“The American President”, Michael Douglas as President Shephard (1995)

What Is “Freedom of Speech”?

In his impassioned finale speech (starting at :34 seconds or so), “President” Shepard speaks about the Freedom of Speech, one of the listed “rights” in the First Amendment to the U.S. Constitution:

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

On its face, it seems pretty straightforward. Freedom of Speech can’t be “abridged”. Period. I should be able to say anything I want, to anyone I want, and wherever I want without consequence or restriction, right?

It would seem so, but despite the deceptively simple language of the First Amendment, I’d be wrong. The First Amendment, including “Freedom of Speech”, was one of the most misunderstood, and the second most discussed, legal concepts I came across in my career. Why?

First, Freedom of Speech is NOT an absolute or “anything goes” privilege. “Speech” under the First Amendment is split into protected and unprotected speech. Second, the First Amendment only protects an individual from criminal punishment by a government entity for the content of their thoughts or beliefs. The First Amendment does not apply to the private sector or private individuals or prevent civil consequences.

Protected versus Unprotected Speech

Thoughts and beliefs are considered protected speech. This includes unpopular beliefs as well as what is often termed “hate speech”. Under the First Amendment, an individual can hold rude, hateful, mean, racist, biased, non-mainstream, unpopular, satirical, insulting and blasphemous thoughts and beliefs. However, as we’ll explore further below, while the content of a person’s thoughts and beliefs might be protected under the First Amendment, the manner of expressing those thoughts and beliefs might not always be.

Let’s look at some possible examples.

Is burning a US flag protected speech?

How about someone kneeling during the National Anthem?

Or how a protest march?

In each of the above examples, flag burning, kneeling during the National Anthem and marching in protest are all recognized expressions of protected speech.

So, if these are all recognized as protected speech, why do individuals still get arrested during protests or face consequences from protesting? In other words…

What’s So “Free” About Free Speech?

To recap, the protections of the First Amendment only apply to protect an individual against what the government can criminally do to you on the basis of your beliefs. The First Amendment starts with the words “Congress shall make no law”. Thus, the First Amendment applies only to Congress, not private individuals. Now, over time, “Congress” has been broadened to include all government entities at all levels: federal, state and local. That’s the “free” in free speech. With very few exceptions, the First Amendment does not apply to the private sector, your next door neighbor or the commenters on social media. If an employer becomes aware of a situation by an employee that the employer determines is not in the employer’s best interests, the employer can probably take action. We’ll discuss this further below under “civil consequences”.

What’s the Catch?

Of course, everything has a “catch”. We’ve already hinted at a few of them above.

Manner of Expression/Conduct During Expression of Protected Speech

While the government cannot criminally punish what an individual thinks or believes (protected speech), government can impose reasonable restrictions on how an individual expresses those beliefs. These “time, place, and manner” (TPM) restrictions may include requiring a permit to march, prohibiting placement of posters or fliers or even restricting protests by time and location (eg. not blocking a highway).

Courts weigh the government’s interest in the TPM restrictions (maintaining safety, flow of traffic, security etc.) with the speaker’s right to speak. With protected speech, the courts place the burden on the government to show the government’s interest outweighs the speaker’s. This balancing is designed to ensure the government action is the least restrictive and content neutral (not directed to any specific group or belief). Permits, licenses and other similar requirements are regularly upheld as long as they are “reasonable”. However, protestors/advocates/speakers can still be arrested for trespassing, looting or other criminal acts independent of their beliefs.

Let’s look at the examples above again.

If the protest march pictured above improperly impeded traffic or if the flag burners risked injury to others (by lighting a fire in a crowded group as pictured), they might be subject to arrest for their criminal conduct. Again, they are not being arrested for the content of their beliefs, but for how they are expressing those beliefs. Criminal behavior is NOT covered under the First Amendment. Put another way, destroying property, looting, violating the law, or injuring others, even in the name of a personally held ideal, is NOT protected speech. “Getting caught up in the moment” or “just going with the mob” are not legal excuses.

Unprotected Speech

With unprotected speech, however, the courts grant much greater weight to the government. Unprotected speech falls into four basic categories: Disruptive, Dangerous, Defamatory, or Deceptive. Speech under any of these categories CAN be restricted, prohibited, and punished. It’s all in the balance between interests.

Deceptive Speech

Fraudulent speech, such as a ponzi or pyramid scheme, is unprotected speech and criminal. Commercial speech, such as advertising, is protected speech, but does not enjoy the same level of protection as non-commercial speech. Courts have drawn lines between what is considered legal commercial “puffery” (eg. labeling a product as the best ketchup/mustard/hotdog in the world) and what is truly misleading or deceptive. Deceptive commercial speech, aka false advertising, can be sanctioned by government agencies such as the Federal Trade Commission. Criminal charges might also be brought in serious cases.

