Balancing Free Speech and National Security

¶ … Right to Expression: The Fine Line of the First Amendment

Following the terrorist attacks of September 11, 2001 and the enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the PATRIOT ACT), there has been a growing debate concerning the proper role of the government in protecting Americans while balancing their right to free expression. To determine the facts, this paper reviews the relevant literature to provide a discussion concerning the line between an individual's right to expression and the role of the government to protect its citizens from harm, including some salient examples of this conflict in the nation's past. An analysis concerning whether Americans have come any closer to reconciling these issues is followed by a summary of the research and important findings in the conclusion.

Review and Discussion

On the one hand, the First Amendment to the U.S. Constitution makes it clear that, "Congress shall make no law . . . abridging the freedom of speech" and this right was extended to all Americans at the state level by virtue of the Fourteenth Amendment. On the other hand, though, the U.S. government has a fundamental obligation to protect Americans from harm. Therefore, the question remains at what point do citizens' right to free speech become a threat to national security to the extent that the government must intervene in order to protect Americans? This question has assumed new importance and relevance following the terrorist attacks of September 11, 2001 when the federal government sought to protect all Americans through a global war on terrorism. In this regard, Youm reports that, "Since the September 11, 2001, terrorist attacks on the United States, a raging debate over how to balance national security with freedom of expression has taken on a heightened sense of urgency" (p. 446). The laws enacted against so-called "hate speech" in the U.S. in response to the 9/11 terrorist attacks have been a particularly troublesome issue for many. Indeed, from the perspective of some analysts, the laws against hate speech may be well-intentioned, but they operate by have a chilling effect on free expression. For instance, Berg (2015) emphasizes that, "Pleading the fundamental right to freedom of expression simply looks false when hate speech laws are sitting on the statute books, waiting to be used" (p. 19).

Perhaps the most well-known example of limits to free expression in view of the public's interests can be found in the Supreme Court case, Schenck v. United States (249 U.S. 47, pp. 51-52, 1919) wherein Justice Holmes explained, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." At the time, Justice Holmes also emphasized that each free expression case must be viewed in terms of whether free expression crosses the line to endanger the public interest: "The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (Schenck v. United States, 1919, p. 52). This restriction on free expression is the reason that whistleblower Edward Snowden remains on the run from the federal government for divulging national secrets (Munger, 2015).