Free Speech: A Brief History

The following selection is excerpted from FIRE’s Guide to Free Speech on Campus.

The lessons of history are powerful tools of moral and political persuasion. It is, therefore, important to have some understanding of the many phases of free speech and of censorship in American history. 

Many college students have some knowledge of the great debates surrounding free speech and civil rights in the 1960s and 1970s, but few realize that battles over free speech have been a continual theme throughout our history. These battles have been fought by those who might appear to us today unlikely heroes and censors. At different times, progressives, prudes, slave owners, patriots, presidents, capitalists, socialists, chauvinists, feminists, and even poets and novelists have called for censorship, while the champions of free speech have emerged from the ranks of the deeply religious, nudists, multimillionaires, countercultural revolutionaries, pacifists, anarchists, and members of every conceivable political party and stripe. The identity of those who argue for or against a truth or a moral principle does not determine its rightness. In American history, sadly, many groups have taken turns being the censored and the censors. 

When administrators at your school advance a rationale to punish a student for his or her speech, a student newspaper for an article, or a student group for a parody or satire, chances are they are recycling the reasoning of the censors of America’s past. As Lord Acton famously wrote, “Power corrupts.” Knowledge of that human vulnerability is one of the great motives for securing liberty from the arbitrary exercise of power.

The Alien and Sedition Acts

The first grave threat to free speech began less than a decade after the First Amendment was ratified in 1791. In 1798, during the presidency of John Adams, Congress passed the Alien and Sedition Acts, statutes that essentially banned any criticism of the government or the president. While the potential of war with France provided the excuse, the Sedition Act, in particular, was a partisan weapon directed above all at the political party of Thomas Jefferson, the rival of Adams’ party. 

Since the Act recognized truth as a defense to any alleged violation, the Federalists claimed that the Act was merely a law against seditious lying. However, it was up to the accused to prove their statements true. Consequently, Republican politicians and newspaper editors were sent to jail for failure to prove the truth of their opinions. The Sedition Act has since been discredited and would not be considered constitutional by the Supreme Court today. Indeed, in the 1969 case of Watts v. United States, Justice William Douglas wrote that the “Alien and Sedition Laws constituted one of our sorriest chapters,” and further observed that “[s]uppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”

The Act, however, provided an important lesson: Democratic processes alone are not sufficient to protect minority viewpoints. Even democratically elected officials can and will use their power to suppress and silence their opponents. Ultimately, free speech exists as a check on official power, whether that power was elected, appointed, or inherited. Without that check, freedom suffers and tyranny flourishes.

The slavery debate and attempts to silence abolitionists

After the Sedition Act passed into oblivion, and before the Civil War, the most significant free speech debate surrounded the right of abolitionists to agitate against the institution of slavery and to advocate emancipation. Southern politicians and pamphleteers rallied for national laws banning abolitionist expression, trying to convince even the northern states to pass laws prohibiting antislavery speech and publications. They argued that antislavery speech tended to produce slave revolts, that it threatened the cohesiveness of the Union, and even that the speech of abolitionists “inflicted emotional injury” on slave owners. (Ironically, protection from the “emotional injury” of speech is one of the most common arguments in favor of restrictive speech codes on college campuses.) While some southern states did pass laws banning or limiting abolitionist speech, almost all of the calls for federal legislation or northern laws against abolitionist speech ended in failure.

In his book Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History, historian Michael Kent Curtis argues that the failure of these laws was not due, in fact, to a belief that the First Amendment prevented the states from punishing speech. On the contrary, prior to the ratification of the Fourteenth Amendment in 1868, there was relative agreement that the First Amendment applied only to the federal government and not to the states (although the constitutions of many states did protect speech). Rather, Curtis showed, these initiatives were defeated in large part by a popular, widespread belief in the principles of free speech. Most of these attempts to censor failed because ordinary Americans understood the fairness and importance of free speech. It was that shared value, above all, that prevented the legislation most hostile to free speech from passing. This is an important lesson for students whose free speech is threatened: The public often understands the need for free speech even if your college may not. Freedom’s popular appeal should not be underestimated, and you may at some point choose to take your free speech battle into the public arena — often, we have learned, with remarkable success.

