Freedom of Speech

Freedom of Speech:
The Good, The Bad, and The Ugly

Since the beginning of time, communication has existed. From the grunting of the primitive caveman, to conversations in languages we have developed, to the ever evolving realm of E-mail and the Internet, we have always found ways to communicate with one another. It is a human need to communicate with other humans, a need that can be found in our very own DNA. And, when this right is violated, when people or governments try to stop us from sharing our ideas, beliefs, or even dreams, we fight. We battle with our heart and soul for one simple right: freedom of speech.

Freedom of speech is the right to express oneself and one's ideas, in any shape or form. It is a basic human right, stating that all people should be allowed to express their ideas and views, without being restricted by anyone, especially the government. This right has allowed us to freely express ourselves, and has brought forth some of the greatest written and theatrical works ever. Freedom of speech has allowed us to share in our common ground, and to understand and be more open to the ideas of others. But, as with everything good, there are problems. There is no clear definition of freedom of speech. A very fine line exists between what is acceptable, and what is beyond expressing thoughts and opinions and into much deeper territory. But before we go into this “deeper territory,” let's look at the history of freedom of speech.

Freedom of speech has existed since the beginning of time, as people have always wanted to express their ideas. However, the United States was the first nation to ever guarantee all of its citizens this right. One of the fundamental people in the movement toward freedom of speech in the United States was John Peter Zenger. In 1735, Zenger published his complaints to the British governor of New York in his newspaper, The New York Weekly Journal. This daring move brought Zenger quite a lawsuit, but, more importantly, it was the first step toward freedom of speech in the United States. About forty years later, the United States would be fighting Britain for its independence. What was one of the issues that started the war? You guessed it, freedom of speech.

The United States broke new ground with the First Amendment to the Constitution in 1789. The writers of the Constitution, mainly James Madison, assisted by Thomas Jefferson, decided that the Constitution did not cover human rights, such as freedom of speech. To fix this, they wrote the Bill of Rights, or the first ten amendments to the Constitution. The First Amendment states: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress or grievances.” Many nations proceeded to follow America's lead, guaranteeing their citizens this basic human right.

In 1948, the United Nations made freedom of speech an universal right. Article 19 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The United Nations went even further, guaranteeing the right to freedom of speech to children. Article 13 of the Convention on the Rights of the Child states:
“1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary (a) for the respect of the rights or reputations of others or (b) for the protection of national security, public order, or of public health or morals.” These famous documents guaranteed freedom of speech to absolutely every human being on the planet. And what an impact they would have!

Freedom of speech has had a huge impact on the creative works of America and the world. It gives us the chance to use our creative side, and express ourselves however we wish, through writing, speech, artwork, or any other media. Freedom of speech has greatly changed today's published works from the publications of long ago. Newspapers are now allowed to have editorials and letters to the editor, where people can send in letters expressing their opinions. Books can now be found on most subjects, and the author can freely express his or her ideas throughout the pages, without being repressed by the government. The public, today, has access to more material than ever before. People are becoming more open to new ideas, and young people are learning and growing from their exposure to new concepts. Most of all, people can contribute their ideas throughout their world, and know that their ideas and feelings are important.

Today, though, many people feel that freedom of speech is impacting society in negative ways. The media today is constantly trying to "top" what it has done in the past. Reality TV shows have evolved from TV stations trying to come up with something new and better than before. And unfortunately, as the entertainment industry has discovered, sex sells. Many people feel that today's generation of young people do not have the strong morals and beliefs like past generations. And this is where the problems begin.

If freedom of speech remained how it was originally written in the Bill of Rights, the government would have absolutely no control over the media. However, there are many people out there today who go past its limits. There is no solid line between what is freedom of speech, and what is not. However, our government has created some guidelines, which we use to define between freedom of speech and profanity today.

The United States uses the term obscenity for “sexual material so offensive that it is deemed by the Supreme Court and has virtually no First Amendment protection.” To determine if a certain material is obscene, our government developed the Miller Test. The Miller Test was developed in 1973 after the trial of Miller v. California. To perform the Miller Test, the court takes the material in question, and decides whether it applies to the following statements:
1. The average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest.
2. The work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law.
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Statement number one states that the materials applies to the prurient interest. Prurient interest refers to “material that is intended to excite lewd, lascivious, shameful, or morbid thoughts about sex.” The second statement refers to patent offensiveness. There are two guidelines to determine whether or not a material is patently offensive. They are:
1. Patently offensive representations or depictions of ultimate sexual acts, normal or perverted, actual or stimulated.
2. Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
The third statement means that the material must have some artistic value. Many times, courts call in art or literature experts to determine whether or not any value to the material exists. The court decides whether or not the materials fits the criteria of the Miller Test. If the material does, the person will be convicted. A usual charge for obscenity can result in a $100,000 fine and up to ten years in prison.

