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“. . . While the Governments, State and Federal, have expansive powers to curtail action, and some small powers to curtail speech or writing, I think neither has any power, on any pretext, directly or indirectly to attempt foreclosure of any line of thought. Our forefathers found the evils of free thinking more to be endured than the evils of inquest or suppression. They gave the status of almost absolute individual rights to the outward means of expressing belief. I cannot believe that they left open a way for legislation to embarrass or impede the mere intellectual processes by which those expressions of belief are examined and formulated. This is not only because individual thinking presents no danger to society, but because thoughtful, bold and independent minds are essential to wise and considered self-government.”
“Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to reexamine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate's complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the
citizen to keep the Government from falling into error. “
[American Communication Association v. Douds, 339 U.S 382, 442 - 443 (1950)] |
It is a fundamental principle, long
established, that the freedom of speech and of the press which is
secured by the Constitution, does not confer an absolute right to
speak or publish, without responsibility, whatever one may choose,
or an unrestricted and unbridled license that gives immunity for
every possible use of language and prevents the punishment of those
who abuse this freedom. 2 Story on the Constitution ( 5th Ed.) 1580,
p. 634; Robertson v. Baldwin,
165 U.S. 275, 281 , 17 S. Ct. 326; Patterson v. Colorado,
205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689; Fox v.
Washington, 236 [268 U.S. 652, 667] U. S. 273, 276,
35 S. Ct. 383; Schenck v. United States,
249 U.S. 47, 52 , 39 S. Ct. 247; Frohwerk v. United States,
249 U.S. 204, 206 , 39 S. Ct. 249; Debs v. United States,
249 U.S. 211, 213 , 39 S. Ct. 252; Schaefer v. United States,
251 U.S. 466, 474 , 40 S. Ct. 259; Gilbert v. Minnesota,
254 U.S. 325, 332 , 41 S. Ct. 125; Warren v. United States,
183 F. 718, 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800. Reasonably
limited, it was said by Story in the passage cited, this freedom
is an inestimable privilege in a free government; without such limitation,
it might become the scourge of the republic.
That a State in the exercise of its
police power may punish those who abuse this freedom by utterances
inimical to the public welfare, tending to corrupt public morals,
incite to crime, or disturb the public peace, is not open to question.
Robertson v. Baldwin, supra, p. 281 (17 S. Ct. 326); Patterson v.
Colorado, supra, p. 462 (27 S. Ct. 556); Fox v. Washington, supra,
p. 277 (35 S. Ct. 383); Gilbert v. Minnesota, supra, p. 339 (41
S. Ct. 125); People v. Most, 171 N. Y. 423, 431, 64 N. E. 175, 58
L. R. A. 509; State v. Holm, 139 Minn. 267, 275, 166 N. W. 181,
L. R. A. 1918C, 304; State v. Hennessy, 114 Wash. 351, 359, 195
P. 211; State v. Boyd, 86 N. J. Law, 75, 79, 91 A. 586; State v.
McKee, 73 Conn. 18, 27, 46 A. 409, 49 L. R. A. 542, 84 Am. St. Rep.
124. Thus it was held by this Court in the Fox Case, that a State
may punish publications advocating and encouraging a breach of its
criminal laws; and, in the Gilbert Case, that a State may punish
utterances teaching or advocating that its citizens should not assist
the United States in prosecuting or carrying on war with its public
enemies.