Once the Civil War began, many civil liberties were seriously curbed, as frequently happens in times of war. In the name of national security, some newspapers were ordered to cease publication, the mails were heavily regulated, and a former Ohio congressman was exiled from the Union for agitating against the war. It is important to note, however, that few of the most extreme measures taken by the Lincoln administration regarding civil liberties would survive under the current interpretation of the Constitution. Furthermore, the Civil War was surely the greatest crisis in American history and the closest America has ever come to collapse. You should be very skeptical of anyone who points to the restrictions of the truly exceptional Civil War era as establishing the allowable limits of civil liberties in times of crisis.

After the Civil War: Censorship by mob and by prudishness

After the Civil War, there were many violations of basic free speech principles, especially against recently freed slaves who were silenced by mobs, by so-called “black laws,” and by the Ku Klux Klan. These violations would continue, sadly, for decades. Also, as our country moved more deeply into the so-called Victorian era, pressure for one version of moral purity prompted the passage of laws that banned “immoral speech” of many different kinds. In the name of propriety, women’s suffragists, atheists, advocates of birth control of any kind and of more liberal divorce laws, and some merely deemed social misfits, however peaceful, were censored, charged with crimes, and sometimes sent to prison.

The period from the late nineteenth century to the end of World War I was, from contemporary points of view, a dark time for free speech. Restrictive rules, banning even what by today’s standards would be the tamest speech, were justified in the name of public morals, safety, civility, or a general idea of decency. (This rationale may sound familiar to college students today — administrators who often view themselves as progressive might be horrified to learn how often they act like the Victorians.) Incidents during this period included a jail term for an author who used one of the most common curse words, a prosecution for an advocate of nude bathing, an attempt to ban Walt Whitman’s Leaves of Grass, and a ban on an informative column on how to avoid venereal disease.

The birth of modern free speech doctrine during the 'Red Scares'

The modern age of free speech law began after America entered World War I and with the passage of the Espionage Act of 1917. (The Espionage Act made it a crime to “willfully cause or attempt to cause insubordination, disloyalty, [or] mutiny.”) Frightened of revolutionaries, anarchists, and communists at home and abroad, the government clamped down on speakers who opposed the government or advocated revolution, or, in some cases, who simply were pacifists or reformers. From the first Red Scare of the 1920s to the second Red Scare of the 1950s, political beliefs and statements were often punished directly through laws against “sedition,” “espionage,” and “syndicalism.” Many radicals and activists (including union activists) had their lives and careers ruined. Some lost their jobs, others were deported, and still others were sent to jail.

The Deported: Emma Goldman and activist persecution under the 1917 Espionage Act

More than 100 years ago, the government targeted an anti-war activist and publisher for speaking out against the draft and removed her from the country. Her name was Emma Goldman.

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Starting in the 1920s and led by Justices Louis Brandeis and Oliver Wendell Holmes, the Supreme Court applied First Amendment restrictions to the states by defining censorship as “state action” violative of the “due process” guarantee of the Fourteenth Amendment. When the Bill of Rights (the first ten amendments to the Constitution) was first adopted in 1791, it was not at all clear that the protections of the First Amendment — including those related to speech, press, and religion — would apply to infringements by state governments (including, of course, state colleges and universities). The liberty guarantees contained in the Bill of Rights, as written, prevent only “Congress” — that is, the federal government — from interfering with the protected (and, since stated, “enumerated”) rights and liberties of citizens. 

However, during the period between the two World Wars, federal courts increasingly bound state governments by many of the same restrictions applicable to the federal government. This process took place as the Supreme Court “incorporated” certain of the specific rights — enumerated in the Bill of Rights — into the guarantee of “due process of law” that the Fourteenth Amendment explicitly applied to the states. These restrictions, therefore, now limit the power of both federal and state governments (and of the agents or “entities” that they create), although they do not (with limited exceptions to be discussed later) restrict the power of private organizations to censor their members.

In this way, the Supreme Court gradually embraced a much stronger, more dynamic, and more expansive conception of free speech, protecting an increasingly broad spectrum of expression. The court also embraced the concept of the “marketplace of ideas,” holding that the free exchange of ideas is necessary for the health of democracy. It would take many years for the most far-reaching views of Holmes and Brandeis to take hold — many of their broadest conceptions of free speech occurred in minority dissents — and free speech was under particular threat during the McCarthy era of the 1950s. Nonetheless, Holmes’ and Brandeis’ vigorous interpretation of the First Amendment provided the foundation for many of the freedoms that we enjoy today.

