The Scope of Free Speech: Categoricalism versus The Balancing Approach

“Fag burns.” “DIE.” These slurs were scrawled outside the GLBT office at N.C. State last October. Should the instigator be indicted for hate speech in addition to vandalism? Was this expression an act of hate speech? Or was it free speech? Is the message he conveyed protected under the First Amendment? Two and a half centuries ago, the nation’s forefathers drafted the Constitution of the United States. The aim of the Constitution is to protect the values that this nation was built upon. This document, arguably one of the nation’s most important, encompasses values such as democracy, equality, religious tolerance, as well as the freedom of speech.

The free speech clause in the Bill of Rights states: “Congress shall make no law…abridging the freedom of speech” (US Const., amend I). This clause, albeit consists of a mere ten words, holds much power and affluence in the American unique way of life. It guarantees Americans the right to speak freely without censorship by preventing the government from restricting the rights of the people to express their opinions. Consequently, this freedom can encourage citizens’ participation in politics; promote an adaptable and tolerant community; facilitate the discovery of truth; and ultimately create a stable nation. However, how much freedom should be granted to an individual? Where should the line be drawn for the coverage free speech protection? (1) What happens when the exercise of free speech puts other constitutional values in jeopardy? What values should prevail? (2) In an attempt to address these questions, many opposing interpretations have been presented. While some construe this clause in an absolute, categorical approach, others take on a more lenient, balancing stance. (1)

In ca...

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...constitutional values. Even though categories can be applied without referencing the underlying principles, the establishment and rationalization of these categories rely heavily upon those values. Otherwise, the legitimacy and stability of the constitution can be undermined. Furthermore, both acknowledge that words that can result in harmful actions, such as yelling “Fire!” in public, do not have immunity from regulation. Even the devoted absolutist Justice Black was flexible when it comes to outlining the borders around “speech” He did not give all speech-like acts complete protection and was quick to classify speech acts that are out of bounds of the First Amendment. (1)

Ultimately, the divergence in interpretation boils down to the age-old conundrum: Rules versus standards.

Inevitably, there will always be those that will abuse the right to free speech.