Sorting out what freedom of speech is, and isn’t

Wednesday, March 9, 2011

The First Amendment’s most famous freedom is speech.

Freedom of speech ensures that we can criticize government officials, advocate different positions, engage in artistic expression and voice an array of concerns. Global icon Oprah Winfrey said it best: “Free speech not only lives, it rocks!”

But, there is much confusion over freedom of speech, as articulated by the First Amendment: “Congress shall make no law … abridging the freedom of speech.” Here are some fundamental free-speech principles.

The First Amendment:

Prohibits viewpoint discrimination

A most fundamental free-speech principle is that the government cannot favor one viewpoint over another. When a law, regulation or policy treats speakers differently on the basis of content and especially viewpoint, that measure is suspect. Supreme Court Justice Thurgood Marshall expressed this idea well in Chicago Police Department v. Mosley (1972): “If the First Amendment means anything, it means that the government may not prohibit expression because of its message, ideas, subject matter or content.”

Protects more than just verbal expression

When we think of speech, we may think only of the spoken or written word. But, the First Amendment also protects many types of symbolic speech and expressive conduct. The Supreme Court in Tinker v. Des Moines Independent Community School Dist. (1969) ruled that public school students had a free-speech right to wear black peace armbands to school. The armbands were “akin to free speech” and conveyed an anti-war viewpoint. More controversially, the Court has ruled that burning the American flag as a form of political protest is a form of free speech.

Freedom of speech forms the lifeblood of our constitutional democracy. It separates us from totalitarian governments and other places where individual freedoms are not respected.

Does not protect all forms of speech

Even though the First Amendment represents our blueprint for personal freedom, its protection is not unlimited. Some narrow categories of speech do not deserve protection (or deserve it). Supreme Court Justice Oliver Wendell Holmes expressed this concept with his “shouting fire” metaphor in United States v. Schenck (1919): “The most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic.” Obscenity, child pornography, true threats and incitement to imminent lawless action are a few of these proscribable categories.

Protects much offensive and disagreeable speech

People support freedom of speech in theory. But in reality many of us favor the censoring of expression we dislike. We may have a censor’s impulse — Free Speech for Me, But Not For Thee — to quote the title of Nat Hentoff’s marvelous book. When the government acts in such a manner, it often violates our first freedom because the First Amendment protects much offensive, obnoxious and repugnant speech. Former U.S. Supreme Court Justice William Brennan wrote in the flag-burning decision Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”

Prohibits government from censoring speech

People often think that the First Amendment prevents anyone or anything from punishing them for their speech. This is not the case. The First Amendment prohibits the government — not private actors — from punishing you for your speech. A private company can censor artistic expression or a private employer often can discipline its employees for speech without violating the First Amendment.