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Dalaney Shelton
English 113 Research Paper 8 pg draft
3/11/2015

Free Speech

Amendment I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
As United States citizens living in the US, free speech is a cornerstone of our
society that we take for granted on a daily basis. We forget that not many countries have
the same right to freely express themselves.
The US Constitution was written and signed in 1787. However, it did not go into
affect until it was ratified; this process was completed on June 21, 1788 when New
Hampshire became the ninth state to ratify. The Constitution is the fundamental structure
of our government. It puts power into the peoples hands, sets up the checks and
balances system, is the dividing power between state and federal government, gives the
definition of the governments power and its duties, separates the government into the
legislative, executive, and judicial branches, determines how we elect new
representatives, formulates the ratification and amendment processes of documents, and
last but not least it defines many of our right and freedoms. (Constitution FAQs)

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Involved with Freedom of Speech is freedom of the press, hate speech,
censorship, government-regulated speech, defamation, libel, and sedition.
There are many, many law cases that have to do with free speech.
However, even in America, some people are hesitant to speak up. This is because
of government censorship, which, in many cases, is very good and necessary. Sometimes
however, the government uses it to shield themselves from something potentially
embarrassing.
Alan Dershowitz, one of the most famous current lawyers in America, handled
many cases on free speech and the affects of government censorship. One specific case he
handled was the WikilLeaks in which he represented Julian Assange.
The WikiLeaks happened in February 2010 when Assanges company published
a diplomatic communications sent to them by Private Chelsea Manning. Tens of
thousands of classified documents were published following the first publication. They
also published secret pentagon communications, the Pentagon Papers, about the war in
Afghanistan and Iran. (worldcrunch.com) Assange is now considered a public enemy of
the United States.
Hillary Clinton said, because the incident began with a theft, just as if it had been
executed by smuggling papers from a briefcaseWikiLeaks does not challenge our
commitment to Internet freedom. (worldcrunch.com) This was how they hoped to
discredit Assange and WikiLeaks.
But Dershowitz argued that Assange and his team were simply given the
information, they neither asked for nor actively went after it; they did not steal anything.
The website WikiLeaks had been set up as a way for anyone to leak information, if it

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was deemed interesting and publishable Assange or one of his team members would
publish it online. Assange, or anyone who worked for him, never personally tracked
down leads or coerced people to give them information.
One reason this case blew up in the media as much as it did was because it would
set the precedent for how much the government could control the Internet in the 21st
century. Dershowitz believed it was like any other free speech case, and one of his law
passions is defending the constitution, specifically free speech. He joined Assanges legal
team to protect the First Amendment.
When asked about what the case was about, he said it is about freedom of speech
in the United States in the 21st century. Digital media has to be recognized as much as the
written media. (worldcrunch.com)
The US investigation of Assange is still not complete. He is currently living in
asylum in Ecuador to avoid getting indicted.
In Alan Dershowitzss book, Taking the Stand, he talks about how government
censorship can lead to self-censorship because of a fear of getting in trouble with the
government. He cites the WikiLeaks case as an example.
There have been times when Ive been researching, either for a class or personal
interests, hot topics; such as ISIS, Guantanamo Bay, basically any Middle Eastern
country, secret government operations, and other similar topics. Ive always had a little
nagging thought of oh am I going to get in trouble with the government? Are men in
black suits suddenly going to show up and seize my computer? Or at the very least, are
they going to start monitoring and watching all of my Internet history and keep track of
me more than Big Brother already does?

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Im sure that these are logically, completely unnecessary concerns. If I were to
ever be monitored they would quickly see that I do not command an adequate knowledge
of computers to pose any sort of threat.
However, I am sure that if I sometimes think these things then people with actual
pertinent information think them as well. That these kinds of thoughts are very relevant to
their lives, especially in countries other than the United States.
The psychology is similar to being punished by a parent. Usually, if a child is
punished once for something they either dont do it again or they get sneaky about it
because of their fear of getting caught. The same psychology applies to people fearing the
discipline of the government and laws, either they simply dont break the law or do
something they think might get them in trouble or they get more sneaky about it.
Censorship, as defined by the ACLU, is as follows:
Censorship, the suppression of words, images, or ideas that are offensive,
happens whenever some people succeed in imposing their personal political or
moral values on others; censorship can be carried out by the government as well
as private pressure groups. Once you allow the government to censor someone
lese, you cede to it the power to censor you, or something you like. Censorship is
like poison gas: a powerful weapon that can harm you when the wind shifts.
Censorship by the government is unconstitutional because freedom of speech is
protected in the First Amendment, as is guaranteed to all Americans. (ACLU)

