leaflets to draft-age men during
World War I.  The Supreme Court unanimously upheld his conviction.  The
prevailing legal view at the time was that any speech that had a
"tendency" to cause a violation of law could be punished.

The _Schenck_ case was quickly followed by others that ended in decisions
equally contemptuous of First Amendment freedoms.  Among them was the case
of Jacob Adams, convicted under the Sedition Act of 1918 for distributing
leaflets that criticized the American military.  However, even though the
Supreme Court upheld Abrams' conviction, the decision in his case was a
watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented,
stating that speech could not be punished unless it presented "a clear and
present danger" of imminent harm.  The Holmes-Brandeis dissent marked the
beginning of modern First Amendment theory.

The Supreme Court declared the inviolability of First Amendment rights
for the first time in 1925 in _Gitlow v. New York_, a case that challenged
the conviction of a communist revolutionary under New York's Criminal
Anarchy law.  Although the Court affirmed the conviction, it announced that
freedom of speech and press were protected by the First Amendment from
federal encroachment, _and_ "are among the fundamental personal rights and
'liberties' protected by the states."  This holding paved the way for
Yetta Stromberg to prevail, six years later, in an appeal of her
conviction under a California law that made it a crime to publicly salute
a red flag -- the symbol of revolution.

Thereafter, the right to freedom of expression became more secure -- that
is, up until the advent of McCarthyism in the 1950s.  During this second
"red scare," the Supreme Court weakened the "clear and present danger"
test by holding that speakers could be punished if they advocated
overthrowing the government, no matter how remote the danger of such an
occurrence might be.  Under this new test, many political activists were
prosecuted and jailed for advocating communist revolution.  Laws that
required people to sign loyalty oaths, swearing that they were not members
of any subversive organizations, were also upheld and not reversed until 1967.

Finally, in the 1969 case of _Brandenberg v. Ohio_, the Supreme Court
struck down the conviction of a Ku Klux Klan member under a criminal
syndicalism law and established a new standard: Speech may not be
suppressed or punished unless it is intended to produce "imminent lawless
action" and it is "likely to produce such action."  Otherwise, the First
Amendment protects even speech that advocates violence.  The _Brandenberg_
test is the law today.


---
What forms of expression are protected by the First Amendment?
---

In addition to protecting "pure speech," expressed in demonstrations,
rallies, picketing, leaflets, etc., the First Amendment also protects
"symbolic speech" -- that is, nonverbal expression whose main purpose is
to communicate ideas.  In the 1969 case of _Tinker v. Des Moines
Independent Community School District_, the Supreme Court recognized the
right of high school students to protest the Vietnam War by wearing black
armbands.  In 1989 and again in 1990, the Court upheld the right of an
individual to burn the American flag in public as an expression of
disagreement with government policies.  Other examples of protected
expression include images in works of art, slogans or statements on
T-shirts, "fashion statements" that incorporate symbols and/or written
slogans or declarations, music lyrics and theatrical performances.

As well as protecting a free "marketplace of ideas" within our nation, the
First Amendment also protects free trade in ideas across U.S. borders
(although the law in this area is less well-defined).  That protection
encompasses both the right of Americans to travel and disseminate their
ideas abroad, and their right to receive information from other countries
-- in other words, their right to know.  As Justice William J. Brennan,
Jr. once observed, "The right to receive publications is a fundamental
right...It would be a barren marketplace of ideas that had only sellers
and no buyers."



---
Can speech be curtailed if it is thought to jeopardize national security?
---

At several points in our history, particularly during wartime, the
government has sought to limit speech in the interest of "national
security," a vague term that, if construed too broadly, can be used to
justify the suppression of information vital to public discourse.

The ongoing controversy that surrounds competing claims of national
security and freedom of expression came to a head in 1971 in the _Pentagon
Papers_ case. _The New York Times_ obtained a copy of, and published
excerpts from, the so-called Pentagon Papers, a voluminous secret history
and analysis of the nation's military involvement in Vietnam.  When the
_Times_ ignored the government's demand that it halt such publication in
the interest of national security, the newspaper was enjoined from
continuing to publish portions of the document.  Two weeks later, on
expedited appeal, the Supreme Court ruled that the government could not,
through "prior restraint," block publication of any material unless it
could prove that the material would "surely" result in "direct, immediate,
and irreparable" harm to the nation.  Since the government had not met its
burden of proof, the _Times_ was free to continue the series.

While the Court's decision represented a victory for freedom of speech
and the press, it did strike an ominous note by tacitly accepting a
national security exception to the First Amendment's ban on prior
restraint.  And in subsequent years, the Court upheld the government's
national security claims in several cases involving former CIA agents who
had written their memoirs.

The ACLU believes that national security, like all government interests,
must be served only in ways that are consistent with our tradition of
respect for individual rights.



---
Why should racists and other hatemongers, or those espousing
anti-democratic political doctrines, have free speech rights?
---

The Constitution does not authorize the government to assess the content
of speech and the curtail the speech it judges to be irresponsible or
wrong.  If the government had such power, we would all be in danger.  All
people within the borders of the United States have the right to express
themselves freely, even, in the words of Justice Felix Frankfurter, if
they "speak foolishly and without moderation."  In a society of laws, the
laws must apply to everyone.

