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JULY 1994

Article 19 - Freedom of Opinion and Expression

The First Amendment to the U.S. Constitution 
provides that "Congress shall make no law abridging 
the freedom of speech."  Although the First 
Amendment refers specifically to Congress, the U.S. 
Supreme Court has held that freedom of speech is 
also protected from state infringement, and 
similarly from interference by executive branch 
officials.  As with the other components of the 
Constitution's Bill of Rights, freedom of speech is 
protected against government interference, and also 
actions by private individuals so closely associated 
with government officials that they may be described 
as state action. 

Freedom of Opinion.  While the literal language of 
the First Amendment is confined to the freedom of 
speech, that right -- together with the due process 
guarantees of the Fifth and Fourteenth Amendments -- 
has long been held to extend the right to hold 
opinions described in Article 19, paragraph 1 of the 
Covenant.  "If there is any fixed star in our 
constitutional horizon, it is that no official, high 
or petty, can proscribe what shall be orthodox in 
politics, nationalism, religion, or other matters of 
opinion."  West Virginia State Bd. of Education v. 
Barnette, 319 U.S. 624 (1943).  

In the few cases addressing attempts to invade 
freedom of opinion among the general citizenry, the 
courts have zealously protected the rights of 
individuals to dissent.  In Barnette, for example, 
the U.S. Supreme Court prohibited the states from 
requiring school children to pledge allegiance to 
America at the start of the school day.  The Court 
has also proscribed punishing individuals for 
obscuring a state motto imprinted on their license 
plates, reasoning that "the right of freedom of 
thought protected by the First Amendment against 
state action includes both the right to refrain from 
speaking at all," and that an individual may not be 
forced "to be an instrument for fostering public 
adherence to an ideological point of view he finds 
unacceptable."  Wooley v. Maynard, 430 U.S. 705 
(1977).  While these cases have proceeded to 
evaluate whether the state has a compelling interest 
in its regulation, that test can be demanding, and 
the state interest may not in any event serve an 
ideological function.

The only significant area in which the freedom of 
opinion has arguably been limited concerns the 
imposition of restrictions on public employment.  In 
this context, which chiefly implicates the right of 
freedom of association, public employees or 
candidates for public employment may 
constitutionally be required to express adherence to 
certain propositions fundamental to the U.S. system 
of government -- indeed, various provisions of the 
Constitution themselves require that federal 
officers take oaths to uphold the Constitution.  
Similar oaths imposed by statute have been upheld, 
at least to the extent that they require affirming 
adherence to the federal or state constitutions, or 
require a promise to oppose the violent, forceful, 
or illegal overthrow of the government.  Cole v. 
Richardson, 405 U.S. 676 (1972).  At present, 
federal employees may not advocate the overthrow of 
the constitutional form of government, or be a 
member of an organization they know to advocate the 
same.  5 U.S.C.   7311.  It is elsewhere made clear, 
however, that an ordinary citizen's membership in 
the Communist party is not enough, absent other 
acts, to violate the criminal law.  50 U.S.C.   783.

Freedom of Expression.  The freedom of speech 
protected by the First Amendment  has been given a 
broad reading in its application by the courts.  
Perhaps its most obvious purpose is to prevent the 
government from restricting expression "because of 
its message, its ideas, its subject matter, or its 
content."  Police Dep't of Chicago v. Mosley, 408 
U.S. 92 (1972).  "Regulations which permit the 
Government to discriminate on the basis of the 
content of the message cannot be tolerated."  Regan 
v. Time, Inc., 468 U.S. 641 (1984).  The First 
Amendment also limits content-neutral or incidental 
infringements on speech and speech-related 
activities, subjecting them to an assessment of 
whether the regulation furthers a substantial 
government interest not related to the suppression 
of speech, and whether the regulation is narrowly 
tailored to accomplish that interest.  O'Brien v. 
United States, 393 U.S. 900 (1968).

