Freedom of Expression
Freedom of speech, of the press, of association and assembly and the ability to petition the government: this set of guarantees protected by the First Amendment comprises what we refer to as freedom of expression.
Though freedom of expression is at the very top of the Bill of Rights, the principle hasn’t always been enforced. Indeed, Massachusetts was long known more for its “banned in Boston” censorship of “objectionable” publications and motion pictures than for its embrace of free expression. However, First Amendment protections came to life during the 20th century, as courts responded to government attempts to suppress the speech of a wide variety of unpopular groups, including religious minorities, suffragettes, birth control advocates, labor organizers, political dissenters, racial supremacists, and pacifists.
Eventually, courts ruled that speech could only be suppressed if it met the legal definition of “obscenity,” or was intended, and likely to produce, “imminent lawless action.” They determined that the First Amendment also applied to public schools, and that it protected “symbolic speech” – nonverbal expression whose purpose is to communicate ideas, such as burning the flag. The government could put “time, place and manner” restrictions on meetings and demonstrations, but it could not deny a permit for those assemblies based on the content of their expression.
The ACLU opposes government attempts to restrict freedom of expression, even – or perhaps especially – the expression of unpopular or offensive ideas. Make no mistake: the ACLU does not endorse all the speech it defends. It would be impossible to simultaneously endorse, for example, pro-equality messages and virulently anti-gay rhetoric. But our constitution does not allow the government to pick and choose what ideas people can and cannot express, and the ACLU does not pick and choose the speech it defends.
New challenges facing the First Amendment in the 21st century include a range of issues presented by the Internet and digital technology, and the extent to which the government seeks to limit and even criminalize mere expression in its efforts to prevent violence or protect security.
“If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” – Justice Holmes
Read more about specific Freedom of Expression topics
Legal Cases
American Booksellers Foundation for Free Expression v. Coakley
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