Free to Speak
(This article is my response to students over the years who have asked about First Amendment rights. The repeated misunderstanding claims the right to say whatever one wants, wherever one wants, no matter the harm to others. If what I have written is inaccurate, please post your thoughts.)
I’m a free speech advocate, and not just because I’m a university instructor in writing and communications. I see the marches and protests in social media reels and repeated in the news channels. Though they can be disturbing, protests and marches are good for our country. Our right to free expression (through words or demonstrations) means disagreeing voices are heard. It means that not just the elite, elected, and affluent have a voice. It also means that people in our nation can talk about their faith with others or worship openly without fear of reprisal or retaliation.
If someone wants to march for whatever cause, that’s a good thing. It’s foundational to the many other freedoms we cherish and under which all liberty-loving people thrive. It is integral to our liberty, even when that speech or expression in action or art offends and people feel “hated on.”
The beauty of our enduring system is this: we have a long history of expanding our rights to more people as well as tempering our rights so one person’s freedom doesn’t infringe on another’s. It’s a tension worth fighting for. Our Supreme Court has balanced freedom of personal expression with the larger scope of freedoms in ways that keep the freedom intact but protect others’ rights. That means, I’m free to express, but not at the harm or violation of another’s freedoms.
Here are the limits to the original First Amendment text that have become law:
- Defamation with malicious intent – I can’t express something publicly knowing it will harm them physically, financially, or socially. Defamation and its cousins, libel and slander are no longer operating under the free speech amendment.
- Fighting words that, by expressing them, causes harm to them by kindling violence as a response – I can’t incite another to hurt others physically and in the moment. Fighting words are usually limited to face-to-face altercations; since they are the cause of another’s harm, they are not a part of our rights to free speech.
- Obscene expressions – I can’t publicly express words, acts, or materials that “the average person” is offended by, including depictions of sex beyond community standards, especially if it clearly lacks serious artistic value. How this is uniformly restricted is a bit of a mystery, but it has to do in part with acceptable community standards and values. But, like Justice Stewart said in 1964: “I know it when I see it.”
- Expression that incite a clear and present danger – mainly for political speech, my expression can conflict with the “other side” to a high degree, but when the expression has the potential to produce harmful acts, it crosses the line and triggers “imminent lawless action.” This is also the “don’t yell fire in a crowded theater” rule (even though it’s not against the law to yell “fire” in a theater, if you do and someone is trampled, you incited the cause.)
- Time, place, and manner expressions – I can protest, but not anywhere, at any time or in any place. Public protests often need permits. Protests can be loud, in your face, cause disagreement, but they cannot cross a line: no physical harassment or harm; no blocking of access to others’ movement. I can bullhorn my position to the sidewalk of people; but I cannot stop them from moving past me.I can blow a whistle or make loud noises; but when it becomes obstruction or threat of injury, its beyond the protection of free speech.
- Speech that threatens, intimidates, or harasses others – similarly, when I make my position known at whatever volume I choose, it cannot speak “true threats” to harm or strike fear or manipulate to cause harm.
- Expressions that cause potential direct, immediate, and irreparable harm to our nation. Our “right to know things” and the nation’s safety are balanced in this. In war time, this is an especially tenuous restriction.
- Fraud or Perjury are both exceptions to our right to free speech – I can’t defraud another with what I say or do and I can’t lie under oath.
- Quid-pro-quo and harassment in the workplace or on campus – I can’t insist from someone a response what benefits me (financially, sexually, status, etc.) yet harms another or keeps them from doing what they legally have a right to do, say, or benefit from.
(Disclaimer: I’m a teacher and not a lawyer; but I can read what lawyers write as long as they keep it simple. These two organizations, one with a liberal stance and the other with a conservative stance, keep it simple. Follow up to know more.)
https://www.thefire.org/research-learn/unprotected-speech-synopsis