Is Speech Really Free?
While most of us are lamenting what are, if any, limitations of free speech in our democracy, one thing is certain – it does not come without consequences! While the first amendment states that our democracy gives its citizens the freedom of speech and to peaceful protest. There are in fact limitations to the first amendment in our country. Nothing online is protected for “free speech”, all platforms, hosts, apps, and Internet companies are exactly that – companies who have the ability to limit, as they see fit, speech from any American. Just like the company you work for has rules and limitations of your work environment, companies like Twitter, Facebook, Instagram, Amazon, Google, Apple, and more are within their rights to limit anything on their platforms or devices they feel or see as unfit for publication.
In fact there are limitations in this country for Free Speech. They are as follows:
Inciting imminent lawless action
Speech that incites imminent lawless action was originally banned under the weaker clear and present danger test established by Schenck v. United States, but this test has since been overturned by the imminent lawless action test established in Brandenburg v. Ohio.
Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected “free speech” under the First Amendment.
See Watts v. United States, Virginia v. Black.
Obscenity, defined by the Miller test by applying contemporary community standards, is a type of speech which is not legally protected. It is speech to which all the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)
The 1998 Anti-Obscenity Enforcement Act in Alabama applies to sex toys. The similar 1973 Texas obscenity statute (updated in 2003) was declared unconstitutional in 2008.
See New York v. Ferber.
Limits placed on libel and slander attach civil liability and have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v. Falwell made famous in the movie The People vs. Larry Flynt. New York Times Co. v. Sullivan established the actual malice standard, a high bar for public figure plaintiffs. Making false statements in “matters within the jurisdiction” of the federal government is also a crime.
Invasion of privacy
See Time, Inc. v. Hill.
Intentional infliction of emotional distress
See Hustler Magazine v. Falwell, Texas v. Johnson.
See Buckley v. Valeo and McCutcheon v. Federal Election Commission.
Independent political expenditures
See Citizens United v. Federal Election Commission
The government speech doctrine establishes that the government may censor speech when the speech is its own, leading to a number of contentious decisions on its breadth.
Public employee speech
Statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline as per the case of Garcetti v. Ceballos. This applies also to private contractors that have the government as a client. The First Amendment only protects employees from government employers albeit only when speaking publicly outside their official duties in the public interest Pickering v. Board of Ed. of Township High School Dist., updated and clarified by Lane v. Franks. Speech is not protected from private sector disciplinary action.
A number of cases consider speech related to or required by an employer, or speech retaliated against by a third party such as an employer. The case Lane vs. Burrows (previously Lane vs. Franks) considers a number of these matters and summarizes the outcome. A person who testifies in a court, and where that testimony is not part of their employment duties, testifies as a citizen and has First Amendment protection, whereas a person whose speech is an actual part of their duties and is not merely related to their duties may have no such protection.
The issues raised in such cases include the overriding need for persons in court to feel safe to speak the truth, and to in fact speak the truth; the requirement of employers to be able to act in the event that an employee speaks in a manner damaging to the employer; the rights of whistleblowers; the benefit to society if people who know the reality of a matter and are well informed of it, are able to speak of it.
In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended broad First Amendment protection to children attending public schools, prohibiting censorship unless there is “substantial interference with school discipline or the rights of others”. Several subsequent rulings have affirmed or narrowed this protection. Bethel School District v. Fraser (1986) supported disciplinary action against a student whose campaign speech was filled with sexual innuendo, and determined to be “indecent” but not “obscene”. Hazelwood v. Kuhlmeier (1988) allowed censorship in school newspapers which had not been established as forums for free student expression. Guiles v. Marineau (2006) affirmed the right of a student to wear a T-shirt mocking President George W. Bush, including allegations of alcohol and drug use. Morse v. Frederick (2007) supported the suspension of a student holding a banner reading “BONG HiTS 4 JESUS” at a school-supervised event which was not on school grounds. In Lowry v. Watson Chapel School District, an appeals court struck down a school dress code and literature distribution policy for being vague and unnecessarily prohibitive of criticism against the school district.