However, there are exceptions to this rule. First of all, the defendant must be aware of the actions that led to the indictment. This is known, in the legal world, as scienter. There is also another exception. Child pornography is always considered obscene, whether or not it passed the Miller Test. This ruling came about as child pornography is connected with the abuse of children.

Today, there are laws which combat obscenity. The United States Code contains almost thirty articles on obscenity. However, the lengthy articles of the code will not fit into the report.

Indecency is a special term used in the electronic media. It is a “class of speech that is restricted on the public airwaves though it would not usually be considered obscene.” Indecency has come about mainly to protect minors from being exposed to explicit material. Rules of indecency are also known as rules of censorship, which will be mentioned later in the report.

The First Amendment was originally implemented to stop censorship, or the government's deciding what can or can't be published or broadcasted. A common example of censorship is the bleeping out of certain words on T.V. or the radio. However, with the rising amount of crude material, especially over TV, censorship by the government has begun once more. Censorship has had a long history, though, dating back before Christ.

Throughout the history of the world, people have attempted to censor the what others say and publish. This censorship was first recorded in 399 B.C. A Greek philosopher named Socrates was sentenced to death after being accused of being a troublemaker and spreading new ideas. He had only told his students to ask difficult questions about the world and how it worked. The government considered his new way of thinking a threat to Greek life, so they sentenced him to death. This censorship that began so long ago would turn into something much bigger. In the 1930s, during the Nazi era in Germany, radio stations were completely censored by the government. Only pro-Nazi messages were allowed to be broadcast. Today, censoring has become a bigger issue. Today, many schools censor the books in their libraries. Just a few years ago, the Harry Potter books were banned from Cedar Rapids schools. Many people felt that the books gave evil messages of witchcraft and the devil. However, if children have freedom of speech, as Article 19 Convention on the Rights of a Child states, then shouldn't they be able to decide whether they want to read the book or not?

Today, there are rules regarding censorship for many published works. They are implemented not to keep people from voicing their opinion, but to protect minors from being exposed to harmful and vulgar material. All of these rules are enforced by the Federal Communications Commission, an federal agency headed by five commissioners. This report will talk about the basic rules for publications, the broadcast media, cable television, the Internet, and other media.

Publications are probably the least censored media. Libraries and book stores can keep minors from checking out of buying material inappropriate for their age. There are some major rules, though, that imply not only in publications, but in all medium. The first one is risk to public safety. Any information disclosed in a book cannot present any risk to the well-being of the people in the United States. Furthermore, information may not pose a risk to the security of our nation. For example, disclosing secrets of our Central Intelligence Agency in a book would be a federal offense. The second rule is about damage to reputation. Any information published must not contain defamatory content that would harm a person's reputation. In fact, when publishing a book, especially non-fiction, a person must be careful of what terms they use, in case of lawsuits. For example, if a person point-blank calls someone a drug addict, and the person has no evidence that they really are, a lawsuit could be filed. Along with this rule, it is very important when writing that you do not put the "blame" on a certain person. A person cannot, for example, in a book, rightfully blame our nation's current economic problems entirely on President Bush, because there are other factors that affect our nation's economy. The final rule of censorship in publications is plagiarism. A person cannot copy another's work and call it your own. It is simply against the law. They must also make sure to have permission before publishing certain government records and documents. Acts such as the Federal Sunshine Act and the Freedom of Information Act have allowed access to government meetings and records, but some records still remain confidential. Finally, a person must always make sure they have their facts correct, especially in a newspaper. A simple error can lead to the damaging of someone's reputation, and the person, whose reputation was damaged, could sue. This is why it is important to be careful when publishing written works.

There are certain rules for censorship in the broadcast media as well. Many of them are included in the Communications Act of 1934, which covered areas such as licensing, candidate access, censorship rules, and hoaxes. One of the main rules is known as the equal opportunities rule. This means that the television or radio station must provide equal opportunity for all candidates in an election to advertise and hold debates on the station. There are three other main rules for the broadcast media. They are:
1. The personal attack rule, which prevents people from being victim to be a personal attack during a broadcast.
2. The political editorial rule, which allows for, when a candidate is endorsed over a broadcast, that the other candidates have equal opportunity to respond to the endorsement, if they choose.
3. The Zapple rule, which allows for equal opportunity to the supporters of candidate and the supporters of the opponent to voice their opinion.
Another rule, that applies to both radio and television, is about hoaxes. It is a federal offense to send false signals of an attack. For example, during the Persian Gulf War, a radio station in St. Louis, Missouri sent out a false signal that our nation was under a nuclear attack. They were fined $25,000 for starting this hoax. Finally, there are a few rules that apply only to television. Two of these rules apply to children’s programming, stated in Children’s Television Act of 1990. Indecent material is not to be broadcast during hours while children could be viewing it. There are also rules of how many commercials can air during children’s programming. The current rules allow for ten and a half minutes of commercials per hour on weekends, and twelve minutes per hour on weekdays. The final rule of broadcasting is the identification of the sponsor. When broadcasting a program, you have to identify its sponsors, and have a visual ID for each of them. These rules again, are important to keep in mind when broadcasting the news or making a TV show.

