What is free speech? The First Amendment to the U.S. Constitution—perhaps the most explicit legal protection of the right to free speech in the entire world—does not say. It simply states that “Congress shall make no law … abridging the freedom of speech, or of the press.” It does not, as the saying goes, define its terms. And just ten years after the ratification of the Constitution and the Bill of Rights, Congress passed “An act for the punishment of certain crimes against the United States,” more commonly known as the Sedition Act of 1798, criminalizing a broad array of speech acts, including almost any criticism of the federal government. This law was, like many bad laws in American history, an act of anticipatory war fever—the government at the time was preparing for a potential war with France.
The Sedition Act of 1798 was allowed to expire after the election of Thomas Jefferson, but over subsequent decades and centuries, the United States repeatedly criminalized speech and engaged in censorship, targeting radicals and abolitionists, communists and anarchists, civil rights activists and supposed pornographers. For the entire history of the United States, free speech has remained hotly contested and hazily defined, often subject to the pithy (and useless) rubric that Supreme Court Justice Potter Stewart espoused for identifying “hard-core pornography” in 1964: “I’ll know it when I see it.”
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