Such protections also apply to public colleges and universities; for example, student newspapers which have been established as forums for free expression have been granted broad protection by appeals courts.
Publishing, gathering, or collecting national security information is not protected speech in the United States. Information related to “the national defense” is protected even though no harm to the national security is intended or is likely to be caused through its disclosure. Non-military information with the potential to cause serious damage to the national security is only protected from willful disclosure with the requisite intent or knowledge regarding the potential harm. The unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited. The knowing and willful disclosure of certain classified information is prohibited. The unauthorized communication by anyone of “Restricted Data”, or an attempt or conspiracy to communicate such data, is prohibited. It is prohibited for a person who learns of the identity of a covert agent through a “pattern of activities intended to identify and expose covert agents” to disclose the identity to any individual not authorized access to classified information, with reason to believe that such activities would impair U.S. foreign intelligence efforts.
In addition to the criminal penalties, the use of employment contracts, loss of government employment, monetary penalties, non-disclosure agreements, forfeiture of property, injunctions, revocation of passports, and prior restraint are used to deter such speech.
The Voluntary Tender Act of 1917 gave the Commissioner of Patents the authority to withhold certification from inventions that might harm U.S. national security, and to turn the invention over to the United States government for its own use. It was replaced in 1951 with the Invention Secrecy Act which prevented inventors from publishing inventions or sharing the information. Both attached criminal penalties to subjected inventors. The United States was under a declared state of emergency from 1950–1974, after which peacetime secrecy orders were available.
The government issued between approximately 4,100 to 5,000 orders per year from 1959 to 1974, a peak of 6,193 orders in 1991, and approximately 5,200 per year between from 1991 to 2003. Certain areas of research such as atomic energy and cryptography consistently fall within their gamut. The government has placed secrecy orders on cold fusion, space technology, radar missile systems, and Citizens Band radio voice scramblers, and attempts have been made to extend them to optical-engineering research and vacuum technology.
The Atomic Energy Act of 1954 automatically classifies “all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy”. The government has attempted and failed to prohibit publication of nuclear information, including bomb design, in Scientific American in 1950 and The Progressive in 1979.[circular reference]
Pub.L. 106–54 (text) (pdf) of 1999, a bill focused on phosphate prospecting and compensation owed to the Menominee tribe, added 18 U.S.C. § 842(p) making it an offence “to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction” either intending or knowing that the learner/viewer intends “that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence”. This is in addition to other federal laws preventing the use and dissemination of bombmaking information for criminal purposes. The law was first successfully used against an 18-year-old anarchist in 2003, for distribution of information which has since been republished freely.
Private actors, private property, private companies
Despite the common misconception that the First Amendment prohibits anyone from limiting free speech, the text of the amendment only prohibits the US Congress (and, by extension, those that derive their powers from Congress) from doing so. A major issue in freedom of speech jurisprudence has been whether the First Amendment should be interpreted to merely run against state actors, or whether it can run against private actors as well. Specifically, the issue is whether private landowners should be permitted to use the machinery of government to exclude others from engaging in free speech on their property (which means balancing the speakers’ First Amendment rights against the Takings Clause). The right of freedom of speech within private shopping centers owned by others has been vigorously litigated under both the federal and state Constitutions, most notably in the cases Lloyd Corp. v. Tanner (1972) and Pruneyard Shopping Center v. Robins (1980).
Some observers have decried an erosion of free speech due to widespread use of the Internet and social media, which has allowed large groups of people who disapprove of particular speech have been able to swarm upon certain speakers and harass them with death and rape threats, send SWAT teams by making false reports to police, trigger boycotts of businesses, and in at least one case motivate a shooting. Targets have included a Massachusetts businessman who was seen in a photo apparently supporting Donald Trump, female video game designers and commentators, a diner where an anti-Trump employee made a negative comment to a pro-Trump customer, a public relations executive who tweeted an offensive joke before boarding a plane, and even victims of the 2017 Las Vegas shooting accused by anti-gun-control activists of faking the event.
