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How Government Works

Freedom of Speech, What it is and What it isn't

Most Americans know the First Amendment to the U.S. Constitution grants us freedom of speech.  It states: “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, . . . .”  The intent of the drafters is clear.  They believed that in a free society, people must be permitted to criticize government and lobby for change.  But how far do free speech protections go?  What are the limits of free speech, and who has the authority to restrict speech?  These questions have repeatedly been addressed by the United States Supreme Court, and over the past 200 years, the definition of freedom of speech has evolved and been refined by the courts.

Initially, the First Amendment protection was limited to Congressional action, but the courts expanded the definition to prohibit federal, state, and local governments from enacting limitations on freedom of speech or freedom of the press. While freedom of speech is one of our fundamental rights, there are limitations.  What is and what isn’t protected speech has been the subject of countless lawsuits over the years.  While those court decisions have provided some clarity, technologic advances and the public’s use of internet forums have created new issues and challenges for the courts to address.

As a general rule, limitations on free speech preclude speech that is harmful to others, threatening, or generally repulsive and reviled.  

Obscenity is Not Protected by the First Amendment.

The issue here is defining what is and isn’t obscene.  Back in the 19th century, U.S. courts held that blasphemy was obscene speech and not protected by the First Amendment.  Those rulings have since been overturned, and people now have a Constitutional right to blaspheme as much as they want.  Cursing or swearing is not what the courts consider obscenity. Most pornography also falls in the category of protected speech.  Obscenity is something worse.   In 1973, the United States Supreme Court, in Miller v. California, created a three-part test for a legal definition of obscenity. 

(a) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.  

Child pornography, images depicting torture, murder, rape or mutilation are some of the types of materials the courts consider pornographic.  Child pornography is banned speech even when it does not meet the Miller test. The limits on obscene speech also apply to broadcasting.  The FCC regulates broadcasting and sets obscenity guidelines broadcasters must follow.

Lying, in Many Circumstances, is Not Protected Speech.

Lying under oath is perjury, a criminal offense.  It is not protected speech under the First Amendment.  Lying to investigators, charged by a government agency to investigate a crime, is also a criminal offense without Constitutional protection.  We have all read about financiers or businessmen going to prison for lying to federal investigators.  Martha Stewart is an example most people remember.  She went to prison for lying about her stock trading during a federal investigation.  Dishonest or bogus advertising can also lead to prosecution.  Although deceptive advertising is a pervasive problem in our society, if you can pin down the perpetrator, it can be prosecuted as a crime.

On the other hand, politicians and other public figures have considerable leeway in bending the truth to suit their own interests.  Most of us recognize political rhetoric for what it is, a pack of lies designed to promote the candidate’s agenda.  You may not like it, but it is protected speech under the law.   

Fighting Words, Threats, and Inciting Violence Will Not Be Protected.

The “fighting words” doctrine was first described in Chaplinsky v. New Hampshire,315 U.S. 568 (1942) where the Supreme Court upheld a state law prohibiting one person from insulting or defaming another on a public street.  The statutory prohibition at issue applied only if the derisive language was designed to incite or promote violence.  The purpose behind the statute was to preserve the public peace by preventing street brawls. The Supreme Court upheld the law because it was so narrow in scope.  Ordinary insults were not prohibited. 

In Cohen v. California, 403 U.S. 15 (1971) the Court further clarified its position on threatening or violent speech.  The Cohen Court held that a t-shirt containing an expletive was protected by the First Amendment because it was not directed at any one person and could not reasonably be expected to lead to a breach of the peace.

It is this same doctrine that prohibits overt threats of bodily harm, swatting, or yelling fire in a crowded theater.  Falsely yelling fire in a crowded building and swatting are pranks that can lead to people being injured or killed.  Just last week, there was a news story about a young man’s swatting prank leading to an innocent person’s death.  The young man called 911 and falsely reported a hostage situation.  A SWAT team was dispatched and killed an innocent man who had no idea what was going on.