Unlike the broadcast media, cable television has been able to evade most rules of censorship. Because it is not broadcast into every home, it has been questioned whether cable should be censored at all. The Cable Television Consumer Protection and Competition Act, formed in 1992, put forth some rules against indecency. The same rules for broadcast media can be applied to cable, however, because a person chooses to bring cable into his or her home, lawsuits are very rare. This is why many channels, such as MTV, have been able to keep on going, while still airing indecent material.

Should the Internet be censored? A big topic of argument for many politicians, as well as many common people, is whether or not material on the Internet should be regulated. So far, little regulation has been implemented, and it has not been well enforced. The only federal law dealing with censorship on the Internet, to date, is the Communications Decency Act. The Communications Decency Act, put into effect in 1996, states: “Whoever in interstate or foreign communications knowingly uses any interactive computer service to display, in a manner available to a person under eighteen years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory organs activities or organs, regardless of whether the user of such service placed the call or initiated the communication, shall be fined up to $250,000 or imprisoned not more then two years, or both.” However, this act, because it has not been readily enforced, has done little to regulate the material on the Internet.

Censorship has been found in other forms, too. Motion picture censorship has been regulated through the rating system, G, PG, PG-13, R, and X. Postal censorship has banned the spreading of indecent material to minors, and has kept obscene material from being sent through the mail. Finally, telephone censorship has become yet a new avenue of this ever modernizing world. The so-called “dial-a-porn” telephone services have been banned and prosecuted through the Federal Communication Commision’s Amendment to the Communications Act. All these censorship rules have been put imposed for one main purpose: to protect the people. But are they violating our own rights? This questioned will be brought up later in the report.

Even with all these rules, there are still issues that are not covered. One of them happens to be pornography. The current view on pornography, i.e. Playboy Magazine, etc., is that it is a form of artistic speech, and thus it has First Amendment protection. And though there have been many objections and lawsuits, the view still stands.

Probably the most famous court case involving freedom of speech in the United States is Schneck v. the United States. In 1917, all men were required to sign up to be in the military during World War I. Charles Schneck opposed this. He felt that men should have a choice whether or not they join the draft. He wrote a leaflet, which he sent through the mail to many draftees. When it was discovered by the postal service, Schneck was arrested. His case went to the Supreme Court, who ruled his leaflet a “clear and present danger” and made it a so-called crime to speak out against our nation’s military. Never was Schneck even considered to have the right to freedom of speech.

Today, other controversial issues have come up. Should gay people be allowed to freely speak? Should schools be allowed to ban library books? Should swearing be allowed on regular television? And, most of all, does censorship violate our right to freedom of speech? The fate of issues, like these, will soon be decided.

Every person has the right to freedom of speech. We all can express our thoughts, feelings, and ideas, however we wish. But, as with everything, there are rules. These rules of censorship are implemented to protect the public from any harm. But do they violate our right to freedom of speech? Do they provide too much restraint in the world of communication? Are they even necessary at all? The problem with these issues is that they are matters of opinion. Many would agree that there is no right or wrong answer. But, inevitably, the government is going to have to make the decision: yes, or no?

Today, we are emerging into a new world of profanity. We can choose to go along with this trend of sexual material, allowing this world of ribaldry to become part of our daily lives. Or, we can choose to take a stand against it. We can choose to keep our morals and values, and bring decency back to society. However, one thing is for sure. The decisions we make now will forever affect the future of society.

Bibliography

Alonso, Karen.
Schenck v. United States: Restrictions on Free Speech.
Berkeley Heights: Enslow Publishers, Inc.,
1999.

Pascoe, Elaine.
Freedom of Speech: The Right to Speak Out in America.
Brookfield: The Millbrook Press,
1992.

Steele, Phillip.
Freedom of Speech.
New York: Franklin Watts,
1997.

Zelezny, John D.
Communications Law: Liberties, Restraints, and the Modern Media.
Belmont: Wadsworth Publishing Company,
1997.

Created By: Molly S.
Created: March 26, 2004
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