Freedom of speech is the right of an individual to express information, ideas, and opinions without content based government restrictions and subject to only reasonable limitations. The First Amendment of the United States Constitution offers protection for the right to free speech. The right to free speech is considered to be the most important right as it helps in the protection of all the other rights. However, this right is the most contested as people disagree about the definition of free speech and about the boundaries of where it starts and ends. The fundamental tenet of free speech is to allow people to express their opinions however unpopular and therefore take part in the democratic running of their government. Free speech also allows people to keep the government in check through protesting when there is reason to believe that the government action will result in a threat in their security or freedom (Blank, 2012; Bodenhamer, 2006).
Although the freedom of speech is entrenched in the United States Constitution under the First Amendment, the government continued to infringe on this fundamental right without any hindrance until the twentieth century when the Supreme Court intervened. As stated by Bodenhamer (2006) in his book Our Rights:
Freedom of speech did not become a subject of important court cases until the twentieth century when the Supreme Court announced one of the most amous principles in constitutional law, the clear and present danger test. The test was straightforward: government could not restrict speech unless it posed a known, immediate threat to public safety. The standard sought to balance the need for order with the right to speak freely. At its heart was the question of proximity, or closeness, and degree. If speech brought about an action that was dangerous under the immediate circumstances, such as falsely yelling “fire” in a crowded theater, then it did not enjoy First Amendment protection (p.57).
The Supreme Court only stepped in to ensure that the constitutional right to free speech was respected by the by the government and the passing of the First Amendment helped to consolidate the positive support to the right of free speech. The emergence of a multitude of contests involving the freedom of free speech prompted the courts to come up with a method of analyzing and giving their judgment on constitutional –right cases including the right to free speech. This need was the genesis of the three-tier system consisting of “Upper tier”, “Middle tier”, and “Lower tier” that was adopted by the courts to analyze constitutional-rights cases and hence help in expediting them.
A three-tier standard has been employed by the United States Federal courts for several decades to analyze cases involving rights protected by the constitution. Despite not being anchored in the United States constitution, this three-tier approach to case analysis has been very instrumental in enhancing an understanding of the adjudication process used by the courts when dealing with rights protected by the constitution. In the three-tier system, cases involving “preferred” rights such as speech and press are classified as “upper tier”. This means that the government through its various agencies can only infringe upon those rights if they can demonstrate a compelling government interest that cannot be achieved by less restrictive means. On the other hand, the government can violate “Middle tier” rights like the right to be free from gender based discrimination subject to showing that the intended restriction has a significant association to a vital governmental interest. Similarly, the violation of the “Lower tier” rights such as property rights by the government can only occur subject to the government showing that the restriction is associated to a lawful government interest in a reasonable manner (The Free Library, 2012).
Dealing with cases at the bottom level tier or lower tier is not easy. Fulfilling the upper tier constitutional test that demands proof from the government showing that a law is reasonably associated with a lawful state interest is easier than fulfilling the constitutional test for lower tier rights. For the lower tier rights, the constitution demands governments’ proof of the existence of a compelling interest that cannot be realized through less restrictive means. Because free speech is comprised of not only words but also actions, various categories of free speech will be categorized in various tiers as shown by Ducat (2008). According to Ducat (2008), pure speech will be categorized under upper tier where there is strict scrutiny. Under this standard, an individual may be forced to articulate or disseminate government’s message, be compelled to disclose his or her position on an issue, or be discriminated based on the content of his or her speech. At this level, government restriction is aimed at suppression of speech on the basis of time, place, and manner of expression. Government regulations at this level are presumed to be unconstitutional and the burden of proof is on the government to proof the constitutionality of its regulation. At this level, the government must pass the constitutional test of demonstrating that it has a compelling interest. It must also show that its regulation is the list restrictive option.
According to Ducat (2008), the middle tier is composed of ‘speech plus”. This means that at this level free speech is made up of a combination of speech and non-speech elements in the same activity. This combination allows for fulfillment of two vital conditions; (a) there is intent to convey a message: and (b) it is likely that the message would be understood by those for who it is intended. If both of these conditions are not met the activity is not expression but simply an act and falls into bottom tier. The constitutional test at this level when speech and non speech elements are combined in the same activity involves justification of the government regulation subject to fulfillment of four conditions. First, government t regulation is justified if it is within the constitutional power of the government. Secondly, if the government restriction promotes a vital or significant government interest it is justified. Thirdly, the government regulation is justified if the regulation is not related to the suppression of expression. Finally, the government regulation is justified if the incidental impact on expression is no greater than necessary to further that interest. Commercial speech falls under middle level tier. For commercial speech, the advertisement must only cover lawful activity and must not be misleading. In dealing with commercial speech, the government must demonstrate a substantial interest. The government regulation must directly advance the interest asserted by the government. Finally, the restriction by the government on commercial speech must not be more wide-ranging than needed to serve the government interest.
The lower tier involves the application of the reasonableness rules. Under this level, the government is concerned with the time, place, and manner of content-neutral speech in a public forum. Ducat (2008), argues that the government may impose generally applicable restrictions on time, place, and manner of speech, provided the restrictions fulfill three constitutional tests. First, government restrictions are justified without reference to the content of the regulated speech. Secondly, the government restrictions are narrowly tailored to serve a significant governmental interest. Finally, the government restrictions leave open abundant alternative channels for communicating the information. The lower tier is tricky as what is reasonable to one party may be unreasonable to another party. This in itself is recipe for conflict and contest as regarding the right to free speech.
In conclusion, although freedom of speech and press have been categorized as “Upper tier”, this is point of view only supports pure speech. Because free speech encompasses not only words but also other forms of speech, different elects of the free speech are therefore categorized in various tier levels. For example commercial speech which is also a category of free speech is categorized as belonging to the middle tier level. In fact “speech plus” or a combination of speech and non speech element in one activity has been classified under middle tier as observed by Ducat (2008). The government regulation must not be based on content as far as freedom of speech is concerned. The government can easily prove the upper tier requirement that its regulation has a reasonable association to lawful government intent. However, it is difficult to prove the lower tier constitutional test that the government has a compelling interest that cannot be achieved by means other than the restrictive ones. Therefore as opposed to popular belief that free speech is an “Upper tier” right, it can be categorized as a “Middle tier” or even “Lower tier” right depending on the type of free speech in question.
References
Blank, C. (2012). What Is Freedom of Speech? Web.
Bodenhamer, D. J. (2006). Our Rights. New York: Oxford University Press.
Ducat, C. R. (2008). Constitutional Interpretation: Rights of the individual. Belmont, California: Wadsworth publishing.
The Free Library: Laying pro-life groundwork. (2012). Web.