Free+Speech


 * Definitio****n**

//“////[T]he freedom to express one's opinions without, legal penalty, etc.; freedom of expression//censorship” (Oxford English Dictionary, 2010, Italics added). Often found in the following disciplines: Mass media, journalism, communication, political science, psychology, as well as other disciplines.

Although the above definition seems to indicate an unlimited range of freedom concerning “express[ing] one’s opinions” (Oxford English Dictionary, 2010), the concept of Free Speech is more complicated than that. This article deals with the concept of Free Speech from a legal standpoint. You will find in this article a brief history of Free Speech, information concerning Hate Speech, and lastly information on Academic Freedom as a component of Free Speech in America since 1957 (Rabban, 2006 p. xi-xii). This article focuses mainly on Free Speech in an American context and acknowledges that Free Speech can have various definitions and conceptualizations depending upon the nation and or culture within which it is constructed. For that reason, this article should not be taken as a comprehensive account of what the concept of Free Speech entails but rather as a piece to its intrinsic mosaic.


 * History**

Humanity has been concerned with Free Speech long before the “ modern ” and “ post-modern ” eras. John Locke’s arguments on human rights in the 1600s can be seen as one example of this long history (Trager, et al, 2010, 52; 48-49). In America, U.S. citizens enjoy Free Speech as their First Amendment Right, which protects “six freedoms”—No governmental establishment of religion, freedom to practice one’s religion, freedom of speech, freedom of the press, peaceable assembly, and “petition the government for a redress of grievances” (Trager et al., 2010, p. 48).

Since its inception in America however, the concept of Free Speech has changed dramatically (Trager et al., 2010 p. 48-49; 88-89). Some key historical events on this topic include: the Free Speech Movement in the 1960s, which began with a student activist group at Berkley, and resulted in more rights for college students (Downs, 2005, p. 1-6). During this time, college students had been treated as too immature to warrant full Free Speech rights, while citizens of the same age group who were not at the university were afforded full rights (Downs, 2005, p. 1-6). More recently, The Patriot Act of 2002, in response to the September 11th, 2001 terrorist attacks, further changed the concept of Free Speech and some argue it had a “**chilling effect**” on it (i.e. discouraged the use of Free Speech) (Trager et al., 2010, p. 90).

Trager et al. (2010) point out that, “although the First Amendment says government may not abridge free speech, the //prohibition// is not absolute” (p. 88 emphasis added). Because of this lack of absoluteness, the judicial system interprets what is and is not allowed in speech through various means (Trager et al., 2010, p. 88). One such means is “**ad hoc balancing**” (“weighing competing values case by case”) (Trager, et al., 2010, p. 88). Two controversial topics that have had numerous case rulings within Free Speech include Hate Speech and Academic Freedom (Trager et al., 2010, p. 101-104; Rabban, 2006, p. xiii-xiv; Downs, 2005, p. xv-xvii). These are outlined below.


 * Free Speech: Hate Speech**

Hate Speech (not the same as Hate Crime ) is defined by Trager et al. (2010) as “A category of speech that includes name calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like”(p.102). Hate Speech //is// protected by the First Amendment, but “ Fighting Words ” and “ Incitement ” are not (Trager et al., 2010, p. 102).

Beginning in the 1980s some universities tried to establish “speech codes” on their campuses to prohibit Hate Speech (Downs, 2005, p. xv; Trager et al., 2010, p. 103). Some speech codes were overzealous in what they included as “Hate Speech” however and were “struck down” (Shiell, 2006, p. 24). The case against the University of Michigan in 1989 was one famous instance of this (Shiell, 2006, p. 24; Bobbitt, 2008, p. 95-96). Trager et al. (2010) states that many U.S. courts find the speech codes unconstitutional “because they targeted disfavored speech and reduced the flow of information and ideas” (p. 103). Despite this however, in 2001 “almost one-fifth of surveyed universities” had some sort of code against Hate Speech (Trager et al., 2010, p. 103). The universities who adopted such limitations on speech argued that they were “essential to the protection of informed discourse” and the university’s educational “mission” (Trager et al., 2010, p. 103). Trager et al. (2010) also note that despite the universities’ arguments, “Courts have not found [their] justification sufficient to warrant abridging the First Amendment rights of those on campus” (p. 103).


