Everyone is aware (or at least should be) of the protections the First Amendment affords us as Americans. Our government can’t persecute us for what we say, the religion we practice, the news we decide to print, for protesting against them, and for petitioning them. 

But most people don’t realize how much of an outlier the United States is when it comes to protection of freedom of speech. We go to extreme ends and sometimes tolerate extremely toxic opinions to defend this right. The United States is unique in the protections of freedom of speech its citizens have. Things you can say in America could get you sent you to prison or even handed a death sentence in other parts of the world. It is widely known that anti-government speech in North Korea gets you and your family sent to a labor camp for years, and in places like China criticizing the ruling party can get you in a lot of trouble. Other countries like Iran, Indonesia, and Saudi Arabia have blasphemy laws on the books and enforce them, preventing speech against religion, which is in many cases punishable by death. And somewhat surprisingly in Europe many countries enforce laws against hate speech, cracking down on Islamophobia and xenophobia, especially online. 

Meanwhile, in the United States, you can publicly insult as many religions as you want, criticize every politician in office, and yell obscenities about every minority group, and legally have no consequences. You might anger some people and alienate friends and family, but you won’t be executed, thrown in jail, or have to pay a fine as a result of what you say. Of course there are exceptions made in cases where the safety of the public is jeopardized, like yelling “fire” in a crowded theatre and directly threatening someone. Aside from those safety exceptions, by and large you can legally get away with saying anything you want. 

Given how ardently we defend the First Amendment in America today, one would think it has a long history of protecting people’s rights to speech and protection of the press going all the way back to early America. But in fact, up until the 20th Century, the First Amendment was largely overlooked and somewhat invisible, and a Bill of Rights almost never even happened. Many of the Founders thought the addition of one to the Constitution was unnecessary and that it would just state (what they thought were) the obvious rights of men. Notable opponents included Alexander Hamilton, who wrote in Federalist 84 “the constitution is itself in every rational sense a bill of rights”. Opponents of the Bill of Rights did not think explicitly protecting rights was necessary because they did not think that the Constitution gave the government enough power to infringe upon our rights.

James Madison initially opposed the addition of a Bill of Rights, sharing similar sentiments to his colleagues. However, once Madison realized that he could use the addition of a Bill of Rights to convince opponents of the Constitution to get on board with ratification, he became the draftsman of the Bill of Rights. Once James Madison presented a draft to the House of Representatives, many debates were had over the language in the amendments, and large changes were made to the document before it was ratified. For example, the original text of the First Amendment is as follows:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances”

Pretty wordy isn’t it? Especially compared to the version that was ratified and that we all know:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

The biggest difference between the two is how they begin and what that means. Part of what makes the First Amendment so strong is how it begins: “Congress shall make no law…”. This clause puts up a barrier against any legislation that curbs the rights stated within, instead of merely stating that all citizens have the right to freedom of speech, religion, etc. The “negative” wording prevents Congress (as well as the Executive branch and state governments) from infringing upon our First Amendment Rights. The Bill of Rights does not outline rights that the government grants us. Rather, it is a list of (some) natural rights that we are all born with that the government is prevented from infringing upon.

However, despite the legal protections afforded to them by the First Amendment, freedom of speech and freedom of the press has been trampled many times throughout American history. To quote George Orwell, “If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them”. Many times through our history, even up to the 20th Century, the First Amendment was ignored in the face of things people cared about more. Book banning and government censorship were common practice; including the Government preventing copies of the play Ulysses from being brought into the country, the suppression and jailing of abolitionists in the years leading up to the Civil War, and the imprisonment of people spreading anti-war sentiments during the First World War. Just because the First Amendment has been there all through our history does not mean it has always been honored.

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“Freedom of Speech” by Norman Rockwell (1941), depicting a lone dissenter against a city’s plan to build a new school.

The Orwell quote I shared in the paragraph prior is important to remember today, as people begin to question if freedom of speech is really all that good. A rising sentiment on the political left is that not all speech should be protected, especially hate speech. Many are starting to believe that speech that discriminates, antagonizes, and angers others, especially minorities, should not be protected by law. 

Well, they are wrong. Americans have the right to say anything they would like without facing punishment from the government. Short of directly threatening someone or knowingly publishing lies about an individual, every American has the right to have any opinion of any person, place, or group they want, and they have the right to voice that opinion. Freedom of speech is one of the paramount pillars of liberty in a democracy and should be protected at all costs, even if the speech upsets or angers people. To quote Benjamin Franklin, “Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins”.

I was inspired to write this after reading The Soul of the First Amendment by Floyd Abrams. Considered one of the greatest free speech advocates of modern times, Abrams has litigated cases like The Pentagon Papers and Citizens United, and his expertise is demonstrated in the book.  It answers questions like “Why does the United States have such a strong protection of freedom of speech?“, “Should reporters be punished for posting government information given to them by leakers?” and “When corporations donate to political campaigns, is that protected free speech?”. Several of the explanations and arguments I outlined in this piece came from the book, and I highly recommend reading it.

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