Omar Bennett
Freedom of speech is a fundamental human right, recognised by international human rights law and the Universal Declaration of Human Rights. However, this right is not absolute and is subject to certain limitations and restrictions, which vary across different countries and legal jurisdictions. In the United States, the First Amendment protects free speech, but there are several categories of speech that are not protected and may be restricted, including obscenity, fraud, child pornography, defamation, incitement, and true threats. The interpretation of these limitations is often complex and subject to ongoing legal debate and review.
| Characteristics | Values |
|---|---|
| Categories of speech that are given lesser or no protection by the First Amendment | Obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech such as advertising |
| Defamation | Libel (written), slander (spoken), defamation that causes harm to reputation |
| Hate speech | Not a general exception to First Amendment protection; however, social media companies are free to remove any content deemed hate speech |
| Broadcasting rights | Broadcasting rights to air television and radio shows are not an infringement of free speech rights |
| Speech on government property | The government has the power to control speech on its property; government employees may be fired for saying things that interfere with the employer's efficiency |
| Speech in educational institutions | Students at public schools have the right to First Amendment free speech, but their rights may not be as extensive as the rights of adults; for example, in a 1988 Supreme Court case, the court ruled that students' free speech rights weren't violated when school administrators removed articles from a student newspaper that dealt with controversial topics |
| Speech in the workplace | In a private workplace, employees generally have no right to free speech and can be disciplined for what they say; however, employers may still run afoul of other laws, such as discrimination laws or labor laws |
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What You'll Learn
Defamation, libel, slander, and false statements
The interpretation and application of the First Amendment have significantly influenced societal norms and values. While the First Amendment protects public discourse, it also acknowledges addressing the harms caused by defamation. Defamation, in this context, includes libel (written statements) and slander (spoken statements). It represents a significant challenge within the realm of free speech.
Defamation occurs when a false statement of fact about someone else harms that person's reputation. It is not protected by the First Amendment and can result in criminal and civil liability. However, if the defendant can prove that their statement was true, the defamation case ends, as truth is always a defence to a claim of defamation.
The distinction between fact and opinion is crucial, as the First Amendment protects expressions of opinion. However, the legal system provides redress for those harmed by false assertions of fact. Defamation claims require plaintiffs to demonstrate that the statements are objectively false, safeguarding against unwarranted infringement on free speech rights.
Public officials and figures face additional challenges in defamation claims. They must prove that statements were made with "actual malice", indicating either knowledge of the statement's falsity or reckless disregard for the truth. This distinction aims to promote robust debate on matters of public concern, which are essential to a functioning democracy.
The Supreme Court has also ruled on the distinction between protected and unprotected speech. For example, in Chaplinsky v. New Hampshire (1942), the Court held that "fighting words" are unprotected speech, defined as personally abusive language likely to provoke a violent reaction. Additionally, the government may restrict the time, place, or manner of speech, provided the restrictions are content-neutral and leave alternative avenues for expression.
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Hate speech and incitement to violence
Hate speech, while not a general exception to First Amendment protection, can be restricted when it directly incites imminent criminal activity or consists of specific threats of violence against a person or group. Hate speech is any form of expression intended to vilify, humiliate, or incite hatred against a group or class of persons based on race, religion, skin colour, sexual identity, gender identity, ethnicity, disability, or national origin. While there is no legal definition of "hate speech" under US law, it is considered a menace to democratic values, social stability, and peace. Hate speech can lead to serious human rights violations, including armed conflict, atrocity crimes, terrorism, and violence against women.
Incitement to violence, on the other hand, refers to speech that tends to incite an immediate breach of the peace by provoking a fight or a violent reaction. According to the Supreme Court, speech that constitutes “fighting words" and is personally abusive is not protected by the First Amendment. Additionally, true threats of violence directed at a person or group with the intent to place them at risk of bodily harm or death are generally unprotected. Social media companies have the right to remove any content deemed hate speech or incitement to violence, even though social media platforms are public forums.
It is important to distinguish between hate speech and incitement to violence and protected speech that may be offensive or controversial. The First Amendment protects robust debate on matters of public concern, even when it becomes distasteful or offensive. Students in schools and universities still have First Amendment rights, but these may be limited to maintain a safe and inclusive educational environment.
While hate speech and incitement to violence are not constitutionally protected, addressing them requires a careful balance between preventing harm and preserving freedom of expression. The UN Rabat Plan of Action provides guidance to states on this distinction, emphasizing the need for education and promoting counter-messages to address the spectrum of hateful expression.
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Intellectual property and copyright
The First Amendment protects free speech while allowing limitations on certain categories of speech. These categories include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, true threats, false statements of fact, and commercial speech.
One of the categories of speech that may be restricted is speech that violates intellectual property law. Intellectual property laws protect patents, copyrights, and trademarks. These laws can both advance free speech and pose significant threats to civil liberties. For example, copyright laws can provide a financial incentive for creators by preventing their work from being copied and sold without permission. This fosters creativity and encourages speech. On the other hand, overly aggressive enforcement of copyright laws can block people from speaking freely.
