How Free is Free Speech?

When a Social Media platform decides to boot someone off it’s service we hear about the obvious violation of that person’s First Amendment rights. It’s obvious because the First Amendment clearly states that anyone can say anything at anytime and in any way that they want. 

Except it doesn’t actually say that. 

Did you know that the most recent survey says that 88% of the American public has a “deep” respect for the Constitution of The United States of America. The founders of The Republic would be proud. But I’m afraid they would also be discouraged to know that only 28% of Americans have actually read the “people’s document.” 

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. It prohibits any laws that establish a national religion, impede the free exercise of religion, abridge the freedom of speech, infringe upon the freedom of the press, interfere with the right to peaceably assemble, or prohibit citizens from petitioning for a governmental redress of grievances. It was adopted into the Bill of Rights in 1791. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only applicable to Congress.

It means that a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic. So long as it is truthful or based on an honest opinion you’re okay.

The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. I guess that’s why it’s illegal to yell fire in a movie theater unless there’s actually a fire.

Knowing what the First Amendment says might be useful information to have before someone starts claiming that their First Amendment rights have been violated. Understanding what it doesn’t say is equally useful.

It doesn’t say that your employer can’t punish you for saying something they decide is offensive. If they make a rule saying you can’t say “orange juice” then they can terminate you for saying orange juice. So long as they apply the rule to everyone equally they have not denied you any “right.” 

Hiding behind the First Amendment to say hurtful things or things that offend the majority of people only “protects” you from government intervention. It doesn’t, and shouldn’t, protect you from the opinions of other people or whatever “rules” society deems appropriate.

I do think we have gotten a little carried away with what we call offensive these days. “Protection” needs to work both ways. It’s just too easy to ruin someone’s life or career by saying they “offended” you in some way. A little common sense might be useful, if someone is offended by somebody else saying “How are you?” then who really has the problem? 

The First Amendment does not say that you are free to say whatever you want, whenever you want, anyway you want. It only says you are free from government intervention if you do. 

So say what you will, just don’t be surprised when the consequences come calling. There is no protection from saying intentionally harmful or hurtful things and there are no excuses either. 

2 thoughts on “How Free is Free Speech?

  1. In the SCOTUS case Marsh v. Alabama, the Court explained that a privately owned company town was subject to First Amendment principles even though it was technically private. “Ownership does not always mean absolute dominion,” wrote Justice Hugo Black in recognizing the free-speech rights of a Jehovah’s Witness. “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”

    And following that more recently Justice Kennedy in an opinion on the 2017 First Amendment case, Packingham v. North Carolina, called the cyber age a revolution of historic proportions, noting that “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”

    Kennedy said cyberspace, and social media in particular, was among the “most important places … for the exchange of views.” He compared the internet to a public forum, akin to a public street or park.”

    Kennedy’s lofty language in Packingham v. North Carolina accurately observed that the greatest battleground for free expression both nationally and globally occurs online with social media. That language reflects many high court long-standing views that the public forum doctrine should not remain frozen in time, limited to protecting public squares and public parks, while new forums for public debate go unprotected.

    And for anyone reading, I’d be careful what you might classify as “hate speech”, as that could come back to haunt your freedoms one day. Suggested good read here: Hate – Why We Should Resist it With Free Speech, Not Censorship: https://global.oup.com/academic/product/hate-9780190859121?cc=us&lang=en&

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