Thursday, August 16, 2007

Concise Case Backgrounder on Freedom of Speech in the US

In many Supreme Court decisions, the freedom of speech was either limited or protected based on the tests used by the Cour, such as the dangerous tendency test and the clear and present danger test, notwithstanding defining examples of prior restraint and subsequent punishment as part of state curtailments of the freedom of speech. More so, the Court also limited freedom of speech by excluding obscenity from such freedom.

In the landmark case of Near v Minnesota, the Court said –

'To prohibit the intent to excite those unfavorable sentiments against those who administer the Government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatrad of the people, against being exposed to it by free animadversions on their characters and conduct.

In New York Times v United States, where the government sought to bar the publication of the Pentagon papers, the Court said –

Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity xxx The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden.

In Miller v California, the Court set the rules on the determinacy of curtailing freedom of speech on the basis of obscenity in which material is taken as obscene if “(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

These are only some of the landmark cases that the US Supreme Court decided upon in relation to freedom of speech. In all of these, it is clear that the freedom of speech is never absolute and always subject to the police power of the state, but subject to review of the Court. These are all part of the American democracy we all so cherish – the system of checks and balances and powers of the state, in a backdrop of freedoms and rights granted to the sovereign American people.

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