Such new interpretation served to protect even quite disturbing speech. As the Supreme Court said in Terminiello v. Chicago (1949), in reversing the disturbing-the-peace conviction of a notorious hate-monger, the “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” As Milton had argued in the 1640s, truth is well-served by confrontation with error.

The expansion of speech protections from the 1950s to the 1970s

As a result of a series of Supreme Court opinions beginning after World War I and proceeding into the Civil Rights era of the 1950s and 1960s and the Vietnam War era of the 1960s and 1970s, the scope of free speech rights continued to expand. The cumulative weight of Court rulings established, in effect, a presumption that speech was to be free and unrestricted, except for a few quite narrow areas.

As the Civil Rights revolution of the 1960s spread across the nation, seeking to eliminate racial segregation and discrimination, the Supreme Court made clear that free speech protection extended even to speech that was vulgar, offensive, and more emotional than rational and logical. Expression, in other words, was to be protected as much as argumentation — the First Amendment, in effect, protects the good, the bad, and the ugly. 

In an opinion written in the Vietnam War case of Cohen v. California (1971), reversing the conviction of a young man who wore the slogan “Fuck the Draft” on his jacket in a courthouse, the Supreme Court ruled that in a free society, it is “often true that one man’s vulgarity is another’s lyric.” The Court strongly institutionalized a notion that had been expressed decades earlier in a dissent by Supreme Court Justice Oliver Wendell Holmes, namely that the First Amendment embodies “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” 

This is the view that prevailed later in the century and prevails today. Indeed, the Supreme Court’s current view is even more expansive than Holmes’ formulation, since the mode of expression is now as much protected as the content of the thought expressed. The government simply does not have the power to insist that we limit our expression of ideas to the use of certain “acceptable” words and phrases. As Mill had argued in 1859, power does not get to choose what is temperate and what is not.

First Amendment freedoms developed during the Civil Rights Movement

As southern states and segregationists used their laws and courts to stifle political opponents, proponents of equal rights worked to secure many of the civil liberties we hold dear today.

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The expansion of rights by the Supreme Court’s interpretation of the First Amendment during the decades from the 1950s to the 1970s was based on a kind of golden rule of constitutional doctrine. Under this concept, we should fight for the rights of others if we wish to exercise those rights ourselves. “Equal protection of the laws,” another concept embodied in the Fourteenth Amendment, means that we are all either protected by, or potential victims of, the same laws. If you think about it, no better mechanism to achieve fairness and liberty is likely ever to be developed than that of forcing us all to live under the rules that we impose upon others. “Do unto others,” the biblical golden rule instructs, “as you would have them do unto you.” This doctrine, which underlies the concept of the rule of law, has ancient antecedents and it is deeply embedded in both religious and secular culture.

If the rules that we write apply equally to ourselves and to others, we think more closely and deeply about the rights involved. If they apply only to others, we all too often ignore the very issue of rights.

The 1980s and 1990s: Flag burning, speech codes, 'harassment,' and college campuses

The decades of the 1980s and 1990s were times of contrast and contrary impulses in the field of free speech. On the one hand, the Supreme Court continued to deliver robust free speech opinions, including Texas v. Johnson (upholding the right to burn a flag), Hustler Magazine, Inc. v. Falwell (upholding the right to engage in ferocious parody and criticism), and R.A.V. v. St. Paul (banning viewpoint discrimination even when the speech might be considered “hate speech”). On the other hand, new theories hostile to free speech began to emerge where one least expected them — on our college and university campuses.

The new justifications for campus censorship, ironically, emerged from some truly positive developments. As walls of discrimination designed to keep women and disfavored minorities out of many colleges fell, schools saw an unprecedented influx of students from different races and religions and of women and openly gay students. Unfortunately, college administrations — claiming to assist the peaceful coexistence of individuals in their more diverse communities — began looking for ways to prevent the friction that they feared would result from these changes.

Some asked what good it was to admit formerly excluded students if they were offended at universities once they arrived, as if individuals who had struggled so mightily for their liberty were too weak to live with freedom. Students of the 1960s had torn down most of the conception of the university as acting in loco parentis (a Latin term that means standing in the role of parents). Too often, administrators from the 1970s on, and above all in the 1980s, chose to restore what was largely a rebranded version of in loco parentis that went far beyond the authority the students of the 1960s had ended.

