We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
--President John F. Kennedy
It is probably no accident that freedom of speech is one of the first freedoms mentioned in the First Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press, or of the people peaceably to assemble, and to petition the Government for a redress of grievances." The framers of the U.S. Constitution believed that the freedom of inquiry and liberty of expression were the hallmarks of a democratic society.
But historically, at times of national stress -real or imagined- First Amendment rights come under enormous pressure. Those with unpopular political ideas have always borne the brunt of government repression. During the "Red Scare" of the early 1920s, thousands were deported for their political views. It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.
The First Amendment exists precisely to protect the most offensive and controversial speech from government suppression. The best way to counter obnoxious speech is with more speech. This is why the ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn't need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure.
Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.
WHAT DOES "PROTECTED SPEECH" INCLUDE?
First Amendment protection is not limited to "pure speech" -- books, newspapers, leaflets, and rallies. It also protects "symbolic speech" -- nonverbal expression whose purpose is to communicate ideas. In 1989 (Texas v. Johnson) and again in 1990 (U.S. v. Eichman), the Court struck down government bans on "flag desecration". Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.
Government can limit some protected speech by imposing "time, place and manner" restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.
The ACLU of South Dakota advocated against two bills that would have forbidden anonymous blog postings and other anonymous speech on the internet during the 2010 Legislative Session. HB 1277 and HB 1278 mandated that websites in South Dakota that allow for unnamed posting of comments, opinions and other speech items must track those who are posting on their web pages and keep records of IP addresses and other potential identifying and private information.“These bills sought to address issues of defamation on internet websites but do so in a way that was so excessively broad that it would suppress South Dakotans’ rights to freedom of expression and infringe on their right to privacy,” stated Robert Doody, Director of the ACLU of SD. Both bills were defeated in committee.