Freedom of Speech

The First Amendment and freedom of speech are important to the nonprofit sector because they allow groups to organize, operate and speak freely as well as represent the needs of minority or disenfranchised populations which may not be met by the business or government sectors.


Definition

Interpretations of freedom of speech have varied throughout the course of history. Yet, the term is seen as a basic right in the United States because it is guaranteed in the First Amendment to the U. S. Constitution. The amendment states "Congress shall make no law… abridging the freedom of speech or of the press" (National Archives and Records Administration 2001). This means that U. S. citizens may write and speak without governmental restraint and that they have the right to seek out the writings and thoughts of anyone they choose to hear or read. In other words, the ideas expressed by Marx, Gandhi, the Koran, and Socrates all have the right to be read in the United States because "we, the citizen-voters, have authority, have legal power, to decide what we will read," and "what we will think about" (Meiklejohn 1965). Moreover, citizens can do so without U.S. government interference.


Historic Roots

Notably, the roots of freedom of speech are closely entangled with its suppression throughout history. During the Middle Ages, nation building and loyalty were political goals. As a result, dissent was outlawed (Stevens 1982). The law of the land paralleled a literal interpretation of the Bible, making free speech and thought unacceptable. The Middle Ages promoted the belief that heretics and people possessing unique ideas were not "human being and certainly not entitled to any rights" (ibid.).

During the seventeenth century one of the most well-known examples of the suffocation of expressive freedom occurred. The Church, in 1616, urged Galileo to stop promoting the idea that the sun was at the center of the universe. Many clerics were afraid of the unknown and by admitting "the possibility of a fundamental error" they feared instigating "other challenges of Church infallibility" (ibid.). As a result, a free thinker became a martyr to society.

It was not until 18th century Colonial America that the freedom of speech was recognized as a shield against a despotic government. A colonial newspaper publisher, John Peter Zenger, used his journalistic power in 1734 to oppose the policies of New York Governor William Cosby (CNN Interactive 2001). Until that point in history, such dissent would have normally instigated harsh action toward Zenger. But in 1735, Zenger was acquitted on the grounds that "truth is a defense against libel" (ibid.). This viewpoint seemingly moved to the forefront of many colonial intellectual minds, for the freedom of speech was later included in the American Constitution.

The inclusion of the freedom of speech in the Bill of Rights, however, did not reflect a consensus opinion on the matter. The Sedition Act of 1789 certainly played a role in curbing the unhindered expression of American citizens. This act stated that "if any person shall write, print, utter" opinions that "defame the said government… [they] shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years" (Boston College 2001). In 1800, however, President Thomas Jefferson "pardoned those convicted under" the act (CNN Interactive 2001).

Limitations and interpretations of the freedom of speech have continued to evolve throughout the 20th century. The American Mercury journalist, H.L. Mencken, was imprisoned in 1926 following the argument by Boston censorship groups that his journalism was full of "scathing criticisms of American culture" and "was obscene" (ibid.). Furthermore, the Smith Act of 1940 declared that it was a crime to "advocate, abet, advise, or teach the duty… of overthrowing or destroying any government of the United States by force of violence" (ibid.).

Importance

The First Amendment and the freedom of speech are important to the nonprofit or third sector because they allow "groups to organize, operate, and speak freely, all within wide limits" (Clotfelter and Ehrlich 1999). In other words, the rights of nonprofit organizations protected by the freedom of speech provide a microphone through which they can speak on behalf of various issues and populations. Furthermore, the freedom of speech creates the possibility Americans will utilize private nonprofit organizations to fill "the void left by… restricted government" (Hammack 2000).

There are instances, however, in which boundaries are placed on the freedom of speech rights of nonprofits. In 1991, the Supreme Court ruled that Congress held the power to insist that a nonprofit organization receiving federal funds must implement programs in exact accordance with the guidelines of the government funding agency. This was the outcome of the Rust v. Sullivan Case that also emphasized nonprofits, in these circumstances, are to keep their "First Amendment right to free speech and petition" separate and distinct "from the programs supported by federal funds" (ibid.).

Ties to the Philanthropic Sector

Two examples of events that illustrate the connection between freedom of speech rights and the philanthropic sector follow:

1) The debate surrounding Project of Government Oversights (POGO), a nonprofit watchdog organization dedicated to "exposing waste, fraud and corruption" in areas of government. As mentioned earlier, the First Amendment is important to nonprofits because it empowers Americans to fill some of the void left by the restricted government. POGO was created to fill this void and, also, to help the government function more effectively by "exposing governmental abuses and corruption" (American Civil Liberties Union 2001).

However, the Resources Committee of the U. S. House of Representatives recently decided to question and challenge POGO's workings. As a result, the committee subpoenaed POGO's office and staff home telephone records. The ACLU argues that the individuals who lend their voice to POGO's cause do so with the expectation of anonymity. Furthermore, the ACLU argues that revealing the identity of those individuals "endangers the freedom of speech and association guaranteed" them under the First Amendment (ibid.).

2) The second example involves charities lobbying "with regard to the nomination of John Ashcroft as attorney general" (INDEPENDENT SECTOR 2001). In response to this debate, INDEPENDENT SECTOR, a nonprofit and nonpartisan organization, represented hundreds of American nonprofits in their letter written urging the IRS to cease its scrutiny of many of the organizations that took part in this lobbying. Section 4911 of the Internal Revenue Code allows nonprofits to "expend significant funds" on this type of lobbying. There is a public misconception that "501(c)(3) public charities are prohibited by law from lobbying" (ibid.), since, if they elect to do so, nonprofit organizations are protected by the aforementioned code.