The First Amendment has been applied to a broad 
range of activities.  Symbolic speech, moreover, is 
also protected, as evidenced by recent cases 
striking down state and federal legislation against 
flag-burning.  Texas v. Johnson, 491 U.S. 397 (1989) 
(striking a state statute designed to protect the 
flag from desecration). United States v. Eichman, 
496 U.S. 310 (1990) (striking a federal statute 
enacted in response to Johnson attempting to protect 
the flag's physical integrity).  Other cases have 
emphasized that money is a form of speech, and that 
laws limiting campaign expenditures, by reducing the 
quantity of political expression, may 
unconstitutionally impact the quality and diversity 
of speech.  Buckley v. Valeo, 424 U.S. 1 (1976). 

Freedom of speech also encompasses certain rights to 
seek and receive information.  The most important 
means by which these rights are promoted is by the 
First Amendment's special concern for freedom of the 
press, which is protected from prior restraint (that 
is, censorship in advance of publication) in the 
absence of proof of direct, immediate, and 
irreparable and substantial damage to the public 
interest.  New York Times, Inc. v. United States, 
403 U.S. 713 (1971).     The press, and the public 
as a whole, have been held to have the right to 
gather information concerning matters of public 
significance.  For example, the public generally has 
a right of access to observe criminal trials, since 
such access is viewed as instrumental to the 
effectuation of the rights to speak and publish 
concerning the events at trial.  Richmond Newspapers 
v. Virginia, 448 U.S. 555 (1980).  This 
constitutional right has been supplemented by a 
number of laws promoting access to government, such 
as the Freedom of Information Act, 5 U.S.C.   552, 
the Government in the Sunshine Act, 5 U.S.C.   552b, 
and the Federal Advisory Committee Act, 5 U.S.C. 
App. 2.

The question of access to information invariably 
entails consideration of how to ensure access to 
points of view or messages that may be inadequately 
presented by the popular media.  Both the political 
branches and the courts have been careful to 
restrict governmental regulation of the media -- 
even in the interest of public access -- because of 
the restrictions it may impose on the other First 
Amendment ideals.  Thus, while the U.S. Supreme 
Court has suggested that the First Amendment 
encompasses "the right of the public to receive 
suitable access to social, political, esthetic, 
moral, and other ideas and experiences," and upheld 
government requirements of fairness and diversity in 
broadcasting, Red Lion Broadcasting v. FCC, 395 U.S. 
367 (1969), it has stopped short of suggesting that 
there is a constitutional right of access to the 
broadcast media, and has never extended a guaranteed 
right of access or fairness doctrine to the print 

The courts have also held, in the context of 
government or government- assisted programs, that 
the government may limit the extent to which such 
programs provide access to information for the 
beneficiaries.  Thus, in Rust v. Sullivan, 111 S. 
Ct. 1759 (1991), the U.S. Supreme Court upheld 
government regulations proscribing abortion 
counseling in programs receiving federal funding, 
but noted that the recipient of those funds could 
still provide  counseling and related services 
through separate and independent programs.  The 
Court noted that its holding merely allowed the 
government to refrain from funding speech activity 
that it did not support, and did not suggest that 
the government could condition or restrict speech in 
areas that have been traditionally open to the 
public for free expression, such as public parks or 

Limitations on the Freedom of Expression.  
Constitutionally acceptable limits to the freedom of 
expression fall into at least two broad types.  
First, and perhaps the most important type of 
regulation, is that which does not regulate the 
content of speech -- a type of restriction that is 
rarely upheld -- but only incidentally burdens 
expression to promote nonspeech interests.  Thus, 
for example, a law regulating the distribution of 
handbills may be intended to reduce litter, rather 
than suppress expression.  Such regulations are 
permitted if they are content-neutral and promote a 
substantial governmental interest by the least 
intrusive means.  Similarly, laws may regulate the 
time, place, or manner of speech if they are not 
attempts to censor content or unduly burdensome to 

