Freedom of Expression

Cases and Issues

Courts are often the final arbiters of free expression rights in the United States, and judicial decisions extending or limiting these rights are one important area of inquiry. Examples include contemporary decisions by the Supreme Court, such as Citizens United v. Federal Election Commission in 2010 (expanding corporate rights to make expenditures that express their views on political issues) and Snyder v. Phelps in 2011 (involving the right of Westboro Baptist Church members to picket near military funerals and express messages many would find offensive). The enduring impact of historic decisions is also analyzed; for instance, the Schenck v. U.S. decision in 1919, which held that free expression would not include the right to falsely shout “Fire!” in a crowded theater and cause a panic.

Scholarship also goes beyond individual cases and analyzes genres of expression that can be controversial. Some of these issues have been controversial for centuries, such as obscenity, defamation (false messages that injure a person’s reputation), profanity, and fighting words. Speech that might induce another person to break the law is another such form of expression. Examples could include a book that explains techniques for identity theft or a video game in which the player steals cars or shoots people. Other issues have emerged from contemporary discourse, such as hate speech—insulting speech based on characteristics such as ethnicity, gender, and sexual orientation. Technological innovations also give rise to new issues including cyberbullying and Internet censorship.

Doctrines established by courts provide additional grounds for research. One example is journalists’ privilege or the rights of reporters to withhold the source of their information during government investigations or legal proceedings. This issue became more complex when private individuals were able to take cell phone videos of news events and share them with a mass audience, raising the question of who is entitled to the First Amendment rights afforded to journalists. Another representative judicial doctrine is symbolic expression, which pertains to First Amendment protection of nonverbal messages such as burning the American flag or the rights of event organizers to control which organizations are allowed to march in their St. Patrick’s Day parade.

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