“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.”
—U.S. Supreme Court Justice Benjamin N. Cardozo in Palko v. Connecticut
Freedom of speech, the press, association, assembly, and petition: This set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. It is the foundation of a vibrant democracy, and without it, other fundamental rights, like the right to vote, would wither away.
The fight for freedom of speech has been a bedrock of the ACLU’s mission since the organization was founded in 1920, driven by the need to protect the constitutional rights of conscientious objectors and anti-war protesters. The organization’s work quickly spread to combating censorship, securing the right to assembly, and promoting free speech in schools.
Almost a century later, these battles have taken on new forms, but they persist. The ACLU’s Speech, Privacy, and Technology Project continues to champion freedom of expression in its myriad forms — whether through protest, media, online speech, or the arts — in the face of new threats. For example, new avenues for censorship have arisen alongside the wealth of opportunities for speech afforded by the Internet. The threat of mass government surveillance chills the free expression of ordinary citizens, legislators routinely attempt to place new restrictions on online activity, and journalism is criminalized in the name of national security. The ACLU is always on guard to ensure that the First Amendment’s protections remain robust — in times of war or peace, for bloggers or the institutional press, online or off.
Over the years, the ACLU has frequently represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.
Some examples of our free speech work from recent years include:
- The ACLU filed amicus briefs on behalf of The Slants, an Asian-American band that had been denied a trademark because the Patent and Trademark Office had deemed its name “disparaging” to Asian-Americans.
- In 2016, the ACLU filed a lawsuit on behalf of environmental and racial justice activists in Uniontown, Alabama, who were sued for defamation after they organized against the town’s hazardous coal ash landfill.
- In 2014, the ACLU filed an amicus brief in Elonis v. United States, arguing that subjective intent to threaten is required for someone to be prosecuted for making threatening statements.
- In 2014, the ACLU of Michigan filed an amicus brief arguing that the police violated the First Amendment by ejecting an anti-Muslim group called Bible Believers from a street festival based on others’ violent reactions to their speech.
- In 2012, the ACLU of Georgia filed a lawsuit against the state of Georgia for denying the Ku Klux Klan’s application to participate in an “adopt a highway” program.
- In 2010, the ACLU filed an amicus brief at the Supreme Court arguing that the First Amendment protects the Westboro Baptist Church’s anti-LGBT protests at military funerals.
What You Need To Know
- 1920sSince the 1920s, the ACLU has been involved in virtually all of the landmark speech cases to reach the U.S. Supreme Court.
- 1933A nationwide ban on "Ulysses," a novel by James Joyce, was lifted in 1933 following an ACLU challenge.
- 1997In a landmark 1997 decision, the U.S. Supreme Court agreed with the ACLU’s argument that the Internet itself is a free-speech zone.
The digital revolution has produced the most diverse, participatory, and amplified communications medium humans have ever had: the Internet. The ACLU believes in an uncensored Internet, a vast free-speech zone deserving at least as much First Amendment protection as that afforded to traditional media such as books, newspapers, and magazines.
In America, students do not lose their constitutional rights “at the schoolhouse gate.” The protection of students’ rights to free speech and privacy—in and out of school—is essential for ensuring that schools provide both quality education and training in our democratic system and values. Unfortunately, schools continue to demonstrate a disturbing willingness to abridge students’ rights.
While the First Amendment applies only to state action, the values that animate our right to free speech and free association apply to all of us, regardless of where we work. The marketplace of ideas works only if we are all free to speak vigorously and without fear about the issues of the day. This often happens in the workplace, so employee speech and privacy must be protected.
Laws protecting intellectual property—patents, copyrights, and trademarks—can both advance free speech and pose significant threats to civil liberties. The ability to keep books you write or pictures you take from being copied and sold without your permission, for instance, creates a financial incentive to write those books or take those pictures, fostering creativity and encouraging speech. By the same token, overly aggressive enforcement of copyright laws—the right to copy material—literally blocks people from speaking freely.
The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment. Unfortunately, law enforcement officials sometimes violate this right through means intended to thwart free public expression.
The freedom of the press, protected by the First Amendment, is critical to a democracy in which the government is accountable to the people. A free media functions as a watchdog that can investigate and report on government wrongdoing. It is also a vibrant marketplace of ideas, a vehicle for ordinary citizens to express themselves and gain exposure to a wide range of information and opinions.
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes transportation facilities, the outside of federal buildings, and police and other government officials carrying out their duties.
The U.S. Supreme Court has interpreted the First Amendment’s protection of speech to extend well beyond speeches and books to virtually anything that the human creative impulse can produce. The First Amendment embodies the belief that in a free and democratic society, individual adults must be free to decide for themselves what to read, write, paint, draw, compose, see, and hear.
The ACLU believes that the system of electing candidates to federal office is badly in need of repair. We will continue to advocate for reform of the current system, including in support of our longstanding commitment to public financing of campaigns. In doing so, we will stress fidelity to the principles protected by the First Amendment with the goal of expanding, not limiting, political speech.
- CaseFebruary 14, 2019
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