One part of this trend was the imposition of codes against “offensive speech.” The codes generally did not bar all offensive speech. Rather, they sought to prevent, and to punish, speech that would offend one’s fellow students on the basis of the listener’s race, religion, ethnicity, gender, or sexual orientation. Thus, these codes not only limited speech and expression, but did so in a manner that disfavored certain types of speech and favored certain points of view over others. Moreover, the codes often barred the expression of words and ideas that obviously belonged in any “free marketplace of ideas” but that administrators intent on avoiding student frictions or demonstrations proclaimed too disruptive to be worth protecting.

Codes against “offensive speech,” however, are utterly incompatible with the goals of higher education. After all, the concept of “academic freedom” ensured, in theory at least, that discussion of even the most controversial and provocative issues should be vigorous and unfettered on campuses, all in the name of the search for truth that almost all liberal arts institutions long have claimed as their governing ethic. Thus far, courts have agreed, at least on constitutional grounds, striking down speech codes virtually every time that they have been directly challenged.

Nonetheless, “harassment codes” covering speech and expression still exist on the overwhelming majority of college campuses today, including public institutions bound by the First Amendment. These codes have survived in large measure because of a clever attempt by their drafters to confuse speech, including “offensive” speech (which enjoys clear constitutional and moral protection) with “harassment” (which, defined in precise legal terms, does not enjoy protection). This sleight-of-hand by the drafters of harassment codes will be discussed later in this Guide.

The 2000s: Despite continued defeats in court, campus censorship persists

Like the two decades prior, the 2000s were marked by contradictory results for free speech, particularly on campus. While the past ten years brought welcome advancements for student speech rights, particularly in our nation’s courts, they also saw the emergence of frustrating new justifications for censorship of campus expression. Above all, the 2000s demonstrated that restrictions on student speech are both depressingly pervasive and maddeningly hardy.

On one hand, the long list of defeats suffered by speech codes in court continued unabated as federal courts across the country struck down restrictions on student speech on First Amendment grounds. In 2003, a federal district court in Pennsylvania enjoined the enforcement of Shippensburg University’s harassment policy, holding that it violated the First Amendment. Shippensburg’s speech code had mandated that student expression must not “provoke, harass, intimidate, or harm another,” effectively outlawing a staggering amount of communication among students. 

In 2004, another federal district court, this time in Texas, found that Texas Tech’s speech codes were similarly unconstitutional. Prior to the court’s ruling, the university had prohibited “insults,” “ridicule,” and “personal attacks,” and had further restricted the free expression of all 28,000 students on campus to a “free speech gazebo” that measured twenty feet in diameter. In 2007, a federal judge in California struck down San Francisco State University’s policy that required “civility” in student interaction, finding that for many speakers, “having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act.” And in perhaps the biggest victories for student speech rights, the U.S. Court of Appeals for the Third Circuit dismantled speech codes at Temple University (2008) and the University of the Virgin Islands (2010), finding in each instance that the institution’s restrictions on campus expression could not pass constitutional muster.

But despite the unbroken string of defeats for campus speech codes, a majority of colleges and universities shockingly continued to enforce policies that silenced campus speech. Annual research conducted by FIRE’s experienced attorneys specializing in constitutional law has indicated for five years running that more than two-thirds of the hundreds of colleges and universities surveyed maintained speech codes, leaving speech on campus far less free than required by either the First Amendment (at public institutions) or by contractual promises (at private institutions). Whether due to a misunderstanding of the controlling legal precedent, a simple ignorance of the importance of free speech in a modern liberal arts education, a misguided fear of liability for failure to shield students from offense on campus, or still other factors, the stubborn, pervasive persistence of speech codes on our nation’s campuses remained a grave concern throughout the 2000s and into the 2010s.

Worryingly, new threats to free speech on American college campuses emerged during the decade. Following a deadly school shooting at Virginia Polytechnic Institute and State University in 2007, some universities began to cite fears of another such incident as pretext for silencing merely inconvenient or unwanted student speech. Meanwhile, many colleges instituted “bias-response protocols” that allowed students to anonymously report their peers for investigation if they deemed their speech to be “biased” or “hateful.” Still others established so-called “free speech zones” on campus, quarantining student expression to small areas of campus and often requiring students to register for use of such areas far ahead of time — in contravention of clear legal precedent.

