I spend a lot of time in the digital world, specifically on Instagram and there is a lot of talk right now about censorship and first amendment rights. In light of current events, I wanted to write this post as I think a lot of us need a refresher on what is and is not protected speech. As you scroll through your feeds and see things that are claiming to be censorship, keep in mind a couple things. Firstly, the first amendment protects citizens from the government, not from private companies which have the right to block certain forms of speech if they choose. Things can go against the spirit of the first amendment, and the ethics of blocking that speech can be debated, but it doesn’t necessarily violate the first amendment to do so. Secondly, the United States is unique in its treatment of free speech. There is arguably no other country in the world where there is as much free speech as there is here. In my opinion this is one of the things that both makes this country remarkable and utterly insane. Outside of the limits listed below (even those are grey) people in the United States can pretty much say whatever they want. There is freedom, even for “the thought that we hate.” When you see or read something that you think shouldn’t be allowed, ask yourself if it really goes against the law, or if you just personally have an issue with it. Just because you don’t like what someone says, doesn’t mean they’re not protected by the law to say it.
This post is pretty lengthy, so grab some tea, pop your feet up and get comfortable.
So, what does the first amendment actually say? Passed in 1791 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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Let’s break it down. The First Amendment protects five different things:
Freedom of Religion
Freedom of the Press
Freedom to Peacefully Assemble (protests & gatherings)
Freedom to Petition the Government for a Redress of Grievances (to tell the govn’t when you think what they’re doing is wrong and fix it).
At only 45 words, it covers an awful lot of ground, and leaves a lot of room for interpretation. This post covers speech specifically, though keep in mind the other four other areas. Each of the five freedoms could merit their own blog post, or book for that matter, so please click through the links in this post and read for yourself. Over the years (230 of them to be precise) the United States Supreme Court has ruled on many different cases pertaining to the first amendment. Through these cases, they have determined different types of speech that are not protected under the First amendment. These exceptions in my opinion, are also frustratingly vague. They include the following list.
Incitement. According to the Miriam-Webster dictionary incitement means, “to move to action : stir up : spur on : urge on.” The Supreme Court, in 1969, determined that the government cannot punish someone for speech (even incendiary speech) unless it is, “Directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444. So, in plain language, you can say scary, threatening things as long as the likelihood of those things happening low. To see if speech falls into this unprotected category, use the "Brandenburg Test,” to check for three things: the intent to speak, imminence of lawlessness, and likelihood of lawlessness. Does the speech in question have the intention of producing lawlessness, is that lawlessness happening soon, and is it actually likely to happen? This test, and the ruling puts an emphasis on the time element. It’s not super critical what someone says if it’s not likely to happen anytime soon. In addition, incitement of suicide is not protected speech.
False Statement of Facts. So this one seems seemingly straight forward, but is also grey and continuously disputed. Basically, there are four (sometimes five) types of falsehoods that are not protected. These are: 1. statements said with a "sufficiently culpable mental state,” ( the speaker has a clear mental state), 2. knowingly making a false statement, 3. negligence of the truth, 4. stating falsehoods in a way that implies fact, and 5. Statements made under perjury. All of these statements are accompanied by a qualifier. They are ‘usually,’ ‘sometimes,’ ‘mostly,’ and limited to ‘some’ cases. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court determined that there is, “no constitutional value in false statements of fact.” Again, a lot of this is murky and is influenced by other laws and cases. Many of the rulings in around false statement of facts relates to defamation and libel laws, both of which typically involve a public figure. This, in turn, brings up issues of a person’s right to privacy and becomes even more murky and situation dependent (see New York Times Co. v. Sullivan, (1964)). To simplify slightly, this depends on who said the falsehood and who it was about.
Obscenity. Oh boy, okay. This exception, like the ones above is subject to so much interpretation. The primary case relating to this free speech exception is Miller v. California, 413 U.S. 15 (1973). This case states three main reasons where something could be determined to be obscene. These three things make up The Miller Test. 1. Would the average person, and contemporary community standards, find the thing in question reasonable or not. 2. Does the thing in question show or describe explicitly “sexual conduct or excretory functions.” 3. Does the work have literary, artistic, political or scientific value? So, who’s to judge what has artistic value? Who determines community standards? With the advent of the internet, these standards have been increasingly more difficult to determine. This law does not apply to private items in one’s home.