Although Section 4911 allows nonprofits to lobby, there are limitations. If lobbying, a nonprofit organization is usually only allowed to expend funds insofar as the amount does not exceed a certain percentage of their income or assets. In addition, 501(c)(3) organizations are only allowed to lobby as long as the lobbying reflects policy or legal issues, and does not tread into support of a political agenda or campaign.

Yet, INDEPENDENT SECTOR argues that the "community has a responsibility to advance ideas and points of view, including controversial ones, as a key component of the Constitutional guarantees of freedom of speech and of assembly" (INDEPENDENT SECTOR 2001). This viewpoint includes the variety of perspectives philanthropic organizations bring to policy debates concerning the nomination of John Ashcroft as Attorney General.

Key Related Ideas

  • Freedom of religion

  • Freedom of the press
  • Political freedom
  • Constitutional powers of the people

Important People Related to the Topic

Several people instrumental in the evolution of freedom of speech have been discussed, including Galileo , John Peter Zenger , President Thomas Jefferson and H.L. Mencken .

However, several of America's founding fathers, e.g, Benjamin Franklin , Alexander Hamilton and Thomas Jefferson , all contributed substantially to the view of freedom of speech we know today. Franklin's 1731 Apology For Printers, Jefferson's repeal of the Sedition Act, and Hamilton's successful defense of the aforementioned John Peter Zenger were all acts of acknowledgment that freedom of speech is a necessary tool in a democratic system.

Other notable figures are: Susan B. Anthony , Zechariah Chafee Jr. , and Alexander Meiklejohn . At a time when a woman's voice did not carry far, Susan B. Anthony was determined to speak publicly and freely. Chafee was a strong twentieth-century proponent of free speech, and likened the First Amendment "to a barricade behind which journalists, authors, and speakers had a chance to pursue and present the truth" (Stevens 1982). Lastly, Meiklejohn is another influential twentieth-century figure who has written extensively on the topic of free speech. He argued that the First Amendment should have narrow boundaries in less deserving areas, in other words, that "commercial expression is less deserving of constitutional protection than is political speech" (Tedford 1993).

Related Nonprofit Organizations

American Civil Liberties Union: Founded in 1920 as a nonprofit and nonpartisan organization, the ACLU is designed to defend American citizens' civil liberties. Basically, it is the ACLU's contention that despite an individual's race, sexual orientation, religious beliefs, or disabilities, every person in the United States should possess the same basic rights. http://www.aclu.org/.

Amnesty International: A worldwide organization that campaigns for human rights for all people. http://www.amnesty.org/.

Feminists for Free Expression: "Feminists working to preserve the individual's right and responsibility to read, listen, view and produce materials of her choice, without the intervention of the state" (http://www.ffeusa.org/).

Free Speech Coalition: A nonpartisan group that seeks "to protect the First Amendment rights of nonprofits and reduce or eliminate the excessive regulatory burdens they face" http://www.freespeechcoalition.org/.

National Association for the Advancement of Colored People: An organization created to abolish segregation and discrimination and to create equal opportunities for quality housing, employment, education, voting and constitutional rights. http://www.naacp.org.

National Coalition Against Censorship: A group of diverse nonprofits united to promote "freedom of thought, inquiry, and expression" (http://www.ncac.org/).

Bibliography and Internet Resources

American Civil Liberties Union. "Letter on Subpoena of Project on Government Oversight Phone Records" [online]. Available: http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=10035&c=42. (22 October 2001).

Boston College. "The Sedition Act of 1798" [online]. Available: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/seditionact.html. (22 October 2001).

Clotfelter, Charles T. and Thomas Ehrlich. Philanthropy and the Nonprofit Sector in a Changing America. Bloomington, Indiana: Indiana University Press, 1999. ISBN: 0253335213.

CNN Interactive. "Speaking Freely: A Brief History of the Right to Free Speech in America" [online]. Available: http://www.cnn.com/US/9703/cda.scotus/case.history/free.speech/. (22 October 2001).

Hammack, David C. Making the Nonprofit Sector in the United States. Bloomington, Indiana: Indiana University Press, 2000. ISBN: 0253214106.

INDEPENDENT SECTOR. "Independent Sector Urges IRS Impartiality in Responding to Audit Requests" [online]. Available: http://www.independentsector.org/programs/gr/IRSletter.html. (1 November 2001).

Meiklejohn, Alexander. Political Freedom: the Constitutional Powers of the People. New York: Greenwood Publishing Group, 1965. ISBN: 0313209073.

National Archives and Records Administration. "Bill of Rights Page: The First 10 Amendments to the Constitution as Ratified by the States" [online]. Available: http://www.archives.gov/national_archives_experience/
charters/bill_of_rights_transcript.html
. (22 October 2001).

Project of Government Oversights [online]. Available: http://www.pogo.org. (3 May 2002).

Stevens, John D. Shaping the First Amendment. Beverly Hills: Sage Publications, 1982. ISBN: 0803918763.

Tedford, Thomas L. Freedom of Speech in the United States. 2nd ed. New York: McGraw-Hill College Division, 1993. ISBN: 0070633916.

This paper was developed by a student taking a Philanthropic Studies course taught at the Center on Philanthropy at Indiana University. It is offered by Learning To Give and the Center on Philanthropy at Indiana University.