CRS Issue Statement on Freedom of Speech

CRS Issue Statement on Freedom of Speech

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CRS Issue Statement on Freedom of Speech
Kathleen Ann Ruane, Coordinator
Legislative Attorney
January 20, 2010
Congressional Research Service
7-5700
www.crs.gov
IS40318
CRS Report for Congress
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repared for Members and Committees of Congress

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CRS Issue Statement on Freedom of Speech

any legislative goals for campaign finance reform, the communications industry,
indecency, and crimes, such as cyber-harassment, implicate the Free Speech Clause of
M the First Amendment. The constitutional implications of proposed laws must be taken
into account if the law is to survive judicial review. In 2010, the Supreme Court is set to decide at
least two important free speech cases. Depending upon the outcomes of those cases, Congress
may choose to respond with legislation that comports with the announced constitutional
standards.
Political Speech
Whenever the government seeks to restrict the ways in which political campaigns solicit, receive,
and spend money, the First Amendment may be implicated. As the 111th Congress considers
potential reforms to campaign finance laws, restrictions on campaign communications, or
restricting certain politically related speech, the application of the First Amendment in these areas
may need to be analyzed in order to ensure the effectiveness of the proposals. In Citizens United
v. FEC, the Supreme Court will decide whether a spending restriction on corporations in the
context of an election is constitutional under the First Amendment. If the Court finds the
spending restriction to be unconstitutional and strikes down the provision at issue, Congress may
attempt to craft a new expenditure restriction in line with the Court’s decision.
Mass Media and Communications
Many communications-related legislative proposals that have obtained significant Congressional
attention in the past have First Amendment implications. Legislative proposals affecting the
speech of broadcasters and journalists would likely raise First Amendment questions. The
Supreme Court, in United States v. Stevens, is considering whether a law making it illegal to
create, sell, or possess images of animal cruelty for commercial gain violates the right to free
speech. It is undisputed that the depictions at issue in the case are not indecent or obscene,
though they may be violent and unpleasant. Therefore, in order for the speech to be proscribable,
the Court would have to recognize a new category of speech that does not receive full
constitutional protection. If such a category is recognized, Congress would have wider latitude to
proscribe speech within the category defined by the Court.
Other Issues
Many other legislative issues may be limited in their scope by First Amendment considerations.
For example, laws that ban burning the American flag or other types of symbolic speech may be
unconstitutional under the First Amendment. Proposals intended to protect children from online
harassment and sexual predation would be affected by the First Amendment as well. Nearly any
time the government attempts to dictate what may or may not be said or expressed, the First
Amendment must be taken into account. This CLI will maintain reports on these issues as they
become important to Congress.

Congressional Research Service
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CRS Issue Statement on Freedom of Speech

Issue Team Members

Kathleen Ann Ruane, Coordinator
John R. Luckey
Legislative Attorney
Legislative Attorney
kruane@crs.loc.gov, 7-9135
jluckey@crs.loc.gov, 7-7897
Kenneth R. Thomas
Alison M. Smith
Legislative Attorney
Legislative Attorney
kthomas@crs.loc.gov, 7-5006
amsmith@crs.loc.gov, 7-6054
L. Paige Whitaker
Charles Doyle
Legislative Attorney
Senior Specialist in American Public Law
lwhitaker@crs.loc.gov, 7-5477
cdoyle@crs.loc.gov, 7-6968
Jack Maskell
Cassandra L. Foley
Legislative Attorney
Law Librarian
jmaskell@crs.loc.gov, 7-6972
cfoley@crs.loc.gov, 7-4179
Erika K. Lunder

Legislative Attorney
elunder@crs.loc.gov, 7-4538

Congressional Research Service
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