And, for yet more imperative reasons,
a State may punish utterances endangering the foundations of organized
government and threatening its overthrow by unlawful means. These
imperil its own existence as a constitutional State. Freedom of
speech and press, said Story, supra, does not protect disturbances
to the public peace or the attempt to subvert the government. It
does not protect publications or teachings which tend to subvert
or imperil the government or to impede or hinder it in the performance
of its governmental duties. State v. [268 U.S. 652, 668]
Holm, supra, p. 275 (166 N. W. 181). It does not protect publications
prompting the overthrow of government by force; the punishment of
those who publish articles which tend to destroy organized society
being essential to the security of freedom and the stability of
the state. People v. Most, supra, pp. 431, 432 (64 N. E. 175). And
a State may penalize utterances which openly advocate the overthrow
of the representative and constitutional form of government of the
United States and the several States, by violence or other unlawful
means. People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also,
State v. Tachin, 92 N. J. Law, 269, 274, 106 A. 145, and People
v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom
does not deprive a State of the primary and essential right of self
preservation; which, so long as human governments endure, they cannot
be denied. Turner v. Williams,
194 U.S. 279, 294 , 24 S. Ct. 719. In Toledo Newspaper Co. v.
United States,
247 U.S. 402, 419 , 38 S. Ct. 560, 564 (62 L. Ed. 1186), it
was said:
'The safeguarding and fructification
of free and constitutional institutions is the very basis and
mainstay upon which the freedom of the press rests, and that
freedom, therefore, does not and cannot be held to include the
right virtually to destroy such institutions.'
[Gitlow
v. People of State of New York, 268 U.S. 652 (1925)]
"This case involves a cancer in our
body politic. It is a measure of the disease which afflicts us.
Army surveillance, like Army regimentation, is at war with the principles
of the First Amendment. Those who already walk submissively will
say there is no cause for alarm. But submissiveness is not our heritage.
The First Amendment was designed to allow rebellion to remain as
our heritage. The Constitution was designed to keep government off
the backs of the people. The Bill of Rights was added to keep the
precincts of belief and expression, of the press, of political and
social activities free from surveillance. The Bill of Rights was
designed to keep agents of government and official eavesdroppers
away from assemblies of people. The aim was to allow men to be free
and independent and to assert their rights against government. There
can be no influence more paralyzing of that objective than Army
surveillance. When an intelligence officer looks over every nonconformist's
shoulder in the library, or walks invisibly by his side in a picket
line, or infiltrates his club, the America once extolled as the
voice of liberty heard around the world no longer is [408 U.S. 1,
29] cast in the image which Jefferson and Madison designed,
but more in the Russian image, depicted in Appendix III to this
opinion."
[Laird v. Tatum,
408 U.S. 1 (1972)]
CATO'S LETTERS:
"Without freedom of thought, there
can be no such thing as wisdom; and no such thing as public liberty,
without freedom of speech; which is the right of every man, as far
as by it he does not hurt and control the right of another; and
this is the only check which it ought to suffer, the only bounds
which it ought to know.
"This sacred privilege is so essential
to free government that the security of property and the freedom
of speech always go together; and in those wretched countries were
a man cannot call his tongue his own, he can scarce call anything
else his own. Whoever would overthrow the liberty of the nation
must begin by subduing the freedom of speech, a thing terrible to
public traitors."
[Cato's Letters. No. 15, Feb. 4,
1720]
"If there is a bedrock principle
underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds
the idea itself offensive or disagreeable."
[Texas v. Johnson,
491 U.S. 397 (1989) / Justice William Brennan]
"Only a free and unrestrained press
can effectively expose deception in government. And paramount among
the responsibilities of a free press is the duty to prevent any
part of the government from deceiving the people and sending them
off to distant lands to die of foreign fevers and foreign shot and
shell."
[New York Times v United States,
403 U.S. 713 (1971) / Justice Hugo Black, concurring]
Article XIX of the Universal Declaration
of Human Rights
"Everyone has the right to freedom
of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive, and impart information
and ideas through any media regardless of frontiers."
[Article XIX of the Universal Declaration
of Human Rights]
Free Speech in an Open Culture.
