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The freedom of expression is an essential concept that guarantees the democratic rights and freedoms of the citizens. This freedom ensures an unlimited right to wholly express oneself in matters of public affairs as it is provided in the First Amendment. However, this freedom has never been absolute. The justices argue that this freedom of expression should be limited as a shield to possible dangers.
It should be noted that only two justices have upheld the literal interpretation of the First Amendment clause. In Terminiello v. Chicago, 337 U.S 1 (1949), Justice William ODouglas held his ground as an advocate of the First Amendment clause when he overturned the conviction of a religious leader who had been accused of making anti-semitic statements in a public rally. This decision did not auger well with some of the justices who held dissenting views by arguing that the court was going out of its way to reverse the conviction. Justice Felix Frankfurters, in his written dissent for instance, expressed his concern by arguing that the decision was likely to cause a power imbalance between the state and the federal court. Justice Hugo Black seemed to echo the sentiments of Justice William in his decision to allow the newspaper to continue with its publication in New York Times Co. V. United States, 403 U.S. 713 (1971) (Smith 20).
It is evident that the courts have evaluated the freedom of expression on a case-to-case basis. The proper limit of expression was evidenced in Schenck v. United States, 249 U.S 47 (1919) in which the court supported the conviction under the Espionage Act of 1917. The court further concluded that the defendant was not protected by the First Amendment. The decision of this court established the test of clear and present danger that seems to gain popularity in subsequent court decisions such as Whitney v. California, 274 U.S. 357 (1927). However, the decisions in this cases were overhauled in Brandenburg v. Ohio, 395 U.S. 444 (1969), a landmark case in which the court ruled that the government had no right to punish abstract advocacy. The case saw the opinion by the per curiam majority overhaul the Clear and present danger test to adopt the imminent lawless action test (Farish 56).
It is evident that the evolution of standards that the court has adopted to evaluate the freedom of expression leaves a lot to be desired. The courts should establish precise standards to allow more freedom in the interpretation of First Amendment instead of relying on the liberal approach. Only then will the freedom of expression achieve its absolute nature.
The freedom of press is guaranteed under the First Amendment. The ability by the press to be accorded absolute freedom by the government is very crucial in a democratic and free society. The court has attempted to define the role of the press in the society. In Lovell v. City of Griffith, 303 U.S. 444 (1938), the press was defined as a vehicle of information and opinion. Chief Justice Hughes continued to argue that the freedom of press is subject to certain restrictions and is therefore not absolute. Such restriction was upheld in Branzburg v. Hayes, 408 U.S. 665 (1972) in which the court held that the First Amendment did not grant a journalist the liberty to decline a subpoena from a jury (Cornwell 102).
There are certain instances that the court places restrictions on the press freedom. Such circumstances are denied the protection of the First Amendment. The most notable circumstance to which the court restricts the press is the use of obscene materials. This is in a bid to uphold the social morality in the society. The court in Ruth v. United States, 354 U.S. 476 (1957) ruled that any publication of obscene material was illegal and did not deserve any special treatment. The other circumstance relates to any publication of materials that seem to promote child pornography. The Fourth Amendment does not protect anyone who publishes such materials that seem to depict sexual connotation in a minor. The restriction on content is another instance that the court places a restriction on the press freedom. The court in Watts v. United States, 394 U.S 705 (1969) ruled that any content that contained a genuine threat can be prohibited. In applying this restriction, the court relies on the doctrine of strict scrutiny which basically allows the court to restrict any content that it deems dangerous to the public interest. The doctrine of strict scrutiny was further upheld in Miami Herald Publishing Co. v. Tomilio, 418 U.S. 241 (1974) in which the court refused to treat this restriction with any sympathy.
It is important to note that the state can place restriction through prior restraint. The court applies strict measures to evaluate laws that compel prior restraint on speech. One way is through evaluating the prohibited speech and to assess whether it creates imminent danger that could threaten the peace and the states legitimate interests. This is because the prohibited activity is suppressed before it is determined whether it is protected by the First Amendment. This was the argument in Pittsburgh Press Co. v. Pittsburg commission on Human Relations, 413 U.S 376 (1973). However, there are instances that the court has allowed the doctrine of prior restraint. The justices have written in dictum that the conventional doctrine is not applicable to commercial speech and the courts have been burdened with the task to establish whether it does (Lidsky and Wright 56). It has been established by the courts that the doctrine indeed applies to commercial speech. In addition, prior restraint is permissible in instances of preliminary injunctions and cases dealing with intellectual property.
Works Cited
Cornwell, Nancy. Freedom of the Press: rights and liberties under the law. New York: ABDO Publishing Company, 2004. Print.
Farish, Leah. The First Amendment: Freedom of speech, religion and the press. New Jersey: Enslow Publishers, 1998. Print.
Lidsky, Lyrissa and Wright, George. Freedom of the Press: a reference guide to the United States Constitution. California: Preager Publishers, 2004. Print.
Smith, Rich. First Amendment: The Right of Expression. New York: ABDO Publishing Company, 2007. Print.
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