Freedom of speech is the human right to be free to express his/her thoughts. Currently freedom of speech includes freedom of expression, both orally and in writing (freedom of the press and the media); to a lesser extent refers to the political and social advertising (political campaigns). This right is mentioned in a number of international documents, including the Universal Declaration of Human Rights (Article 19), the European Convention on Human Rights and Fundamental Freedoms (Article 10) and the First Amendment of the United States Constitution. The purpose of the essay is to show that constitutional enforcement of the freedom of speech is one of the prerequisites for open democratic society in the United States.
Freedom of speech is sometimes at odds with the rights and freedoms of others. Legal norms of different states usually regulate restrictions on freedom of speech on their territory. Under international law, restrictions on freedom of speech are required to meet three conditions: they must strictly comply with the law, pursue a legitimate aim and be necessary and appropriate to achieve this goal. Laws imposing limitations should strive to be unambiguous and not give an opportunity for different interpretations. At this point Xinyi Wang in his article “Freedom of Speech in the United States constitutions” provides important suggestions on two issues: why freedom of speech is secured by the Constitution and scope of protection is guaranteed by the First Amendment (Wang).
The most acknowledged legitimization for freedom of speech was the theory of market place of ideas of thoughts. The main idea of this concept is that truth can be obtained in a fair competition of ideas. In this case even someone’s illiberal discourse should be allowed. The “market place” rationale infers that any thoughts having even the scarcest impact on social quality ought to be secured. The First Amendment provides fundamental opportunity to promote plans, including strange thoughts, disputable plans, and even plans hostile to the predominating atmosphere of presumption. Government should be neutral toward different variations of discourse to assure that every member of the society can freely express his/her thoughts if they do not harm other people’s rights and beliefs. Wang distinguishes between other possible justifications of freedom of speech apart from “market place” theory (Wang). Some constitutionalists proposed the "liberal theory," which states that freedom of speech is a part of political and economic liberties. Freedom of speech therefore gets to be some piece of a bigger right to freedom of representation and personal development.
Nevertheless, freedom of speech has its boundaries. In legal practice, the Supreme Court puts some limitations on freedom of speech by characterizing categories of speech, which are regarded not completely secured under the First Amendment. These classifications generally include promotion of unavoidable illicit behavior, slander, indecency, and deceitful representation. In order to put any restrictions on the freedom of speech one should prove that particular case fall under one of the aforementioned exceptions. The Supreme Court cannot punish speech if it has illegal prerequisites. The only possibility to overstep universal right for freedom of speech is meeting a three-part criterion (Wang): the speech is directed at unlawful action, its advocacy is directed toward breaking the law, and advocacy is likely to produce illegal conduct. However, Wang clearly stated that meeting the criteria of “clear and present danger” is extremely difficult. Some pro-war and racism speeches were considered to be within the scope of the First Amendment’s protection, therefore were not limited by the Supreme Court (Hess v. Indiana or NAACP v. Claiborne) (Wang).
CONCLUSIONS
The essay provided two approaches to freedom of speech defense: “the liberal theory” and the “market place”. In both case freedom of speech is seen as a part of inseparable human freedom and liberties. Even if speech can cause potential harm to the society it can be justified in terms of fair competition of thoughts. Xinyi Wang pointed out at the fact that Supreme Court can overstep this freedom only when speech violates the law, produces illegal conduct, or directs at illegal action. Even if all the aforementioned criteria are met, the Supreme Court has a broad filed of interpretation to justify freedom of speech.
Works Cited
Wang, Xinyi. ""Freedom of Speech" in the United States Constitution" Perspectives 2:5 (2001). <http://www.oycf.org/Perspectives2/11_043001/freedom.htm>