(Page 367)
"Even a nation as committed to freedom
of speech as the United States will often be sorely tempted to let
paranoia triumph over liberty, treating speech from other nations
as contraband, like drugs or smuggled goods. But, in the end, the
towering hopes of the world for a new century of pluralistic tolerance
and peace must be wagered on the faith that the free flow of information
across international borders avoids more wars than it causes, averts
more terrorism than it feeds, and uncovers more violations of human
rights than it incites. The international marketplace of ideas is
not a myth; it is inevitable. The global electronic village is not
a dream, it is here. There is no better way to advance the progress
of science, social justice, and culture, no better way to conquer
hunger and disease, no better check on tyranny and exploitation,
no better nourishment for the art, music, and poetry that stir the
human spirit, than a world committed to open cultures and freedom
of speech."
[Free Speech in an Open Culture.
(Page 367)]
"If there is any fixed star in our
constitutional constellation, it is that no official, high or petty,
can prescribe, what shall be orthodox in politics, nationalism,
religion, or other matters of opinion...."
[Justice William Brennan. Board of Education v. Pico, 457 U.S. 853 (1982)]
"The freedom to speak one's mind is not only an aspect of individual
liberty- and thus a good unto itself - but also is essential to
the common quest for truth and the vitality of society as a whole."
[Chief Justice William Rehnquist, Hustler v. Falwell,
485 U.S. 46 (1988)]
Justice William O. Douglas
"The right to dissent is the only thing that makes life tolerable...
The affairs of government could not be conducted by democratic standards
without it."
[Justice William O. Douglas]
Police Department of the City of Chicago v. Moseley (1976)
"Above all else, the First Amendment means that government has
no power to restrict expression because of its message, its ideas,
its subject, or its content."
[United States Supreme Court, Police Department of the City of
Chicago v. Moseley (1976)]
Justice Potter Stewart
"Censorship reflects society's lack of confidence in itself.
It is the hallmark of an authoritarian regime..."
[Justice Potter Stewart]
Other First Amendment cases:
- Whitney v. People of State of California,
274 U.S. 357 (1927) excerpt from J. Brandeis concurring opinion
- Roth v. United States,
354 U.S. 476 (1957);
- Smith v. California,
361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1960)
- Winters v. New York,
333 U.S. 507, 509 -510, 517-518
- Thornhill v. Alabama,
310 U.S. 88, 97 -98
- Staub v. City of Baxley,
355 U. S. 313, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958)
- Joseph Burstyn, Inc., v. Wilson,
343 U.S. 495 ;
- Grosjean v. American Press Co.,
297 U.S. 233
- Gibson v. Florida Legislative Investigation Commission,
372 U.S. 539, 83 S. Ct. 889, 9 L. Ed. 929 (1963)
- NAACP Legal Defense and Education Fund, Inc. v. Committee on
Offenses Against Administration of Justice, 204 Va. 693, 133 S.
E. 2d 540 (1963),
- LAW REVIEWS: Berger Liberty and the Constitution 29 Ga. L R
585, Spring 1995
Louisiana ex. rel. Gremillion v. NAACP,
366 U.S. 293, 81 S. Ct. 1333, 6 L. Ed. 2d 301 (1961)
- California Bankers Association v. Shultz,
416 U. S. 21, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974)
- NAACP v. Alabama,
357 U.S. 449 (1958).
- Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.), aff'd per curiam,
393 U.S. 14 (1968)
- Louisiana v. N. A. A. C. P.,
366 U.S. 293 (1961)
- Bates v. City of Little Rock,
361 U. S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960),
- NAACP v. State of Alabama ex. rel. Patterson,
357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958)
- NAACP v. Alabama ex. rel. Flowers,
377 U.S. 288, 84 S. Ct. 1302, 12 L. Ed. 2d 325 (1964)
Watkins v. United States, 354 U.S. 178 (1957)
- DeGregory v. Attorney General of the State of New Hampshire,
383 U.S. 825, 86 S. Ct. 1148, 16 L. Ed. 2d 292 (1966)
- Shelton v. Tucker,
364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)
- Meachum v. Fano,
427 U. S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976)
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