Child Pornography. So, personally I feel like this one is self explanatory, but let’s review it just in case. Unlike, the Obscenity exception above, child pornography is never subject to the Miller Test. This means that you cannot claim that it has literary, artistic or scientific value as a means to defend it. This was ruled in 1982 in an unanimous Supreme Court decision, New York v. Ferber 458 U.S. 747. This case determined that free speech protections of the first amendment does not protect cases of child pornography, even if it passes the Miller Test. In other words, it’s never okay when the child in question is still below the “age of majority,” when they are legally considered to be an adult. This is different in different countries, but is generally age 18, the exceptions in the US being Alabama and Nebraska where children legally become adults at age 19.
Fighting Words. This one, how I understand it, is similar to Incitement. It was ruled in in 1942 in Chaplinsky v. New Hampshire, 315 U.S. 568. The deciding judge, Justice Frank Murphy wrote, “These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Again, the main thing to take into account here is how immediate is the threat in question. Is the ‘fight’ happening right now, and is it likely to actually happen. In addition, are the fighting words critical to the exchange of ideas? Do they help convey a point that has social value, despite its rough exterior? With that, there are, again, exceptions. If these fighting words are obvious exaggeration, they are allowed. Threats of ostracism as well as politically motivated boycotts are allowed.
Threatening the President. This one is pretty straight forward. It is against the law to threaten the President of the United States either with death, bodily harm or kidnapping. It applies to both the current President and Vice President, as well as the President and VP Elect. This differs from other cases of threat because the threatener does not need to actually have the means to carry out the threat. For example, if someone threatens, “I’ll blow up your house,” that statement could be protected if the person who said it doesn’t actually have any means to blow up a house, and in the heat of argument was exaggerating their actions. However, if you threaten the president, even if you’ve never even shot a gun, let alone buy one, fly to Washington D.C. and manage to get into the White House, your speech is not protected. Whether you have the means to or not, you cannot threaten the US President.
Speech Owned by Others. Another fairly straightforward exception to the Free Speech section of the First Amendment is in relation to intellectual property rights. The case that sets this precedent is Harper & Row v. Nation Enterprises, 471 U.S. 539, decided in 1985. An individual cannot claim something as part of their free speech rights if they are using another person’s words/ideas/art without giving proper credit. This case also protects the right to first publish. As the owner of a work you have the right to be the first person to publish that work. Freedom of speech is limited when you are not speaking your own words, especially without giving credit to the original speaker. In other words, don’t plagiarize.
Commercial Speech. Advertising is considered to hold, “diminished,” first amendment protection. False and misleading advertising is not protected speech. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) created four part test to determine if a regulating a piece of commercial speech violates the First amendment or if that regulation is reasonable. 1. Is the speech being regulated factual and not misleading? 2. Is the reason for the regulation (as stated by the government doing the regulating) “substantial"? 3. Does the regulation actually and “directly” advance that reason? 4. Is the regulation only as strict as it needs to be? Commercial speech has First amendment protection, but less than political, artistic or other (not sales related) speech. This exception is contested, even among Supreme Court justices. Both Antonin Scalia and Clarence Thomas were critical of this exception.
Restrictions based on special capacity of government. This catch all category is for other restrictions that the government places on speech based on a specific function the government is preforming. These exceptions to the First amendment lay out situations where limiting someone’s speech is or is not acceptable (see page 30 of this document). They include the following categories:
-As a government employer: Employees can’t be fired based on speech that, “Is a matter of public concern.”
-As regulation of airwaves: Speech on the radio and T.V. can be limited if it is narrow and furthers a substantial government issue (similar to commercial speech). These rules apply to traditional broadcasting, and do not apply to internet speech. The scope of the First amendment as it applies to the internet is its own separate topic.
-As an educator: Speech of students that interferes with the functioning of a school and education can be limited. This applies in K-12 schools and these limits are different in a college setting. Additionally, there are limits allowed on student publications that would violate freedom of the press in a non-student publication.
-As subsidizer/speaker: When the government is funding the speech in question, the protections on that speech changes. A general rule of thumb is that the speech needs to be view-point neutral.
-As a regulator of the bar: The bar, the institution of lawyers, has different first amendment rights than that of regular citizens. This is intended to hold them to higher ethical and professional standards.
-As controller of the military: Speech of military officers is more restricted than that of private citizens. This was determined in Parker v. Levy, 417 U.S. 733 (1974).
-As prison warden: Those in prison do not have the same first amendment rights as those not in prison. However, if an inmate’s speech is censored, they must be given an alternative means of expression (like writing).
-As a regulator of immigration: Immigrants cannot be punished for speech that is protected for citizens, but a person can be stopped from entering the country based on something they said before crossing the border.
So, the first amendment does have exceptions. Many things are allowed, and a few are not. Freedom of speech is complicated and yet so straightforward. I hope this post helps.
-Rach