Free Speech Zones

Free speech zones limit expressive activity to small and/or out-of-the-way areas. They are usually unconstitutional on college campuses.

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Finally, the 2000s saw a marked erosion of student speech rights at the high school level — and, distressingly, some courts began to blur the distinction between the extensive speech rights legally afforded college students and the far more limited rights enjoyed by high school students. For example, in 2005, the U.S. Court of Appeals for the Seventh Circuit held that a dean of students who exercised prior restraint (a mode of censorship) over a student newspaper could not be found liable for violating student First Amendment rights because the rights of the collegiate press were insufficiently clear, thus effectively providing the dean with a legal excuse for censorship. In support of this deeply disappointing ruling, the Seventh Circuit relied on a Supreme Court case sharply curtailing the speech rights of high school students, essentially treating high school and college students as fundamentally equivalent in terms of First Amendment protections. Given the Supreme Court’s willingness to carve out new exceptions to the free speech rights granted to high school students — for example, the Court’s ruling in Morse v. Frederick (2007) allowed high schools to censor students “celebrating,” “advo[cating],” or “promot[ing]” illegal drug use — the conflation of high school speech rights with collegiate speech rights is deeply problematic for campus speech advocates.

Today: 'Bullying' and online speech

Unfortunately, the threats to student speech that marked the 2000s have not dissipated by the beginning of the 2010s. Not only do these modes of censorship remain potent and widely employed — despite the overwhelming legal precedent affirming the robust speech rights enjoyed by college students—but they also have been joined by newly emergent justifications for restricting student speech.

Increasingly, students are punished for expression voiced not on campus, but online. While communicating with friends, faculty, and fellow students has been unquestionably revolutionized in recent years by the ubiquity of broadband internet access on campuses across the country, the unprecedented speed and ease of digital communication for today’s students have made student speech newly visible in ways that invite new modes of censorship. As a result of litigation prompted by the punishment of both high school and college speech, 2011 has seen the emergence of a growing split between courts about how, if at all, schools may regulate student speech online. 

While the medium of today’s student interaction is newly digital, it is vital to remember that the principles underlying the First Amendment are the same. Despite the breathtaking technological advancements society has seen since Milton’s time, the same arguments in favor of freedom of expression made by Milton apply with equal and undiminished force in the age of the Internet.

Why John Milton’s free speech pamphlet ‘Areopagitica’ still matters

Milton's most important work on free speech was “Areopagitica,” a short polemical pamphlet that argued “For the Liberty of unlicensed printing.”

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In 2010 and 2011, both state and federal legislators rushed to respond to a tragic spate of high-profile teenage suicides with “anti-bullying” legislation. However well-intentioned, such legislation too often fails to respect student speech rights while ignoring colleges’ previously existing obligations under federal civil rights laws to proscribe truly harassing behavior. For example, in January 2011, New Jersey enacted a new law requiring all public grade schools, high schools, and colleges to ban “harassment, intimidation or bullying,” broadly defined so as to target speech that causes “emotional harm.” Given that, time and again, FIRE has seen campus administrators seize upon any perceived justification to silence student speech that is merely inconvenient or unpopular, it is unfortunately all too likely that this broad definition of “bullying” will be invoked to censor speech protected by the First Amendment. New Jersey’s effort is matched at the federal level by anti-bullying initiatives from the Department of Education and legislation introduced by Congress, each of which similarly confuse the legal definition of harassment in the university context supplied by the Supreme Court.

When arguing in defense of your speech rights, in the face of administrative claims that speech deemed offensive by some students constitutes a violation of those students’ civil rights, you should take the high ground unapologetically and point out that, in fact, the moral, practical, historical, and legal arguments long recognized in this nation all favor free speech rather than censorship. Speech rights are not a “zero sum game” in which one person’s gain is another person’s loss. Rights, under our Constitution, are available equally to all. To betray the core principle of legal equality would be a denial of the very ideals and struggles that led to a history of broadened rights.

Want to learn more about protecting your civil liberties at colleges and universities? Read FIRE's Guide to Free Speech on Campus.