Speaking freely

A brief history of the right to free speech in America

(CNN) -- The history of freedom of speech and the press in the United States has often been tied to criticism of the government, and particularly associated with war and social upheaval, fear and anger.

The struggle predates nationhood, beginning in earnest in 1734, with the arrest of Colonial newspaper publisher John Peter Zenger. Zenger had used the pages of his Weekly Journal to oppose the policies of New York Gov. William Cosby.

Defended by Andrew Hamilton in court, Zenger was acquitted in 1735 -- establishing the principle that truth is a defense against libel.

By 1776, with the colonies in rebellion against what they saw as tyrannical rule by Britain, the Virginia Declaration of Rights, enacted June 12, included the contention that "freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic government."

Ironically, when the fledging United States government created its Articles of Confederation in 1781, it included no protection for either freedom of the press or freedom of speech. In fact, the legislators who created the document specifically rejected James Madison's proposed 14th Amendment, which would have barred any of the new states from infringing on "the right of conscience, (or) the freedom of speech or press."

Ten years later, those guarantees of personal liberties were included in the Bill of Rights. Connecticut, Georgia and Massachusetts were the last three of the original 13 colonies to ratify the first 10 amendments -- in 1941.

But those guarantees may have been too broad for Congress' Federalist majority, which in 1789 passed the Sedition Act, imposing stiff fines and jail terms for criticizing the government. The Sedition Act, and three other acts governing alien residents, spelled doom for the Federalists, who lost power in the next election. President Thomas Jefferson, in 1800, pardoned those convicted under the Sedition Act.

The 19th century saw little action in the arena of free speech, although the passage of the 14th Amendment decreed that the Bill of Rights' guarantees could also be applied to state governments. That concept was confirmed by the Supreme Court in 1925.

Modern history: barring government criticism again

The 20th century began with near repeats of the late 18th century: Congress, concerned by an increase in social upheaval as well as the advent of World War I, passed first the Espionage Act in 1917 and then a second Sedition Act the following year.

The Espionage Act made it illegal "to willfully obstruct the recruiting or enlistment service of the United States" or to foster disloyalty within the armed services ranks.

The Supreme Court confirmed the law's constitutionality in 1919, setting forth the "clear and present danger" test defining when criminal punishment of speech can be justified.

Four-time Socialist candidate for president Eugene Debs was convicted in 1918 of hindering enlistment, and sentenced to 10 years in prison. His sentence was commuted in 1921.

The Sedition Act, like its predecessor, barred speaking out against the government but added restrictions specific to wartime such as hindering the country's war effort by making false statements, hindering enlistment or speaking out against production of war materials. The flag and the Constitution were also protected from negative statements by the bill.

President Franklin D. Roosevelt pardoned all remaining violators of the Sedition and Espionage Acts in 1933.

Free speech wrangling in the early 20th century

In a precursor to attempts of the latter part of the century to make English the country's official language, the Supreme Court in 1923 struck down a Nebraska law banning teaching in any language other than English.

Journalist H.L. Mencken was tossed behind bars in 1926 after censorship groups in Boston declared that his periodical American Mercury, a journal of scathing criticisms of American culture, was obscene.

And in 1938, Life magazine was banned from the United States after it published pictures from the public health film "The Birth of a Baby."

Ironically, a year earlier, the Supreme Court had ruled that freedom of speech and the press represent the "indispensable condition of nearly every other form of freedom."

The American Civil Liberties Union has its beginnings in the early 20th century, with the creation of the Civil Liberties Bureau in 1917 and the American Civil Liberties Bureau in 1920.

War and sedition

The advent of war again brought new restrictions on speech with the passage of the Smith Act in 1940. The Smith Act made it a crime to "advocate, abet, advise, or teach the duty, necessity, desirability or propriety of overthrowing or destroying any government of the United States by force of violence."

The Supreme Court upheld the constitutionality of the act in 1951.

The court amended its "clear and present danger" test in determining when speech could become criminal in 1957, when it required proof that the speaker was advocating potentially violent activity, and again in 1969. In the later ruling, the court ruled that inciting violence is permissible unless the speech is linked to "imminent lawless action" and is likely to incite it.

But the court kept a level head on patriotism, striking down, in 1943, a West Virginia law requirement to salute the flag as an affront to freedom of speech. Forty-six years later, the court ruled that burning the flag is also a protected form of free speech, overturning a Texas statute.

In another landmark case, the court allowed publication of the Pentagon Papers in 1971, ruling that the main purpose of the First Amendment is to "prohibit the widespread practice of governmental suppression of embarrassing information."

Whether these rulings and actions will come to bear as the nation's highest court hears the case for and against the Communications Decency Act remains to be seen. But the battle over the CDA is sure to take its place as another landmark in the U.S. government's ongoing struggle to balance individual liberties against the concerns of the community.

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