Free speech and the law: the United States
The right to free speech is fundamental to American principles, and is enshrined in the First Amendment to the U.S. Constitution, which specifies that "Congress shall make no law… abridging the freedom of speech." While that sounds clear, a variety of legal cases in the U.S. Supreme Court have set precedents for occasions where speech should, in fact, be regulated to some extent. These include:
- Obscenity and child pornography - Miller vs. California (1973)
- True threats, speech inciting 'imminent lawless action' and 'fighting words' that would incite imminent harm or violence - Brandenburg v. Ohio (1969), Watts v. United States (1969), Terminiello v. Chicago (1949)
- Regulation of commercial speech - Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
- Invasion of privacy, slander/defamation, and the intentional infliction of emotional distress - Time, Inc. v. Hill (1967), New York Times Co. v. Sullivan (1964), Hustler Magazine v. Falwell (1988)
- Situations where the time, place, and manner of speech is incompatible with 'normal activity' (Restrictions of this type must be content-neutral, serve significant public interest, and leave open ample alternatives.) - Ward v. Rock Against Racism (1989)
- Information related to national defense or non-military information released with the intent to damage national security - Schenck v. United States (1919)
Free speech and the law: New Hampshire
New Hampshire acted to further protect free speech with an amendment to Article 22 of the New Hampshire Constitution, passed in 1968:
"Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved."
-NH Constitution, Part I, Article 22
Legal cases in New Hampshire since the passing of the Article 22 amendment have mainly upheld the exemptions outlined above on the national level.
In more recent years, there have been several significant cases related to the interpretation of lawful restrictions on free speech in New Hampshire, including:
- The case of a New Hampshire man whose request for a vanity plate reading "COPSLIE" was denied by the NH DMV, based on a law prohibiting license plates that "a reasonable person would find offensive to good taste". In 2014, the New Hampshire Supreme Court ruled that "reasonable people frequently come to different conclusions" and that the law "authorizes or even encourages arbitrary and discriminatory enforcement."
- The controversy over SB 319 (2014), which would have created 25-foot 'buffer zones' around facilities offering abortions. The US District Court for New Hampshire issued an order prohibiting enforcement of the law, citing the recent US Supreme Court decision in McCullen v. Coakley.
Active free speech controversies
The regulation of free speech continues to be a hot-button topic on several fronts, either where clear legal precedent has not yet been set, or where large bodies of the public are actively campaigning to change an existing precedent, both within New Hampshire and on the national level.
Hate speech is speech that deliberately "offends, threatens or insults groups based on race, color, religion, national origin, sexual orientation, disability or other traits." (American Bar Association). While it is generally agreed that hate speech should be actively discouraged, controversy centers over whether such speech should be protected under the First Amendment. Hate speech that falls under the exemptions listed above — such as "fighting words" or incitement to imminent criminal activity — would be barred under existing precedents. However, under current interpretations of the First Amendment, speakers do otherwise have the right to say things that are offensive, racist or discriminatory.
Those in favor of maintaining this standard argue that, though hate speech is distasteful, it is important to protect the freedom of expression even of those whose opinions are seen as ignorant and intolerant by the majority. Others counter that hate speech violates a citizen's right to freedom from discrimination, and that banning it would help to prevent hate crimes and promote values of equality and respect.
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In December 2017, the Federal Communications Commission, which regulates broadband provision, voted to allow Internet providers to discriminate the speed with which they deliver data from different content providers to customers. This eliminated the previous standard, where all content providers had to be delivered to customers with equal speed. That was known as 'net neutrality'.
There has been a great deal of controversy over ending net neutrality, and free speech has been called into play on both sides of the debate. Supports of net neutrality argue that allowing broadband companies to determine the speed at which different resources are delivered to customers inhibits free speech, as those content providers unable or unwilling to pay for faster traffic will essentially be silenced. However, at least one major broadband provider – Verizon – has protested net neutrality regulations on the grounds that they violate the free speech rights of the company's owners, who should have the right to exercise editorial control over content, much like newspaper publishers.
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HB 544 and critical race theory
In 2021 the New Hampshire Legislature debated HB 544, a bill that was intended to ban the teaching of critical race theory in schools and employee trainings. Critical race theory examines concepts such as systemic racism and implicit bias. Some opponents of HB 544, including the ACLU, argued that banning these topics in the classroom is a violation of the right to free speech. The Senate greatly revised HB 544 before including a version of it in the 2022-2023 state budget. It remains to be seen if there will be a lawsuit over the new law.
Free speech rights in New Hampshire largely echo the terms set on the national level by Congress and the U.S. Supreme Court. While the right to free speech is a vitally important one in a democratic society, there are times where both courts and lawmakers have deemed it necessary to restrict perfect freedom of expression. The specific circumstances of these restrictions and their extent continue to be hotly debated subjects.
"Free speech should not be restricted."
- Free speech is a vital part of a democratic society.
- It ensures that all opinions are heard and taken into account by those in authority.
- Free speech allows citizens to express any view, regardless of its popularity or degree of controversy, without fear of reprisal.
- Free speech helps to ensure an open, accountable government.
- Restrictions on free speech constitute a 'slippery slope' which could lead to the loss of important personal liberties of thought and religion.
"There are times when free speech should be restricted."
- It's necessary to balance the right to free speech with other rights such as the right to privacy.
- Certain types of speech, such as pornography or hate speech, have been linked to acts of violence such as rape and abuse.
- The government must maintain secrecy of some materials in order to protect the security of its law-abiding citizens.
- Minors are susceptible to and should be protected from materials or points of view that could potentially be damaging to them.
"What Does Free Speech Mean?" - United States Courts
"Free Speech in NH's Constitution" by Adam Rick, UNH Law Review Vol.7, Issue 3
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