Figuring out Free Speech

The First Amendment: you hear the term tossed around constantly. You hear it as a defense for a controversial tweet, as the basis of a Supreme Court decision, or around your college campus when controversial speakers are invited. What really is the First Amendment thought, from a legal standpoint, and what liberties does it guarantee? The answer is more complicated than it seems. 

Let's start with the basics. The First Amendment full text reads, "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." There are five specific rights guaranteed in Amendment I: freedom of religion, freedom of speech, freedom of press, freedom of assembly, and freedom to petition. 

Freedom of religion, though it has been debated and interpreted differently for centuries, is the most self-explanatory aspect of the First Amendment. Amendment I makes two guarantees regarding freedom of religion: that no laws will be passed to establish a national religion, and that no one will be prohibited from practicing their religion freely. Freedom of the press ensures that the government will not interfere with any individual or group's ability to publish what they see fit. Freedom of assembly guarantees people the right to assemble and take action as groups, while freedom to petition the government protects the right of the people to criticize the government without fear of punishment. While freedom of speech seems to be the most self-explanatory First Amendment right of all, it is one of the most nuanced and complex topics in American legal history. Each of these aspects of Amendment I are far more nuanced than I have portrayed them above, and each will be covered in a later blog post. This post, however, will focus on freedom of speech, and discuss its limitations in American society today. 

What does freedom of speech mean? 
Freedom of speech is a term that is often used lightly without a solid definition. At its most broad definition, freedom of speech as enumerated in the First Amendment prohibits the government from infringing on or banning speech because it disagrees with the content being expressed. 

Over the past several centuries though, the term "free speech" has become more complex.Freedom of speech has come to include the right not to speak (West Virginia Board of Education v. Barnette), the right to advertise (Virginia Board of Pharmacy v. Virginia Consumer Council), and the right to contribute to political campaigns (Bucky v. Valeo). ​The term speech itself has been complicated by decisions like that in Texas v. Johnson, which ruled that burning a flag constitutes a form of "symbolic speech" that is protected by Amendment I, and that of Citizens United v. Federal Election Commission, which ruled that the spending of money is constitutionally protected speech that cannot be restricted by the government. 

Freedom of speech, thought it has become more complex over the centuries since it was enumerated in the United States Constitution, still generally refers to the natural right of an individual to speak freely without fear or threat of censorship by the government or any government institution. 

What kind of speech is not protected by Amendment I?
The United States guarantees more freedom of speech than anywhere else in the world, but there are certain forms of speech that are not protected by Amendment I or other speech law. These include:

• Speech that intently, effectively, and immediately incites violence
• True threats
• Obscenity 
• The burning of draft cards
• Slander and defamation

​Entire books have been written on the nuances of each of the above topics. Generally, speech that is unprotected is that which poses a real and direct threat to the welfare of others. In these circumstances, the government can legally restrict speech. 

One of the most important things to remember about the First Amendment is that it lays out the rules that govern free speech in the public domain. There are a slew of other speech issues that come with speech when it is moved into the private sector. 

How are the rules different for speech in the private sector?
It is important to keep in mind that the First Amendment protects freedom of speech from infringement by the government; Amendment I does not prohibit private entities from violating individual freedoms. As such, freedom of speech is not a legally held right in private workplaces or universities. Though there are laws to protect employees from discrimination, there is no constitutionally protected freedom of speech in the workplace. Public sector employees enjoy the right to free speech in the workplace, although employers may restrict free speech in order to ensure a functional workplace. 

Universities follow a similar structure. Any censorship of protected speech at a public university constitutes government censorship, and it is thus forbidden. Private universities, however, reserve the right to craft any kind of speech restrictions they see fit. Throughout American history, private universities prided themselves on holding higher education to a standard of free expression even higher than that which is guaranteed in the Constitution. This culture has shifted over the course of the past decade though, as students continue to demand more restrictive speech codes in the name of protesting harassment and discrimination. A later article will consider why such speech codes are counterproductive.

Why should I care? 
Freedom of speech is one of the attributes that makes the United States a strong nation. It allows democracy to flourish, constructive disagreement to occur, and the nation to progress. Knowing your rights is imperative to ensuring that freedom of speech is both protected and properly utilized. As this blog continues, we will cover issues such as internet speech, the value of constructive disagreement, and how freedom of speech contributes to American democracy. Until then, we encourage you to leave your comments below! Are there any free speech basics we missed? Are there specific codes and legal decisions with which you disagree? Let us know, and contribute your voice to our conversation. After all, freedom of speech is meaningless unless we utilize it. 

-Alexis Mealey