Political advertisements and campaign ads are in their own class. While candidates seem to continually slander and libel each other with edited commercials or out-of-context quotes or downright untruths, the courts have generally stayed away unless a true danger or other element is involved. The courts expect voters to somehow find the “truth” amongst the “political hyperbole”. As a side note, if you think the political campaign ads and attacks in recent years are the worst ever, check out the election of 1800 between John Adams and Thomas Jefferson as well as other 1800’s elections. I’ve covered some of that vintage nastiness in another blog here.

Dangerous/Disruptive/Defamatory Speech

The old (paraphrased) adage by Justice Oliver Wendell Holmes that freedom of speech does not mean you can yell “Fire” in a crowded theater just for the fun of it still holds true. The high potential for mass panic and injury, not to mention waste of resources, far outweighs your right for a little joke.

Likewise, outright calls to incite riot and violence are considered “dangerous” and therefore not protected speech. Whether speech is considered a “call to riot” or just impassioned oration is determined by the courts. If the speaker calls for immediate action from a crowd, and that action involves illegal activity, then the speech is highly likely to be considered “incitement” and the speaker may well face prosecution.

Threats of bodily injury, extortion, or blackmail are also unprotected speech and criminal. Defamatory speech (slander/libel) is unprotected as well, but is resolved civilly (see below). Finally, while adult pornography (as long as not obscene) may be protected speech, child pornography is never protected. See here for DOJ’s discussion on Federal Obscenity Laws and another article discussing this particularly thorny area.

Civil Consequences

While the First Amendment protects the speaker from being punished criminally by the government, it does not protect the speaker from civil consequences by private entities. Civil consequences include being sued for libel or slander as well as administrative ramifications by an employer. **

Employment

Consider the following possible examples of postings on social media. Could an employee face employment consequences?

The answer is probably yes in all examples.

Number 2 is pretty easy: don’t lie to your boss.

Numbers 1, 3, and 4 could certainly be an issue in a customer service oriented industry. How could the employer ensure customer safety/service if the employee feels this way? The employer has a duty to the public to ensure the quality of both food and service, not to mention laws that require the employer to do so.

Numbers 5 & 6 are problematic in the healthcare industry if a medical provider refuses to perform a medical procedure based on a personal belief. The hospital/medical care company is obligated to provide sound care and could face its own liability if its employees do not perform up to standard. Can the employee be fired or moved to another position (even demoted)? Likely.

Of course, each scenario turns on the particular circumstances, but private employers have a great deal of latitude. If a fired employee sues the employer, claiming the firing violated the employee’s right of free speech, the employer will likely prevail. Remember, civil ramifications, including negative social/social media consequences, civil lawsuits, or losing a job are NOT what the First Amendment protects an individual against. Now, that having been said, there may be other restrictions, such as the whistleblower laws, certain civil rights statutes, contractual issues or equal protection provisions, that may limit the employer’s actions. But it won’t be the First Amendment.

What if the government is also the employer? This can get dicey, but here is a good guide. Bottom line, Government employees do have First Amendment rights, but the government employer can limit its employees’ speech in certain cases. With federal employees, for example, the Hatch Act limits partisan and political speech in an effort to maintain neutrality in the workplace.

Punitive Actions By Private Companies

By this time you probably can guess. If it’s a private company doing it, the First Amendment doesn’t apply. So, being kicked off a social media platform or having a comment/post deleted is not a violation of a person’s First Amendment rights. Neither is it a violation of the First Amendment for a private publisher to quash a potential book deal or withdraw a job offer based on a person’s comments or actions. There might be contractual or other legal issues for the company in those cases, but not First Amendment concerns.

Last Thoughts…For Now


Consider that what we deem acceptable/unacceptable in this country, might be the opposite in another. A nation’s particular history, of course, aids in determining its particular laws.

For example, Nazi insignia, generally protected under the First Amendment here, is considered a crime in Germany and other nations.

Further, a noose hanging in a tree or a burning cross in a front yard may be protected in another country, but in the U.S. it may be considered a prosecutable threat (non-protected speech) based on our own history.

In addition, while the US has a long accepted history of its citizenry protesting by hanging/burning effigies of its leaders or burning the U.S. flag, such actions elsewhere might be deemed serious crimes.

Even in the U.S., while the vast majority of “effigy” protests are dismissed as free speech, a person might still expect a visit from the United States Secret Service (USSS) and possible criminal charges if the USSS determines their “speech” (including burning/hanging effigies) amounts to an actual credible threat.

**As always, the views expressed here are my own and not meant as legal advice.

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