The First Amendment covers five things that the Congress cannot do.
“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.”
Let’s look at the clause, “or abridging the freedom of speech;”
In 1789, James Madison introduced the amendment covering freedom of speech with these words: ”The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments;”
After the House and Senate had their chance to rewrite it in their own ways, the version that came out of the conference committee about freedom of speech was “or abridging the freedom of speech.”
Advances in technology complicated the concept of speech. At the time of ratification, obviously, there was no telegraph, telephone, radio, television, internet, etc.
And what constitutes “freedom of speech” and what constitutes “freedom of expression” brings us into a rather blurry world. The difference between the two might be defined as follows:
- Freedom of Speech is a statements or ideas, well supported by logic, rationality etc. at least as per the speakers thinking.
- Freedom of Expression is an expression which may or may not be supported by logic, rationality, and be just an expression of emotions, which can be curtailed and punished and can be banned too.
“Freedom of speech” does NOT mean that you can say just anything and get away with it. There are limitations that have been litigated over the years and include the following:
Freedom of speech INCLUDES the right:
- Not to speak (specifically, the right not to salute the flag).West Virginia Board of Education v. Barnette, (1943).
- Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).Tinker v. Des Moines, (1969).
- To use certain offensive words and phrases to convey political messages. Cohen v. California, (1971).
- To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo, (1976).
- To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council, (1976); Bates v. State Bar of Arizona, (1977).
- To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson, (1989); United States v. Eichman, (1990).
Freedom of speech does not DOS NOT INCLUDE THE RIGHT
- To harm others (e.g., “Shouting ‘fire’ in a crowded theater.”). Schenck v. United States, (1919).
- To make or distribute obscene materials. Roth v. United States, (1957).
- To burn draft cards as an anti-war protest. United States v. O’Brien, (1968).
- To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, (1988).
- Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser, (1986).
- Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, (2007).
Freedom of speech doesn’t just apply to the words that come out of your mouth. It applies to many different forms of expressions as presented by the Freedom Forum Institute (Click HERE to go to their site.) These expressions (quoted from the site) include:
- Written works
- Online posts
- Movies and television
- Theater and dance
- Video Games
- Political yard signs
- Handing out flyers
- Symbolic speech, like burning a flag or wearing a black armband
- The right not to speak, such as a refusal to say the pledge of allegiance
- Donations of money to political campaigns
- (At least one federal appeals court has found that liking something on Facebook qualifies as speech. Some types of computer code may be considered speech, but the limits of that is still an open question.)
The Freedom Forum Institute (Click HERE to go to their site.) provides a simple guideline (quoted here):
IF IT IS SPEECH—IS THE GOVERNMENT CENSORING OR PUNISHING IT?
The First Amendment only protects your speech from government censorship. It applies to federal, state, and local government actors. This is a broad category that includes not only lawmakers and elected officials, but also public schools and universities, courts, and police officers. It does not include private citizens, businesses, and organizations. This means that:
IF THE GOVERNMENT IS CENSORING YOUR SPEECH–DOES YOUR SPEECH FALL INTO AN UNPROTECTED CATEGORY?
- A private school can suspend students for criticizing a school policy;
- A private business can fire an employee for expressing political views on the job; and
- A private media company can refuse to publish or broadcast opinions with which it disagrees
There are several categories of speech that are not protected by the First Amendment at all.
- True threats
- Child pornography
- Fighting words
- Solicitations to commit crimes
- Incitement of imminent lawless action
IF YOUR SPEECH DOES NOT FALL INTO ONE OF THE UNPROTECTED CATEGORIES–DO YOU FALL INTO A SPECIAL CATEGORY?
The government generally has greater power to dictate speech policies when it acts in certain capacities, such as educator, employer or jailer.
- K-12 public school student
- Government employee
- State or federal prisoner
In closing . . . note that “freedom of speech” does not require that what is spoken needs to be TRUE! Lies are OK.