A second category of permissible limitations 
describes types of speech that are afforded less 
protection under the First Amendment.  One such 
type, speech posing a "clear and present danger" to 
public order, may be punished, but only if the 
government can establish that such speech was 
intended to incite or produce imminent lawless 
action and is likely to achieve that end.  
Brandenburg v. Ohio, 395 U.S. 444 (1969).  Another 
type of speech, "fighting words," may be proscribed 
if the prohibition is content-neutral and the words 
would "by their very utterance inflict injury or 
tend to incite an immediate breach of the peace."  
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).  A 
third type of speech, obscenity, is entirely 
excluded from First Amendment protection. But 
obscenity, which is defined as patently offensive 
representations of sexual conduct without redeeming 
value, must be regulated in a manner consistent with 
due process.  Miller v. California, 413 U.S. 15 
(1973).  A fourth type of speech, commercial speech, 
is entitled to somewhat lesser protection than 
noncommercial speech, and may for example be 
regulated to avoid misleading or coercing consumers.  
City of Cincinnati v. Discovery Network, Inc., 113 
S. Ct. 1505 (1993).

Although speech causing injury to the rights and 
reputations of others is also subject to some 
restrictions, in that the person who is injured may 
bring a civil action for libel or slander, the First 
Amendment values at stake have also been recognized 
in this context.  An especially significant case, 
New York Times v. Sullivan, 376 U.S. 254 (1964), and 
its progeny, have declared that public officials and 
figures may recover for defamatory statements -- at 
least those relating to public controversies -- only 
if it is proven that the defamatory statement was 
made with knowledge of or reckless disregard for its 
falsity.  The U.S. Supreme Court has since indicated 
that the First Amendment also limits defamation 
actions alleging injury to private persons, and 
requires at a minimum that the false statement at 
issue be reasonably interpretable as a statement of 
actual fact about the individual and that the 
plaintiff establish fault on the part of the 
defendant.  Hustler Magazine v. Falwell, 485 U.S. 46 

Electronic Media.  The Federal Communications Act of 
1934 (the "FCA") established the Federal 
Communications Commission (FCC) for the purpose of 
regulating interstate and foreign communications by 
wire and radio.  Essentially the FCC is responsible 
for an equitable and efficient distribution among 
various users of the available radio frequency 
spectrum for nongovernment communications.  The 
constitutional underpinning for the regulation of 
electronic media is based on the scarcity of 
available spectrum and the need for an orderly 
system of interstate communication.

Private sector users of this spectrum, e.g., radio 
and television stations and interstate telephone 
companies, are licensed by the FCC.  Applicants for 
such licenses must demonstrate certain legal, 
technical and other qualifications.  The FCA 
generally restricts the granting of such licenses to 
U.S. citizens or entities controlled by U.S. 
citizens.  Additionally, there are ownership 
restrictions as to the overall number of licenses 
that may be held by one person or corporation and in 
some instances where such licenses may be operated.  
Potential licensees much also show that the 
frequencies applied for will be used in a 
technically compatible manner with those already in 

A fundamental concept of the regulation of 
electronic media in the U.S. is that use of the 
radio spectrum is not owned per se by licensees.  
Licenses are issued for a set period of time after 
which licensees must seek renewal of their 
authorizations together with a demonstration that 
the license has been used in the public interest.  
Licenses may and have been revoked in instances 
where it has been shown that the licensee violated 
provisions of the FCA or regulations promulgated 
pursuant to the FCA.

Mass media outlets such as radio and television 
stations are free to determine the nature and 
content of programming aired.  The federal 
government may not censor the programming of any 
such outlet with certain extremely limited 
exceptions, e.g., the broadcasting of obscene 
programming is specifically prohibited by the FCA.  
Additionally, the Act does require that licensees 
grant equal time to candidates for federal elective 
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