While personal freedom of speech is usually respected, freedom of press, and mass publishing meet with some restrictions. Some of the recent issues include:
- United States military censoring blogs written by military personnel
- The Federal Communications Commission (FCC) censoring television and radio, citing obscenity, e.g., Howard Stern and Opie and Anthony (though the FCC only has the power to regulate over the air broadcasts and not cable or satellite television or satellite radio)
See also Roth v. United States
- Scientology suppressing criticism, citing freedom of religion, e.g., Keith Henson
- Censoring of WikiLeaks at the Library of Congress
In 2002, the United States was ranked 17th of 167 countries in the annual worldwide Press Freedom Index of Reporters Without Borders. “The poor ranking of the United States (17th) is mainly because of the number of journalists arrested or imprisoned there. Arrests are often because they refuse to reveal their sources in court. Also, since the September 11 attacks, several journalists have been arrested for crossing security lines at some official buildings.” In the 2006 index the United States fell further to 53rd of 168 countries; indeed, “relations between the media and the Bush administration sharply deteriorated” as it became suspicious of journalists who questioned the “War on Terrorism“. The zeal of federal courts which, unlike those in 33 U.S. states, refuse to recognize the media’s right not to reveal its sources, even threatened journalists whose investigations did not pertain to terrorism. The United States improved, moving up to 48th place in 2007, however, and to 20th in 2010. In the following years, the rank again declined, placing the United States 45th in 2020.
Internet speech, online forums
Internet access has changed the game in communication across the world and has opened new opportunities for Americans to express their First Amendment Rights. Internet speech takes place in a digital environment where both speakers and listeners can participate via computers, smart phones, and other electronic devices, being able to network and communicate with anyone at anytime.
Governments have offered many proposals to privately controlled online platforms for regulatory rules that can be enacted to ensure users First Amendment rights are upheld on the internet. If these regulations are infringed upon, the platform has the right to remove content that is copyright material or is offensive. Laws that regulate online harassment, defamation and so on face a delicate balancing act. Most online content, as such, limits risk by suppressing adult speech as well. They must be written narrowly to avoid encroaching on speech protected by the First Amendment while still restricting the undesirable conduct in practice.
The ICCPR which inhibits international laws for human rights enforces a strict clause that ‘[a] ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ Discrimination and hate speech of any kind is not tolerated according to this clause and accounts for online forums. Even with laws in place monitoring online harassment, defamation and so on face a delicate balancing act. They must be written narrowly to avoid encroaching on speech protected by the First Amendment while still restricting the undesirable conduct in practice.
In a 9–0 decision, the Supreme Court extended the full protection of the First Amendment to the Internet in Reno v. ACLU, a decision that struck down portions of the 1996 Communications Decency Act, a law that prohibited “indecent” online communication (that is, non-obscene material protected by the First Amendment). The court’s decision extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet. Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). In 2002, the Court again ruled that any limitations on the internet were unconstitutional in American Civil Liberties Union v. Ashcroft.
In United States v. American Library Association (2003), the Supreme Court ruled that Congress has the authority to require public schools and libraries receiving e-rate discounts to install content-control software as a condition of receiving federal funding. The justices said that any First Amendment concerns were addressed by the provisions in the Children’s Internet Protection Act that permit adults to ask librarians to disable the filters or unblock individual sites.
In Facebook v. Sullivan, a neo-Nazi turned a Charlottesville, V.A. rally deadly when running over an innocent bystander in the crowd of people, later taking to Facebook about his actions with pride. The social media platform took down his profile and any posts related to this incident that portrayed it in any other way besides tragic. Even though this platform is not bound by the First Amendment, the platform has regulations based on preserving free expression but also omitting harmful speech.
Most online forums are censored by the governments as a means of media regulation in the U.S. Because internet networks are unfathomably large and accessible at one’s fingertips, not every piece of online content can be watched and regulated. If governments suddenly impose censorship on previously uncensored information, people become accustomed to acquiring this information through methods of censorship evasion which is deemed unconstitutional and illegal. The more online censorship being enforced, more effort is being made by citizens at bypassing the firewalls, and in China round 18 million Internet users are using online tools to bypass the Great Firewall and access unblocked online content.