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The Constitution guarantees many types of civil liberties, including freedom of speech and the press, freedom of religion, and the rights of the accused. Over time, Americans have expanded their civil liberties to include the right to privacy.

Freedom of Speech and the Press

The First Amendment grants citizens freedom of speech, press, petition, and assembly, all essential for citizens to communicate freely in a democracy. Citizens must have the right to criticize the government for democracy to function properly. The courts have granted Americans wide-ranging freedoms of speech and expression.

Unprotected Speech

Not all speech is protected, however. In some cases, the government has the legal right to regulate what Americans say and print. Free speech must first pass a number of tests:

  • Clear-and-present-danger test: Speech that has the potential to cause harm or that constitutes a clear-and-present danger to the government is not protected.
  • Bad-tendency rule: Speech that might lead to some sort of “evil,” such as the violent overthrow of the government, is not protected.
  • Obscenity test: Speech that is considered obscene is not protected, even though Americans have different opinions on what material might be considered obscene.
  • Slander test: Speech that states something about a person or group that is known to be false is not protected because such speech (known as slander) can damage people’s otherwise good reputations.
  • Libel test:Libel, or printed material that slanders others, is also not protected; one important exception relates to public figures: People are free to print anything they want about public figures so long as they do not demonstrate actual malice (a reckless disregard for the truth with the aim of hurting the person).

Symbolic Speech

Any action that demonstrates a particular political viewpoint is known as symbolic speech. Generally, the courts have protected symbolic speech, such as the burning of draft cards or of the American flag, under the First Amendment.

Restrictions

In some trials, judges issue gag orders, which restrict what journalists can report about the trial. Prior restraint is a governmental act that stops the publication of materials thought to be damaging or slanderous; in recent years, the government has had a difficult time exercising prior restraint.

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