It goes without saying that the Framers were exceptionally creative visionaries of reason. Their capacity to apply reason to an imagined future civil society was incredibly measured, considering their reasoning was grounded in what they witnessed and suffered at the hands of a tyrant.
With no template in hand, the Framers fashioned the U.S. Constitution, as amended by the Bill of Rights, into a delicate blend of competing interests – balancing the interests of governmental powers with the interests of maintaining a free society. In the end, they succeeded. On September 25, 1789, just six short months following the establishment of our system of government through the Constitution, the Bill of Rights was approved by Congress.
The import of the Bill of Rights cannot be overstated – the document protects us citizens against the heavy hands of tyranny, injustice, brutality, corruption and government overreach. Each protection, so deliberately penned by the Framers, plainly gives due consideration to the God-given rights to live with dignity, pride, and purpose.
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits governments (federal, state, and local) from enacting laws “abridging the freedom of speech.” It is markedly clear the degree of significance to which the Framers identified freedom of speech as a fundamental right for the populous to enjoy, unfettered. Not only is the phrase “freedom of speech” specifically enumerated, but it resides within the very first amendment, ensuring familiarity over other later amendments.
If a regulation targets a particular message over a similarly-situated, but competing message, under normal conditions, Courts will strike down the law in favor of both viewpoints being digested by the public. A simple example would be a state law that only allows for signs to be publicly displayed if the signage supports candidates from only one political party. No reasonable court would permit such illicit censorship. Stated another way, the dangers of this type of governmental “suppression of disfavored speech” are far-reaching, odious and intolerable by any measure.
Notably, the Supreme Court has recognized certain types of content that categorically fall outside First Amendment free speech protections. This means governments may enact laws that restrict speech if certain characterizations, respecting the content of the “speech” being regulated, are present. These categorically unprotected types of speech include, “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.”
But it is up to the public to pay close attention to free speech issues percolating around the country. History tells us that the metes and bounds of freedom of speech are not set in stone.