American knows that they have a constitutionally protected right to freedom of speech.
Many people don’t realize, however, that the First Amendment only protects you from government intervention into speech. It doesn’t mean people can’t disagree with you, or argue with you, or tell you to shut up. They have their right to free speech too, after all. It just means you can’t be arrested or thrown off public property or otherwise interfered with by government actors due to the content of your speech.
Not Everyone Enjoys the Same Protected Speech Rights
The United States has one of the strongest free speech laws in the world. We value speech (and your right to not have the government tell you what you can and cannot say), higher than just about any other country. And although it seems simple enough to say everyone has a right to say whatever they want to say, it actually a series of complicated balancing acts. Because speech can be harmful. Think hate-speech. Think propaganda. Think dictatorships. Think Nazis.
I think we, as Americans, often operate under the fallacy that other countries- especially other Western countries- value speech the same way we do. And they don’t. Many countries that have had problems related to rampant harmful and manipulative speech in the past have chosen to limit those types of speech in ways that most Americans cannot and would not tolerate.
For example, (back to Nazis, sorry) in Germany, it is illegal to deny the existence of the Holocaust; World War II taught Germany a lesson it has no interest in forgetting anytime soon. As an American, I think denying the Holocaust is stupid and wrong, hurtful to survivors and, frankly, dangerous– and I will shun you if you’re dumb enough to say something like that to me. But, I can’t call the cops to come arrest you or shut you down or force you to leave the public square. You have the legal right to voice your stupid, dumb opinions.
How Our Country Works to Shut Down Harmful Speech
In America, we rely on the public discourse and open forum of ideas to shut much of that harmful speech down. Sure, you have the right to say your dumb White Supremacist thing, but be prepared to have the vast majority of other voices shout you down and shut you out, with no government involvement necessary.
The U.S. government generally cannot ban “harmful” or “hate” speech due to strict First Amendment protections. However, instead of enforced silence, the system handles offensive ideas with more speech. Civil rights organizations, community groups, and citizens counter hateful ideas through peaceful demonstrations.
So, What Is Free Speech Anyway?
The next interesting question with regards to the First Amendment is, What IS Speech?
It’s not just words. It can be anything that is done to express a meaning. Art is speech. Protest is speech. Wearing a black arm band is speech. Yes, burning the flag is speech. And, as we have learned from Citizens United, spending money (even corporate money) to support or promote a certain cause of speech…is free speech.
Balancing Free Speech and Other Harms
Even in the U.S. the balancing act of free speech vs. other harms must be done. So, what isn’t protected speech?
If “speech” has no purpose other than to cause chaos or other harm, it is less protected. If the government has an important purpose for regulating speech that cannot be accomplished in a less restrictive way, certain speech may be limited.
For example, during the Vietnam War, the United States Supreme Court determined that war protestors could be punished for burning their draft cards, even though this was clearly expressive speech done for the purpose of getting an anti-war message across. The Court determined that government’s stated purpose of regulating and identifying members of the selective service outweighed the protestors’ speech rights—though this decision has been widely criticized by legal scholars in its aftermath.
When Speech Is Limited to Protect American Citizens
Less controversially, speech is sometimes limited when the purpose is the protection of citizens. We’ve all heard that “you can’t yell ‘fire’ in a crowded theater.” That is just one example of a widely accepted limit on free speech. The possible dangerous condition of creating fear and chaos for no reason, is far outweighed by any “right” you have to cause that dangerous condition with your speech. Similarly, inciting a riot or other violence or other “fighting words” intended only to provoke will not be protected.
How Does Defamation Factor into Free Speech?
What about defamation? Your right to free speech ends when it harms the life or reputation of another. But only if it is untrue. You can spread your vile opinion about someone or state true and harmful facts about them all day, but your harmful lies about factual matters will not be protected. This is another balance that we have struck as Americans.
Defamation is an established exception to free speech, meaning false statements of fact that damage someone’s reputation are not shielded by the First Amendment. Because completely unrestricted liability could create a “chilling effect” that discourages legitimate public debate, the legal system balances the two by imposing specific constitutional standards on defamation claims.
Public Figures Are Often Targets of Free Speech Backlash
Unlike other countries where public figures (especially politicians) may receive greater legal protection from criticism, in the United States it is the opposite. The more well-known you are (and especially if you have thrust yourself into the public eye intentionally), they more you are thought of as able to weather the tides of public opinion.
You have essentially opened yourself up to public criticism and the government isn’t going to get involved and stop that. And again, this another example of how we put our trust in the public forum. If the detractors are outweighed by the supporters, the public has done its job to protect your reputation. And if the detractors win out, well, all those people can’t be wrong, right?
Important Limitations and Scope of The First Amendment
While we have discussed a number of situations where speech is protected in America, there are important limitations. According to the Civil Liberties Union, The First Amendment protects your rights to speech, religion, the press, assembly, and petition from government interference. However, this protection is not absolute and has distinct limitations in scope and application. To give you a better understanding of the big picture, let us review a few:
- Government Action Requirement: The First Amendment only applies to any individual or entity operating with the authority of the state. This could include elected officials, police, public school administrators, or regulatory agencies. It does not protect you from disciplinary action by private entities like your employer, universities, or social media platforms.
- Time, Place, and Manner Restrictions: The government can regulate the time, place, or manner of speech, provided these rules are content-neutral, serve a significant public interest, and leave open ample alternative channels for communication.
- No Blanket Immunity for Illegal Conduct: The First Amendment does not protect speech used to commit or plan a crime or acts of civil disobedience where laws are broken as a form of protest.
What Are the Categories of Unprotected Speech?
Under The First Amendment, freedom of speech is not an absolute right. Hateful or offensive speech is generally protected, unless it crosses into these specific categories. The U.S. Supreme Court has established narrow classes of unprotected speech that the government may regulate, and certain violations can be punished by law, including:
- Incitement to Lawless Action: Speech intended to, and likely to, incite immediate unlawful action is not protected.
- True Threats: Statements expressing a serious intent to commit unlawful violence against individuals do not fall under free speech.
- Fighting Words: Face-to-face insults likely to provoke an immediate, violent breach of the peace, because the intent of these words is not to convey ideas.
- Obscenity: Material that is blatantly offensive, appeals to prurient interests, and lacks serious value is not protected.
- Fraud and Perjury: Knowingly making false statements for gain or under oath causes harm and is not protected by the First Amendment.
- Child Pornography: Visual depictions of the sexual abuse of minors is not protected by free speech.
- Speech Integral to Criminal Conduct: Speech used as part of committing a crime, such as extortion or solicitation, is not protected.
Bring Us Your First Amendment Questions to Protect Your Rights
So, there’s a lot, lot, lot that goes on with determining the limits of just one clause of one sentence in one amendment to one document. “Congress shall make no law…abridging the freedom of speech…” is not as simple as it looks.
To learn more about the specific interpretations established by the Supreme Court, reach out to the client-centric attorneys at Fasig | Brooks. We are dedicated to building relationships and serving your family for generations to come.