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Government censorship doesnt solely apply to speaking about government
issues. Things such as books, movies, music, art, the Drug War, letters to prisoners, letters
or emails to active military personnel, science, and many more are all censored.
In 2004 the ACLU handled a case in which the government was censoring
science. political interferences in the operations of federal scientific activities,
including censorship of federal scientists speech and writing, the distortion oand
suppression of research results, and retaliation against those who protest these acts.
(ACLU) The ACLU argued that science itself is about the flow of free, unadulterated
knowledge. Ideas and knowledge must be truthfully exchanged without fear of
corruption. If any of it were tampered with on any level, it would skew the results. They
believed that the core integrity of science was at stake.
Another argument they presented was that constitutional and historical values
were also at stake. Our founding Fathers all very much wanted an educated voting pool.
Thomas Jefferson, Benjamin Franklin, and George Washington all spoke about spreading
education, increasing citizens knowledge, and the exchange of bias-free, uncorrupted
knowledge. Jefferson once described liberty as the great parent of sciences and in
Washingtons farewell address he implored the nation to promote then, as an object of
primary importance, institutions for the general diffusion of knowledge. In proportion as
the structure of a government gives force to public opinion, it is essential that public
opinion should be enlightened. (ACLU) The Supreme Court also deeply approves of and
recognizes these values:
The State may not, consistently with the spirit of the First Amendment, contract
the spectrum of available knowledge. The right of freedom of speech and press

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includes not only the right to utter or to print, but the right to distribute, the right
to receive, the right to read and freedom of inquiry, freedom of thought, and
freedom to teach. (ACLU)
In certain cases, limiting, or censoring, what is said is necessary for the safety of
individuals or the integrity of a trial. Every once in a while a judge will order a prior
restraint, which is an official government restriction of speech prior to publication.
(Government Censorship) In order to do this he, or she, must apply the clear and present
danger test. This test weighs whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech. (Government Censorship) The
judge also has to decide if a prior restraint is actually the best course of action, if it would
indeed effectively prevent any and all threats of danger; or if there is a less dramatic way
to go about alleviating the threat. The Supreme Court has said that prior restraints on
speech and publication are the most serious and the least tolerable infringement on First
Amendment rights, as such they are presumptively unconstitutional and carry a heavy
burden to sustain. (Government Censorship)
All this helps to shed some light on how serious the situation must be in order to
use prior restraint against certain information.
In 1971, a case was taken to the Supreme Court that tested the limits of prior
restraint and national security. New York Times Co. v. United States was about the
governments attempted prevention of the publication of the Pentagon Papers by The New
York Times and The Washington Post. This was also the same information that got
WikiLeaks and Julian Assange into so much trouble.

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Many justices on the case believed that the release of the information within the
Pentagon Papers would be detrimental to the States interests. However, even though the
effects would be quite adverse, The Court felt that they were not serious enough to justify
the use of prior restraint. Justice Potter Stewart commented prior restraint is permitted
only when publication will surely result in direct, immediate, and irreparable damage to
our Nation and its people. (First Amendment Center) It has been agreed upon that prior
restraint is only necessary in cases that will divulge the location and movements of
United States troops or other secret personal, when it endangers a witness or someone in
a similar situation, or other such circumstances.
In Near v. Minnesota the Supreme Court did make an exception to their stand of
prohibiting prior restraints. In an obiter dictum, a judges incidental remark or expression
of opinion not truly essential to the decision, the Court found that the prior restraint was
not completely an unbending rule:
When a nation is at war, many things that might be said in time of peace are such
a hindrance to its effort that their utterance will not be endured so long as men
fight and that no court could regard them as protected by any constitutional right.
No one would question by that government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of transports or the
number and location of troops. On similar grounds, the primary requirements of
decency may be enforced against obscene publications. The security of the
community life may be protected against incitements to acts of violence and the
overthrow by force of orderly government. (On the Limitations of the Freedom of
Expression)

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Works Cited
"First Amendment." First Amendment. N.p., n.d. Web. 02 Feb. 2015.
"Constitution FAQs." National Constitution Center Constitutioncenter.org. N.p.,
n.d. Web. 03 Feb. 2015.
Dershowitz, Alan M. Taking the Stand: My Life in the Law. New York: Crown,
2013. Print.
"Alan Dershowitz: Why I Am Defending Julian Assange." Worldcrunch.com.
N.p., n.d. Web. 06 Mar.
2015.
"Censorship." American Civil Liberties Union. N.p., n.d. Web. 01 Mar. 2015.
"Joint Statement on Censorship and Science: A Threat to Science, the
Constitution, and Democracy." American Civil Liberties Union. N.p., n.d. Web.
06 Mar. 2015.
"Government Censorship (Prior Restraints)." Government Censorship (Prior
Restraints). N.p., n.d. Web. 11 Mar. 2015.