Malcolm Rivera
The First Amendment to the U.S. Constitution grants citizens the right to freedom of speech. This means that laws prohibiting verbal harassment are often narrowly defined, as they cannot violate this right. However, the First Amendment does not protect speech that is likely to incite violence, and the United States Supreme Court sets a high bar against government intervention in the case of the First Amendment, only regulating speech that is clearly intimidating, rather than merely offensive.
| Characteristics | Values |
|---|---|
| Freedom of speech | The First Amendment grants the right to freedom of speech, but this does not protect speech that is likely to incite violence or is clearly intimidating |
| Equality | The interest in equality justifies restricting speech that creates a hostile work environment for particular groups |
| Reasonable person | Laws are written according to how a reasonable person is expected to react to a situation, which makes regulating verbal street harassment challenging |
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What You'll Learn
- The First Amendment protects the right to freedom of speech
- The First Amendment does not protect speech that is likely to incite violence
- The First Amendment does not protect speech that is clearly intimidating
- Workplace speech can be constitutionally restricted if it is unwanted one-to-one speech
- Street harassment is challenging to regulate because of the First Amendment
The First Amendment protects the right to freedom of speech
State laws meant to protect citizens from any type of verbal harassment are necessarily narrowly defined because they cannot violate the First Amendment to the U.S. Constitution. Any law that broadly restricts what someone can say is likely to be ruled unconstitutional in court. The United States Supreme Court sets a very high bar against government intervention in the case of the First Amendment, only regulating speech that is clearly intimidating, rather than merely offensive.
However, the First Amendment does not protect speech that is likely to incite violence. This is because "fighting words" do not contribute to democratic discourse and because society has a collective interest in reducing violence.
In the workplace, some harassing speech can be constitutionally restricted. Unwanted "one-to-one" speech—speech that is said to a particular employee because of their race, sex, religion, or national origin—is of lower constitutional value and should be more readily restricted. However, other speech—such as speech between other employees that is overheard by the offended employee, or printed material that communicates to other employees in general—must remain protected.
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The First Amendment does not protect speech that is likely to incite violence
The First Amendment protects citizens' right to freedom of speech, but this does not extend to speech that is likely to incite violence. This is because "fighting words" do not contribute to democratic discourse, and society has a collective interest in reducing violence. In the case of *Brandenburg v. Ohio*, the Supreme Court ruled that the First Amendment does not protect speech that is directed at inciting or producing imminent lawless action and is likely to do so. This was further clarified in *Hess v. Indiana*, where the Court noted that the speech must be directed at a specific person or group, and there must be evidence that the speaker intended to produce imminent disorder.
The First Amendment also does not protect true threats, which are defined as speech conveying a serious intent to commit illegal acts of violence directed at a specific group or person. In addition, the First Amendment does not protect speech that incites people to break the law, including committing acts of violence. This was established in *Feiner v. New York* in 1951, where the Court focused on resulting violence.
While the First Amendment protects freedom of speech, it is not absolute. Speech that is clearly intimidating, rather than merely offensive, can be regulated by the government. This is particularly relevant in the case of workplace harassment, where unwanted "one-to-one" speech because of an employee's race, sex, religion, or national origin can be constitutionally restricted. However, speech between employees that is overheard by another employee or printed material that communicates to employees in general must remain protected.
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The First Amendment does not protect speech that is clearly intimidating
While the First Amendment protects the right to freedom of speech, it does not protect speech that is clearly intimidating. This means that speech that is likely to incite violence or cause a hostile work environment is not protected.
For example, state laws that protect citizens from verbal harassment must be narrowly defined so as not to violate the First Amendment. The United States Supreme Court has set a high bar against government intervention in cases involving the First Amendment, only regulating speech that is clearly intimidating, rather than merely offensive.
Similarly, in the context of workplace harassment, speech that is directed at a particular employee because of their race, sex, religion, or national origin can be constitutionally restricted. This is because such speech is of lower constitutional value and is unlikely to convince or edify the listener.
However, it is important to note that the First Amendment does protect much harmful speech, such as advocacy of violence, intentional infliction of emotional distress, and the revelation of some deeply private information. Additionally, regulations must be applied in a "content-neutral" way that does not target particular kinds of speech.
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Workplace speech can be constitutionally restricted if it is unwanted one-to-one speech
The First Amendment to the U.S. Constitution grants us the right to freedom of speech. However, this does not mean that we have the right to use profanity or insult each other whenever we feel like it. The First Amendment is intended to protect our rights in the context of political discourse and democratic debate.
State laws meant to protect citizens from any type of verbal harassment are necessarily narrowly defined because they cannot violate the First Amendment. Any law that broadly restricts what someone can say is likely to be ruled unconstitutional in court. The United States Supreme Court sets a very high bar against government intervention in the case of the First Amendment, only regulating speech that is clearly intimidating, rather than merely offensive.
However, some harassing workplace speech can indeed be constitutionally restricted. Unwanted "one-to-one" speech—speech that is said to a particular employee because of their race, sex, religion, or national origin—is of lower constitutional value and should be more readily restrictable. When someone is saying things to one listener that the listener clearly doesn't want to hear, the speech is likely only to annoy and offend, not convince or edify.
Other speech—speech between other employees that is overheard by the offended employee, or printed material that communicates to the other employees in general—must remain protected. While this argument stands First Amendment values on their head, when the government is regulating speech, it must generally err on the side of underregulation, not overregulation. The First Amendment protects much harmful speech, such as advocacy of violence, intentional infliction of emotional distress, and the revelation of some deeply private information.
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Street harassment is challenging to regulate because of the First Amendment
The United States Supreme Court sets a very high bar against government intervention in the case of the First Amendment, only regulating speech that is clearly intimidating, rather than merely offensive, which is what most street harassment is. In addition, regulations have to be applied in a “content neutral” way that does not target particular kinds of speech.
The First Amendment is intended to protect our rights in the context of political discourse and democratic debate. It does not mean that we have the right to use profanity or insult each other whenever we feel like it. However, it is challenging to regulate verbal street harassment because our laws are meant to be generally applicable to society and are often written according to how a "reasonable person" is expected to react to a given situation.
While the First Amendment protects much harmful speech, there are some types of speech that are not protected. For example, speech that is likely to incite violence is not protected because "fighting words" do not contribute to democratic discourse and because society has a collective interest in reducing violence. Additionally, unwanted "one-to-one" speech in the workplace, such as speech directed at a particular employee because of their race, sex, religion, or national origin, can be constitutionally restricted.
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Frequently asked questions
The First Amendment protects your right to freedom of speech. This means that laws cannot broadly restrict what someone can say. However, the First Amendment does not protect speech that is likely to incite violence.
Unwanted "one-to-one" speech in the workplace, said to a particular employee because of their race, sex, religion, or national origin, is of lower constitutional value and should be more readily restricted.
It is difficult to prohibit catcalls and other types of verbal street harassment as the First Amendment is intended to protect our rights in the context of political discourse and democratic debate. However, the First Amendment does not protect the use of profanity or insults.
