SUPREME COURT AND FREEDOM OF SPEECH

Amendment was intended to cover only political speech, is inaccurate. Complications have arisen in areas such as obscenity where the Court has performed a proper role. However, the protection afforded to certain types of speech, especially libellous speech and hate speech, by the Supreme Court has been excessive because the Court in some cases has failed to give sufficient weight to the other societal interests involved.

Intended Coverage of the First Amendment

The statement that the First Amendment's protection of freedom of speech and the press was intended to protect "only political speech," is belied by the language of the First Amendment itself which reads in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press" U.S. Const., Amendment I (1791). As Zechariah Chafee, Jr. puts it, "the framers had no very clear idea as to what they meant by freedom of speech or of the press . . . but [they] used the phrase to embrace the whole realm of thought" William B. Lockhart, Yale Kamisar, Jesse H. Choper & Steven H. Shiffrin, Constitutional Law, (1991), p. 702-703). The opposing or strict constructionist view was expressed by Alexander Meiklejohn: "The guarantee giv

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may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Obscenity. As the Court concluded in its first major case in that area, Roth v. U.S., (354 U.S. 476 (1957)), obscene expression is not protected by the First Amendment. Anti-obscenity laws were on the books of most state legislatures on or before the time when the Bill of Rights was adopted. Nevertheless, the Court held in Roth that since "the protection given freedom of speech and press was fashioned to assure unfettered interchange of ideas for bringing about of political and social changes," ideas which have some redeeming social value should be protected even if they offend local standards of morality. The Court upheld the convictions in that case which were based on California and federal obscenity laws and introduced a new balancing test in which material which might otherwise be obscene because it appealed to the prurient interest might be protected if it had redeeming social value. The pendulum shifted quite far in the direction of extending First Amendment protection to sexually-oriented material so long as it had such content. For example, in reversing a conviction of a Georgia resident under a state st
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