This paper examines the ongoing tension between the First Amendment right to free expression and the federal government's obligation to protect citizens from harm. Drawing on legal precedent, post-9/11 legislation, and scholarly commentary, the paper traces how courts and lawmakers have attempted to define the boundary between protected speech and speech that poses a clear and present danger. Key examples include the Supreme Court's ruling in Schenck v. United States, the chilling effects of hate speech laws, and the government's response to Edward Snowden's disclosure of national security secrets. The paper concludes that, despite decades of legal development, the debate over reconciling free expression with national security remains unresolved.
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. This paper reviews the relevant literature to provide a discussion of 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 of whether Americans have come any closer to reconciling these issues is followed by a summary of the research and important findings in the conclusion.
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, the U.S. government has a fundamental obligation to protect Americans from harm. The question therefore remains: at what point does a citizen's right to free speech become a threat to national security such that the government must intervene?
This question has assumed new importance and relevance following the September 11 attacks, when the federal government pursued a global war on terrorism. In this regard, Youm (2004) 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 response to those attacks have been a particularly troublesome issue for many. From the perspective of some analysts, hate speech laws may be well-intentioned, but they operate by having a chilling effect on free expression. As Berg (2013) emphasizes, "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 (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" (pp. 51–52). 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 a fugitive from the federal government for divulging national security secrets (Munger, 2015). His case illustrates how the boundaries of constitutionally protected expression continue to be tested in the modern era, particularly when individuals claim a public interest justification for disclosing classified information.
The research was consistent in showing that, notwithstanding the right to free expression guaranteed by the First and Fourteenth Amendments to the U.S. Constitution, this right is counterbalanced by the obligation of the federal government to ensure that citizens are protected from harm. The debate over the extent to which the government should restrict free expression, however, remains heated. Because the First Amendment is among the most cherished rights of American citizens, it is reasonable to conclude that this debate is far from over.
Berg, C. (2013, September). Free speech lost in translation. Review — Institute of Public Affairs, 67(3), 18–23.
Munger, M. (2015, Spring). No place to hide: Edward Snowden, the NSA, and the U.S. surveillance state. Independent Review, 19(4), 605–609.
Schenck v. United States, 249 U.S. 47, 51–52 (1919).
Youm, K. H. (2004, Summer). The four freedoms of the First Amendment. Journalism and Mass Communication Quarterly, 81(2), 446–450.
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