Freedom of Speech: Not (Part 2)
How, When and Why Some Speech is Not Protected by the First Amendment
In my last article on the First Amendment’s “speech” clause, I established that the speech clause of our Constitution is not absolute. I then asked, what has been our historical understanding of “free speech” and what ought to be our understanding today? Does it matter that today’s United States is not our Founder’s United States? I concluded last week by saying that my opinion as to a modern “freedom of speech” that retains the spirit of what our Founders sought to achieve may not be to everyone’s liking.
The best way to think about Freedom of Speech in America is to look to what our Nation’s highest court has said about this critical clause of The First Amendment.
In an article at The National Constitution Center, Professors Stone and Volokh (gentlemen at the stop of the mountain when it comes to The Constitution) say that government “may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.”
The important point here is that the First Amendment only restrains the government. The First Amendment does not protect speakers from actions by private individuals or organizations, such as private employers, private colleges or private landowners.
Our Supreme Court has expanded the reach of the Speech Clause to include broadcasters and the Internet. It includes symbolic speech, such as displaying flags, burning the flag, wearing of armbands, burning crosses and the like.
Generally, government cannot target a speaker’s message. The Court has frowned on laws that prohibit people from criticizing a war, opposing abortion, or advocating higher taxes. The Court has consistently said that government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.
On the other hand, there are a few situations that are of lesser First Amendment value:
Defamation. This refers to false statements that damage a person’s reputation. This can lead to civil liability or even criminal liability. A speaker who deliberately lies or said things he knew were likely false is subject to legal liability (although conservative Justice Clarence Thomas, alone on the Court, wants to revisit this rule when it comes to public figures.
True threats. For example, “I’ll kill you if you don’t give me your money.”
Fighting Words. This refers to face-to-face personal insults that are likely to lead to an immediate fight. And here, we have the first area where I want to pause and consider. Under this doctrine, the Court has said that this exception does not apply to political statements that offend others and provoke them to violence. For example, in a 1965 case, the Court said that civil rights or anti-abortion protesters cannot be silenced merely because passerby respond violently to their speech.
Obscenity. The Court has been all over the place regarding what the late Justice Potter Stewart referred to as “I know it when I see it.”
Child Porn: enough said.
Commercial Advertising. Speech that advertises a product or service is protected but not to the same extent as other speech, such as political speech. The government can usually ban misleading commercial advertising.
The areas I believe are being re-evaluted relate to “fighting words”, as well as hate speech and blasphemy (the cases that allowed Nazis to march through a Jewish neighborhood and those that allow protests about veterans near a funeral gathering made many wonder just how far such speech can go).
The other area where government appears to be able to restrict speech is when the speaker is in a special relationship to government. We have seen such cases involving government employees and students in public schools.
Then there are the “time, place and manner” restrictions. If the law is “content-neutral”, such as restrictions on noise, blocking traffic and the size of signs, the law will usually upheld under a “reasonableness” standard.
The Court and its changing membership have been far more protective of free speech than the Court of the 19th and early 20th centuries. In the “olden days,” punishment of blasphemy was allowed. During or soon after war, the Court was more inclined to allow punishment for speech that condemned the military draft or praised anarchism.
Then of course, we have the entire subject of Citizens United and whether corporations are truly “people” entitled to spend money as a form of “speech.”
We are at present dealing with the issue of publication of classified information. Such publication generally cannot be punished unless the government can demonstrate that the publication or distribution will cause a clear and present danger of grave harm to national security.
The speech that remains a vexing one for the Court is often referred to as “crime-facilitating” speech. This is speech that contains information that helps folks commit crimes or get away with committing crimes. Does the speaker have a specific purpose of promoting crime? There is of course the incitement exception; speech that aims to persuade people to commit imminent crimes. For example, if you are a powerful and influential government leader and you speak at a rally where you know the attendees have guns and you tell them to march to the Capitol, and then they march to the Capitol while you watch approvingly on television, have you exercised your free speech rights or have you incited?
Next week: I will look at a number of these historical situations and ask three questions:
Is at least some hate speech subject to a lower level of First Amendment protection?
Is the very nature of social media with its potential to spread bile worldwide such that America must rethink the scope of First Amendment protection regarding social media? Is it time to pass laws applying The Communications Act applicable to over-the-air broadcast outlets to the Facebooks, Googles, X’s and Tick-Tocks of the world?
Should the rare and unprecedented appearance of an obviously authoritarian, nasty and character-compromised figure, closer to a mob boss than a true leader in the spirit of America’s Constitutional mandate, be viewed through a different lens; a lens akin to a cult leader who, in an instance, can incite people to violent threats against government officials? Perhaps more specifically is the following: Does a President of the United States, or former president, whose very words can affect the security of the nation his purportedly serves, have the same free speech rights as others?
To be continued…