The ACLU's defense of the free speech rights of groups such as the Ku Klux
Klan and the American Nazi Party has often stirred controversy and drawn
criticism.  But popular and palatable ideas do not need protection from
government suppression; only unpopular and offensive doctrines do.  As one
federal judge has put it, our toleration of hateful speech is "the best
protection we have against any Nazi-type regime in this country."

The Supreme Court has consistently rejected the notion that speech can be
punished because it offends some people's sensibilities, and has generally
invalidated statutes and practices that penalize expression based on
content.  The Court has also taken a dim view of breach-of-the-peace
statutes when applied to expressive conduct.  In the 1949 case of
_Terminiello v. Chicago_, the Court struck down the disorderly conduct
conviction of an anti-Semitic priest (suspended by the church for his
views), who had provoked a violent confrontation when he denounced Jewish
people at a political rally.  The Court's decision, written by Justice
William O. Douglas, stated: "The function of free speech under our system
of government is to invite dispute.  It may indeed best serve its high
purpose when it invites a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger."



---
Can free speech be limited in any way?
---

The government may place "time, place and manner" restrictions on speech
as long as they are "reasonable."  For example, requiring people to obtain
a permit to hold a meeting in a public building, or to conduct a
demonstration that may interfere with traffic, constitutes a justifiable
regulation.

But restrictions that are overly burdensome violate the First Amendment.
For example, during the 1960s, officials in Southern cities frequently
required civil rights activists to apply for permits in order to hold
demonstrations, and then granted or denied the permits arbitrarily.  Thus,
in the 1969 case of _Shuttlesworth v. Birmingham_, the Supreme Court struck
down such licensing schemes as unconstitutional.  Similarly, in 1977, the
Court ruled that the local government's requirement that members of the
American Nazi Party post $350,000 in insurance in order to hold a march
and rally in Skokie, Illinois was an unconstitutional infringement on the
group's First Amendment rights.  Insurance requirements were also regularly
used in the South to repress civil rights demonstrations.



---
Are any forms of expression not protected by the First Amendment?
---

The Supreme Court has established several limited exceptions to the First
Amendment's protections:

FIGHTING WORDS:  In the 1942 case of _Chaplinsky v. New Hampshire_, the
Supreme Court held that so-called "fighting words...which by their very
utterance inflict injury or tend to incite an immediate breach of the
peace" are not protected by the First Amendment and can be punished.  The
Court based its decision on the concept that such utterances are of
"slight social value as a step to truth."

LIBEL:  In the 1964 case of _New York Times Co. v. Sullivan_, the Supreme
Court held, in a groundbreaking decision, that defamatory falsehoods
published about public officials are not protected by the First Amendment
and can be punished if the offended official can prove that his/her
accuser published the falsehoods with "actual malice" -- that is, with the
"knowledge that the statement was false or with reckless disregard of
whether it was false or not."  While the Court's decision addressed a
particular type of common law libel, other kinds of "libelous statements"
are also punishable.

COMMERCIAL SPEECH:  In the 1976 case of _Virginia Pharmacy Board v.
Virginia Citizens Consumer Council_, the Supreme Court struck down a state
ban on prescription drug advertising on First Amendment grounds.  However,
commercial speech -- which includes advertising, financial and credit
reports, and the like -- still has far less First Amendment protection
than other speech.  Generally, it can be banned if it is, on the whole,
misleading or takes undue advantage of its audience.

OBSCENITY:  "Obscene" material has historically been excluded from First
Amendment protection, which has led to the official banning of such
classics as James Joyce's _Ulysses_ and D.H. Lawrence's _Lady Chatterly's
Lover_, as well as the criminal prosecution of countless publishers, book
distributors, storekeepers, film distributors and artists.  But in the
1973 case of _Miller v. California_, the Court re-examined the issue and
established a standard for determining whether material is obscene.  The
Court ruled that material is legally obscene if: (1) the average person,
applying contemporary community standards, would conclude that the work,
taken as a whole, appeals to prurient interests; (2) it depicts sexually
explicit conduct, specifically defined by law, in a patently offensive
manner; and (3) it lacks serious literary, artistic, political or
scientific value.  The _Miller_ test is still the law today.

Unfortunately, the Supreme Court's long-standing unwillingness to strike
down all obscenity laws as unconstitutional infringements on freedom of
expression has allowed censorship to flourish at various times in our
history because of public officials' tendency to apply the Court's narrow
limits in overbroad ways.  This remains a problem with all of the limited
exceptions to the First Amendment.


---
Is freedom of expression in danger today?
---

The right to freedom of expression is being severely tested today, just as
it has been throughout the 200-year history of the Bill of Rights.
Governments by nature are always seeking to expand their powers beyond
proscribed boundaries, the government of the United States being no
exception.  And since the right to free expression is not absolute, it
must be constantly protected against official depredations.

Today, artistic expression is under attack, as some groups of citizens
seek to impose their morality on the rest of society.  Book censorship in
the public schools, mandatory record labeling, as well as obscenity
prosecutions of rap singers, record distributors and museum directors, are
all manifestations of suppression efforts.  Artists, performers and
authors now occupy the same vulnerable position that political radicals
did in the 1950s.

If the past two centuries of struggle to preserve freedom of expression
have taught us anything, it is that the first target of government
suppression is never the last.  Whenever government gains the power to
decide who can speak and what they can say, the First Amendment rights of
all of us are in danger of being violated.  But when all people are
allowed to express their views and ideas, the principles of democracy and
liberty are enhanced.


The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036


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