Freedom of Expression | Definition

Doc's CJ Glossary by Adam J. McKee

Freedom of Expression refers to the First Amendment right of people to express their ideas and opinions through any form of communication.

The freedom of expression is one of the fundamental rights protected by the First Amendment of the United States Constitution. This right guarantees that individuals have the right to express their thoughts, ideas, and opinions without fear of government censorship or punishment.

Freedom of expression is a broad term that encompasses various forms of communication, including speech, writing, art, music, and other forms of expression. The right to freedom of expression extends to all individuals, regardless of their beliefs, political affiliation, or social status.

The protection of free expression has been a long-standing issue in the United States, with various court cases addressing its scope and limitations. In the landmark case of Schenck v. United States, the Supreme Court established the “clear and present danger” test, which allows the government to restrict speech that presents a clear and present danger to public safety.

However, the Court later expanded the scope of the First Amendment in cases such as Brandenburg v. Ohio, which established the “imminent lawless action” test. This test requires the government to prove that the speech in question is likely to incite imminent lawless action.

The protection of free expression has also been challenged in cases involving hate speech and obscenity. While hate speech and other forms of offensive speech are generally protected under the First Amendment, there are limitations. For example, hate speech that is intended to incite violence or discrimination may be restricted.

Obscene speech is also subject to restrictions, but the definition of obscenity has been the subject of much debate. In the landmark case of Miller v. California, the Supreme Court established a three-part test to determine whether speech is obscene. The test takes into account whether the speech appeals to prurient interests, whether it depicts sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value.

In addition to free expression, the First Amendment also protects the freedom of the press. This protection extends to all forms of media, including newspapers, magazines, books, television, and the Internet. The press has a crucial role in a democracy, as it provides citizens with the information necessary to make informed decisions and hold the government accountable.

While freedom of expression is a fundamental right in the United States, it is not an absolute right. The government may restrict speech in certain circumstances, such as when it presents a clear and present danger or is likely to incite imminent lawless action. However, these restrictions must be narrowly tailored and cannot be used to suppress speech merely because it is unpopular or offensive.

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Last Modified: 04/09/2023

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