Law Day 2019: ‘Free Speech, Free Press, Free Society’
Freedom of speech and freedom of the press are foundational to a free society, but these rights are rarely clear, simple and unconditional. At the intersection of any two or more freedoms or rights, there is often a seeming conflict of important social values requiring careful balancing.
The First Amendment of the United States Constitution grants us the right to freely express individual opinions and beliefs, and the liberty to question and criticize the government. Yet, government has found that the freedom of expression depends on what we say and where we say it.
For example, U.S. Supreme Court Associate Justice Oliver Wendell Holmes is often quoted for his explanation, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” (Schenck v. United States, 1919). In addition, the judicial and legislative branches of our government have found it prudent to restrict speech that is likely to incite or produce imminent lawless action.
The First Amendment also establishes freedom of the press, which further protects the rights of citizens to openly express their beliefs. Moreover, this crucial check on government power gives us a way to monitor, understand and question the actions of government. However, even this freedom has to be balanced with other important individual and societal rights. One clear example of this is in the courts, where the trial judge is responsible for protecting the defendant’s constitutionally guaranteed rights to due process and a fair trial, along with society’s right to justice through properly conducted judicial proceedings. To ensure these rights, the news media covering hearings are subject to certain rules of the court.
Additionally, instances of libel have made it necessary to establish legal boundaries on what the media can produce. Libel is a form of defamation in which a falsehood harmful to a person’s reputation is disseminated through print or broadcast communications. That person can sue the offending entity to try to prove the assertions were false.
The issues that arise with the exercise of free speech and a free press can be complex. They make their way into today’s headlines and serve as pointed examples of how difficult it can be to balance all of the freedoms we enjoy. This is part of the reason the American Bar Association chose to designate “Free Speech, Free Press, Free Society” as the theme of Law Day 2019.
After 228 years, the words and principles of the First Amendment have not changed, but lawmakers, judges and citizens continue to struggle with balancing freedom of speech and the press with what is required to sustain a society that respects the essential worth of all individuals. It is healthy and necessary for us, as a free people, to carry on this important work.
Regardless of the new challenges and circumstances we may face, the rule of law serves as a source of objective guidance that helps us to maintain fairness in our system of government. This is one of the many reasons we celebrate Law Day.
* Joseph E. Cardoza is chief judge of Hawaii’s 2nd Judicial Circuit.