郭国汀 美國言論自由发展簡史 
作者 : 郭国汀,
The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words."
During colonial times, English speech regulations were rather restrictive. An English seditious libel law made criticizing the government a crime. According to the English Court of the Star Chamber, the King was above public criticism and statements critical of the government were forbidden. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of seditious libel, "if people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the seditious libel law was not a defense.
The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.
Amendment I Freedom of Religion, Press, Expression.12/15/1791.
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.
In 1798, Congress adopted the Alien and Sedition Acts. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute; or to excite against them . . . hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States." set out punishments for publishing of up to two years' imprisonment for "opposing or resisting any law of the United States" or writing or publishing "false, scandalous, and malicious writing" about the President or Congress (but specifically not the Vice-President).
The law did allow truth as a defense and required proof of malicious intent. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act was repealed and the Supreme Court never ruled on its constitutionality.
As the controversy over slavery intensified during the 1850s, some states and municipalities enacted laws prohibiting "agitation" over the issue, but the First Amendment did not then apply to the states or their municipalities, and, in any event, those laws soon disappeared along with slavery itself. During the Civil War, federal authorities detained thousands of persons who had expressed Southern sympathies, but those who had merely spoken, and not acted, for the South almost always were released quickly.
The era of "freedom of speech" as a matter of adjudicated constitutional law began during World War I, with the trials of various persons who opposed and tried to obstruct United States participation in the war. Ever since, there has been a large amount of litigation over the definition of "speech" and the extent to which that speech is protected. A few questions that have been raised over the years indicate the scope and complexity of "freedom of speech" in American law:
·Is advocacy of illegal conduct constitutionally protected?
·Are false slanderous statements protected?
·Are obscene or pornographic words and depictions protected?
·Are commercial advertisements protected?
。Is nonverbal conduct protected when it is used to communicate ideas?
8． 1940年史密斯法強調必須有煽動[暴力]才構成此罪 。
The Alien Registration Act or Smith Act of 1940 is a United States federal statute that made it a criminal offense for anyone to" knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association." The Act is best known for its use against political organizations and figures, mostly on the left. From 1941 to 1957, hundreds of socialists were prosecuted under the Smith Act. The first trial, in 1941, focused on Trotskyists, the second trial in 1944 prosecuted alleged fascists and, beginning in 1949, leaders and members of the Communist Party USA were targeted. Prosecutions continued until a series of United States Supreme Court decisions in 1957 threw out numerous convictions under the Smith Act as unconstitutional. The statute remains on the books, however.