The American Civil Liberties Union (ACLU) has been working to find a balance between protecting the incentive to create and invent, and preserving free speech. They have defended free speech in the face of copyright laws restricting technology with lawful, non-infringing uses. For example, in Association for Molecular Pathology v. Myriad Genetics, the ACLU brought a successful case before the U.S. Supreme Court that invalidated patents on human genes. The ACLU has also worked to preserve and expand the "fair use" doctrine, which permits the use of copyrighted material in journalism, teaching, satire, and other important areas.
The Supreme Court has upheld intellectual property rights and copyright law against First Amendment free speech challenges. In Harper & Row v. Nation Enterprises (1985), the Court defended copyright law. Additionally, broadcasting rights to air television and radio shows are not an infringement of free speech rights, and the Court has upheld these restrictions as an incentive for artists in the "speech marketplace".
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Student speech and school activities
Students in public schools do not lose their First Amendment rights when they enter school premises. However, the First Amendment right to free speech in schools is not absolute and is subject to certain limitations. The Supreme Court has developed specific standards for evaluating the constitutionality of restrictions on student speech in public schools.
The First Amendment protects students' rights to free speech, which includes the right to protest, speak out, wear expressive clothing, and engage in symbolic speech. Students can also exercise their free speech rights through the use of bulletin boards, the distribution of printed materials or petitions, and the wearing of buttons, badges, and other insignia. However, these rights are not unlimited and must be balanced with the objectives of the public education system and the rights of others.
Schools can restrict student speech that is profane, vulgar, or offensive, such as in the case of Bethel School District v. Fraser, where a student was disciplined for a speech full of sexual innuendos. Schools can also censor student speech in school publications like newspapers and yearbooks, as seen in Hazelwood School District v. Kuhlmeier. Additionally, schools may prohibit student speech that advocates illegal drug use, as in Morse v. Frederick, where a student displayed a banner promoting drug use.
Furthermore, schools can restrict clothing or speech that will cause a substantial disruption in school. This was demonstrated in Tinker v. Des Moines Independent Community School District, where the Supreme Court held that students' black armbands protesting the Vietnam War were protected under the First Amendment as they did not disrupt the school environment. However, schools may discipline students for off-campus speech that constitutes severe bullying, harassment, or threats targeting individuals, as in the case of a Northern California district court ruling.
While students have free speech rights, schools also have the power to regulate and control student conduct within constitutional boundaries. These boundaries are embedded in laws that give public school students broad free speech rights while allowing schools to maintain a safe and secure learning environment.
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Government employees and government property
The First Amendment to the U.S. Constitution protects the right to freedom of speech. However, the Supreme Court has held that government employees only have free speech rights when they speak as private citizens, and not as public employees. This is known as the Garcetti rule.
The distinction between private and public speech can be complex. Generally, speech outside the agency is considered private citizen speech, and this is protected by the First Amendment. For example, in Davis v. McKinney, the Fifth Circuit held that when a public employee raises job concerns with persons outside the workplace, these external communications are typically not made as an employee but as a citizen. Similarly, in Anderson v. Valdez, a staff attorney sent a letter to the state supreme court and filed a disciplinary complaint describing what he believed to be malfeasance by one of his bosses. The Court held that such complaints to people outside the employer are typically protected speech. However, in a later case, the Fifth Circuit agreed with the government's claim that the attorney had promised, as part of his job duties, to report misconduct to the state commission. Therefore, the report was not protected speech.
The Supreme Court has also recognised free speech rights in public spaces, including government property. However, public forums can have limits on the type of "speech" allowed, and the Court has emphasised time and place considerations. For example, in Food Employees Union v. Logan Valley Plaza, the Court held that picketing of a store located in a shopping centre by a union was constitutionally protected.
In terms of government employees, the Court has balanced governmental interest and employee rights in cases such as Arnett v. Kennedy, where it sustained the constitutionality of a federal law authorising the removal or suspension without pay of an employee for speech that would promote the efficiency of the service. The Court has also considered the right to freedom of speech in relation to loyalty-security standards for government employees. In cases such as Whitehill v. Elkins, an oath was voided because it may have included innocent membership in an organisation that advocated the illegal overthrow of the government.
In conclusion, while government employees have free speech rights, these rights may be limited when they are speaking as public employees or when their speech affects the efficiency of the workplace. The courts have considered various factors in determining whether specific speech is protected, including the content, context, and intent of the speech.
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Frequently asked questions
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction.
The right to free speech is not absolute and is subject to certain restrictions. These restrictions may include:
- Obscenity
- Defamation
- Fraud
- Child pornography
- Fighting words
- True threats
- Unlawful conduct
Some examples of free speech limitations in the United States include:
- The Supreme Court upheld a ban on broadcasting vulgar words in FCC v. Pacifica Foundation (1978).
- The Supreme Court ruled that students' free speech rights were not violated when school administrators removed controversial articles from a student newspaper in 1988.
- Social media companies can remove content deemed hate speech.
- In a private workplace, an employer can discipline employees for what they say.
Internationally, the limitations on free speech vary by country and are culturally and politically relative. For example, many European countries outlaw speech that might be interpreted as Holocaust denial. In Russia, the harm and offense principles have been used to justify the LGBT propaganda law restricting speech on LGBT issues.