 * Free Speech: Academic Freedom**

According to the last update on the term in the Oxford English Dictionary (1989), Academic Freedom is: “[T]he freedom of a teacher to state his opinions openly without censorship, or without the fear of losing his position”. In history, particularly in the “McCarthy Era” (Rabban, 2006, p. xi) one’s political affiliation could have major ramifications on one’s academic career (Rabban, 2006, p. xi; O’Niel, 2006, p. 43-44). For example, many professors and scholars who were politically communist or were associated with the Communist party during this era were dismissed (Rabban, 2006, p. xi). As a response to this, the Supreme Court ruled in 1957 that Academic Freedom fell under the First Amendment Rights—thus giving protection to professional scholars (Rabban, 2006, p. xi-xii).

The September 11, 2001 attacks added a new dimension to Academic Freedom particularly where national security was thought to be involved and as a result, the **Special Committee on Academic Freedom and National Security in a Time of Crisis** was established on September 11, 2002 (Rabban, 2006, p. xii).

Among numerous views on Academic Freedom, Shiell (2006) offers **three basic views** which “are not mutually exclusive”(as cited in Gerstmann & Streb 2006, p. 19-34). He calls them, “The Civil Libertarian Conception” (as cited in Gerstmann & Streb 2006, p. 19), “The Legal Moralist Conception” (as cited in Gerstmann & Streb 2006, p. 25), and “The Egalitarian Conception” (as cited in Gerstmann & Streb 2006, p. 30).
 * **The Civil Libertarian** view sees Academic Freedom as affording a broad range of liberty (Shiell, 2006, p. 24-25) and Shiell (2006) indicates that for this view, any restrictions on Academic Freedom must the following criteria: “narrowly targe[t] unprotected speech, [be] clear enough to avoid arbitrary enforcement, and…not result in any significant chilling of legitimate expression ” (p. 24). In essence The Civil Libertarian takes a very liberating view of Free Speech but, as Shiell is careful to note, it is __**not**__ affiliated with one particular political party or another (Shiell, 2006, p. 24-25).


 * **The Legal Moralist** view argues that, “public education should be subject to strict moral and legal constraints” (Shiell, 2006, p. 25). Shiell (2006) explains that this perspective views teachers, as “public servants”, who should adhere to the desires of the community within which they teach. Therefore, the content of the education they’re providing should also be subject to that community (Shiell, 2006, p. 25-26).


 * Lastly, **the Egalitarian Conception** argues that “the cause of educational equality and its prerequisites…are compelling enough to warrant restrictions on academic life that civil libertarians and legal moralists do not accept” (Shiell, 2006, p. 31).

In summary, Free Speech is a complicated concept that is not as simple as the freedom to “express one’s opinions without censorship ” (Oxford English Dictionary, 2010). It should also be understood that what is protected by law and condoned by society are two different things as indicated by Shiell’s (2006) article (p. 25). Lastly, two topics among many that are debated in Free Speech, include Hate Speech and Academic Freedom (Trager et al., 2010, p. 101-104; Rabban, 2006, p. xiii-xiv; Downs, 2005, p. xv-xvii).

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 * References**

Bobbitt, R. (2008). //Exploring Communication Law: A Socratic approach//. Pearson Education, Inc.

Downs, D. A. (2005). //Restoring Free Speech and Liberty on Campus.// Oakland, CA: Cambridge University Press & Independent Institute.

O’Niel, R.M. (2006). Academic freedom in the post-September 11 era: An old game with new rules. In E. Gerstmann & M. Streb (Eds.), //Academic Freedom at the Dawn of a New Century// (43-60). Standford, CA: Standford University Press.

Academic. (1989). In //Oxford English Dictionary//. Retrieved from http://dictionary.oed.com

Free. (2010). In //Oxford English Dictionary//. Retrieved from http://dictionary.oed.com

Rabban, M.D. (2006). Foreword. In E. Gerstmann & M. Streb (Eds.), //Academic Freedom// //at the Dawn of a New Century// (ix-xvi). Standford, CA: Standford University Press.

Shiell, T. C., (2006). Three Conceptions of Academic Freedom. In E. Gerstmann & M. Streb (Eds.), //Academic Freedom at the Dawn of a New Century// (17-40). Standford, CA: Standford University Press.

Trager, R., Russomanno, J., Dente Ross, S. (2010). //The Law of Journalism & Mass// //Communication//. Washington, D.C.: CQ Press.