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The First Amendment: What Exactly Is Protected Speech Anyway?

e-rose-kasweck

by E. Rose Kasweck

Every American knows that they have a constitutionally protected right to freedom of speech.

Many people don’t realize, however, that the First Amendment only protects you from government intervention into speech. It doesn’t mean people can’t disagree with you, or argue with you, or tell you to shut up. They have their right to free speech too, after all. It just means you can’t be arrested or thrown off public property or otherwise interfered with by government actors due to the content of your speech.

Even so, the United States has one of the strongest free speech laws in the world. We value speech (and your right to not have the government tell you what you can and cannot say), higher than just about any other country. And although it seems simple enough to say everyone has a right to say whatever they want to say, it actually a series of complicated balancing acts. Because speech can be harmful. Think hate-speech. Think propaganda. Think dictatorships. Think Nazis.

I think we, as Americans, often operate under the fallacy that other countries- especially other Western countries- value speech the same way we do. And they don’t. Many countries that have had problems related to rampant harmful and manipulative speech in the past have chosen to limit those types of speech in ways that most Americans cannot and would not tolerate.

For example, (back to Nazis, sorry) in Germany, it is illegal to deny the existence of the Holocaust; World War II taught Germany a lesson it has no interest in forgetting anytime soon. As an American, I think denying the Holocaust is stupid and wrong, hurtful to survivors and, frankly, dangerous–  and I will shun you if you’re dumb enough to say something like that to me. But, I can’t call the cops to come arrest you or shut you down or force you to leave the public square. You have the legal right to voice your stupid, dumb opinions.

In America, we rely on the public discourse and open forum of ideas to shut much of that harmful speech down. Sure, you have the right to say your dumb White Supremacist thing, but be prepared to have the vast majority of other voices shout you down and shut you out, with no government involvement necessary.

The next interesting question with regards to the First Amendment is, What IS Speech?

It’s not just words. It can anything that is done to express a meaning. Art is speech. Protest is speech. Wearing a black arm band is speech. Yes, burning the flag is speech. And, as we have learned from Citizens United, spending money (even corporate money) to support or promote a certain cause of speech…is free speech.

Even in the U.S. the balancing act of free speech vs. other harms must be done. So, what isn’t protected speech?

If “speech” has no purpose other than to cause chaos or other harm, it is less protected. If the government has an important purpose for regulating speech that cannot be accomplished in a less restrictive way, certain speech may be limited.

For example, during the Vietnam War, the United States Supreme Court determined that war protestors could be punished for burning their draft cards, even though this was clearly expressive speech done for the purpose of getting an anti-war message across. The Court determined that government’s stated purpose of regulating and identifying members of the selective service outweighed the protestors’ speech rights—though this decision has been widely criticized by legal scholars in its aftermath.

Less controversially, speech is sometimes limited when the purpose is the protection of citizens. We’ve all heard that “you can’t yell ‘fire’ in a crowded theater.” That is just one example of a widely accepted limit on free speech. The possible dangerous condition of creating fear and chaos for no reason, is far outweighed by any “right” you have to cause that dangerous condition with your speech. Similarly, inciting a riot or other violence or other “fighting words” intended only to provoke will not be protected.

And what about defamation? Your right to free speech ends when it harms the life or reputation of another. But only if it is untrue. You can spread your vile opinion about someone or state true and harmful facts about them all day, but your harmful lies about factual matters will not be protected.

This is another balance that we have struck as Americans. And, unlike other countries where public figures (especially politicians) may receive greater legal protection from criticism, in the United States it is the opposite. The more well-known you are (and especially if you have thrust yourself into the public eye intentionally), they more you are thought of as able to weather the tides of public opinion. You have essentially opened yourself up to public criticism and the government isn’t going to get involved and stop that. And again, this another example of how we put our trust in the public forum. If the detractors are outweighed by the supporters, the public has done its job to protect your reputation. And if the detractors win out, well, all those people can’t be wrong, right?

So, there’s a lot, lot, lot that goes on with determining the limits of just one clause of one sentence in one amendment to one document. “Congress shall make no law…abridging the freedom of speech…” is not as simple as looks.

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