Schools May Limit a Student’s Free Speech Rights.

Schools have the right to ban cursing, to censor school newspapers, and to monitor books and publications brought on campus.  While some states have passed laws limiting a school’s control over student free speech rights, the school’s obligation to protect students and maintain an orderly environment still trumps the right of free speech in the school setting.

Private Enterprise and Places of Employment.

The First Amendment protections apply to government actions.  They do not apply to private businesses.  You have no free speech rights in your workplace.  Your employer is entitled to enforce prohibitions against political speech, religious speech and profanity.  If you have a bumper sticker on your car that your boss deems offensive, he can demand that you remove the bumper sticker or face dismissal.  Private employers can ban political discussions and clothing that expresses political or controversial views.  

As with employers, the First Amendment does not apply to restrictions imposed by a private business.  A store, restaurant, or other business can ban patrons who violate their company policies by wearing clothing with profanity, carrying picket signs or posters into the business, screaming profanity at employees or customers, or giving soapbox type speeches.  Private business has the right to refuse service to customers it deems offensive, so long as there is no sexual, racial or religious discrimination. 

Government Employees.

Government employees do have some First Amendment free speech rights at work.  There have been multiple Supreme Court cases on this issue.  In Pickering v. Board of Education, 391 U.S. 563 (1968), the Court made it clear that government employers do have a legitimate interest in regulating the speech of employees.  The Court stated that the government has a greater right to restrict employee speech than it does the speech of the general public, but that right is not absolute.  Government employees do have the right to speak out as citizens on issues of public concern.  The Pickering case concerned a public, school teacher who wrote a letter to the newspaper criticizing the school board administration.  The Court ruled it was unconstitutional to fire the teacher for acting as a concerned citizen addressing an issue of importance to the community. The teacher worked for the school and not the administration, so the speech at issue was not directly related to her job.   In contrast, the Court reached a different conclusion when the speech was directly related to the employee’s job.  In Connick v. Myers, 461 U.S.138 (1983), the U.S. Supreme Court upheld firing an assistant district attorney for insubordination, when she circulated a questionnaire around the office questioning employee morale. 

Time and Place Restrictions on Free Speech.

The Constitution allows regulation of free speech when the imposed restrictions are content neutral, serve a significant government interest, and there are plenty of alternative methods for communicating the restricted views.   Time and place restrictions have been used to ban picketing in front of abortion clinics, to ban nude dance clubs and adult book stores in school zones, and other similar restrictions.  Protesters have been a fixture at political gatherings since political parties were invented.  The government is permitted to confine protesters to so called “free speech zones” to protect both attendees and protesters from a violent confrontation.  

Prior restraint is another type of time and place restriction on free speech.  While the courts are very reluctant to allow prior restraint restrictions, there are a few exceptions.  For example: the government can prohibit a newspaper from publishing the expected departure date and location of troop ships enroute to a battle zone.  

Examples of Speech that is Protected by the First Amendment.

Now, let’s discuss a few examples of speech that is protected by the First Amendment.  You have the right, through your actions, to refrain from speech.  We are not talking about your Fifth Amendment right to remain silent.  We are talking about the types of actions people use as protest.  For example:  you don’t have to salute the flag; you have the right to take a knee during the National Anthem.  You have the right to use offensive words and phrases to communicate a political message.  Students have the right to wear black armbands at school to protest a war.  People have the right to engage in symbolic speech like burning the flag in protest.  You have the right to advertise your professional or commercial services.  All these rights have been established through litigation and decisions by the United States Supreme Court.

Free speech and a free press are essential to our democracy.  In the words of Evelyn Beatrice Hall as she paraphrased Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.”

Resources

www.billofrightsinstitute.org/founding-documents/bill-of-rights

www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does

www.fas.org/sgp/crs/misc/95-815.pdf

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This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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