The Right to
Freedom of Expression
in America
By D. Bowden

The American Bill of Rights guarantees to every person in the United States the rights and liberties that are the basis of democracy. The first of the ten amendments that make up the Bill of Rights guarantees the freedom of religion, speech, assembly and petition. Justice William J. Brennan wrote, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The commitment of the principle of free speech has been repeatedly tested beginning with the Alien and Sedition Acts of 1798 to the present day intolerance for individual and unpopular opinion.

In doing research for this presentation, I found some interesting facts from our past history concerning sedition in the years leading up to the Civil War. Nothing prevented states from enacting laws that limited expression–and many did. Political opinions were often expressed at the speaker’s (or printer’s) own peril. In the years leading up to the Civil War, slavery was the most hotly debated issue in the country. Most Southern states passed laws that barred any criticism of slavery, on the theory that speaking against it would incite revolts. A fact that I did not know was that in some cases it was a crime to even receive anti-slavery literature! And in Georgia, under an 1835 law, the editor of a newspaper that opposed slavery could be punished by death!

In the North, in contrast, dozens of abolitionist newspapers sprang up to oppose slavery. However, they weren’t very popular with general public opinion. One of the best known abolitionists, William Lloyd Garrison, who published the anti-slavery paper, The Liberator in Boston, was dragged through the streets by an angry mob. Garrison framed his arguments in strong terms–too strong for the public to accept. He believed moral law outweighed civil law and his paper carried such statements as, “The existing constitution of the United States is a covenant with death and an agreement with hell.” To illustrate his point, he once burned a copy of the document in public. James Fenimore Cooper made an interesting point in his essay The American Democrat. He states, “Were the majority of a country to rule without restraint, it is probable as much injustice and oppression would follow, as are found under the dominion of one.” Even though the majority believes a certain way, doesn’t mean that it is always right in its beliefs or actions. Another abolitionist editor, Elijah Lovejoy, was killed for his published statements. His office was attacked and his presses destroyed twice. Finally in November 1837, after moving to Alton, Illinois, Lovejoy was shot dead while trying to save his third press from the same fate.

These examples of intolerance show us that the general public opinion of the north was not that different from the south. These stories underscore an important point. In a democratic society, it is unpopular opinion–not the view of the majority that is in danger of suppression. This point would be made clear again and again throughout our history. In 1980, Supreme Court Justice, Arthur Goldberg warned, “We are again becoming intolerant of dissenting voices, forgetful that out nation was founded and forged by dissenters and that while they are often misguided, on occasion they are right.”

In more recent times, Americans are more likely to support freedom of expression in the abstract than they are when specific cases arise. According to Elaine Pascoe in her book Freedom of Expression, various studies in 1992 have shown that less than half of all Americans thought unpopular opinion should not be banned outright by the majority. Only a third believed high school teachers have a right to express opinions that go against community standards. Some forty-six percent would grant to a federal board of censors the power to decide which televsion programs can or cannot be shown, and so on. The most remarkable aspects of freedom of speech in America is that the concept has survived so many challenges since it was first set out more than 200 years ago. Freedom of expression is the core value of democracy. When we allow it to be limited–no matter how necessary or well-meaning the limits seem– we do so at our own peril. Chief Justice Earl Warren once wrote, “Our own interests are so personal to each of us that it is often extremely difficult to
appreciate a problem in the light of interest of others." Yet, this is what we must do. . . There are

neither rights nor freedoms in any meaningful sense unless they can be enjoyed by all.”