Why Freedom of Speech is Not As Free As You Think

Allison Gaines

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When a business offers your favorite product for free, you might want to read the tagline. Notice seasoned advertisers make sure the word “free” looks large and in charge. Once the excitement fades, we can see that freedom comes with a catch. Some of these products are “free with the purchase of a large soda” or “free for loyal customers.” Believe it or not, freedom of speech is no different. While Americans think they can say whatever they want, freedom of speech is not as free as you may think.Instead of focusing on the fancy flashing “free” sign, we should assess the limits.

By all means, talk with your friends, family, colleagues, and community members about an assortment of topics. But don’t be surprised if some things cross an immutable line. In America, free speech comes with a tagline, especially speech that infringes on others' freedoms.

A lot of people have commented that people have a constitutionally protected right to say what they want or express anything through their actions. This is untrue, there are many restrictions on speech and expressions.(Grimes, 2019)

The first amendment does not protect slanderous or libelous statements. If an American makes a false statement, defaming someone, they may find themselves in the midst of a lawsuit. If they lose their case, the judge could slap them with a hefty fine. Also, free speech does not protect someone’s ability to copyright infringement or sharing tricks of the trade. Americans cannot steal intellectual property and then use freedom of speech as a viable defense — it doesn’t work like that. Food distributors have the space to describe their products, but they cannot write misleading food labels. The general public’s safety supersedes their right to free speech in cases of this nature.

According to David L. Hudson Jr. from the First Amendment Center, the first amendment does not protect someone’s right to share obscenity or child pornography. Also, the first amendment does not protect against any imminent, lawless action.

So, that means if you Pied-Pipered your audience, leading them to lynch someone or “storm-the-capital,” the first amendment won’t save you. In America, we do not have the right to hurt other people. Lastly, Americans do not have the right to perjure themselves or violate someone else’s right to privacy. Feel free to tell lies in your everyday life. But if you tell a lie under oath, prosecutors can charge you with perjury — that’s a felony. The penalty for such a crime typically includes jail time and fines. So much for free speech. It’s more like free-ish speech.

Nobody has a perfect right to say or express themselves in any manner they wish. Most speech and expressions are protected, but not all. (Grimes, 2019)

The Supreme Court sets limits

While the first amendment prohibits Congress from making any law abridging our freedom of speech, the Supreme Court plays a continued role in interpreting the law. Ratified in December of 1791, The Bill of Rights guarantees civil liberties to American citizens. Here is the first amendment as it stands —

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. (The Constitution, 1791)

People have the right to speak their peace, even if their rhetoric is offensive. Unlike some nations, the United States government permits dissent. We can gather peacefully, protest, and express grievances. The first amendment protects my right as a writer to express myself, even when those views counter the current administration’s ideology. Freedom of speech also protects racist, sexist rhetoric. For example, a white man can drop the “n-bomb.”

According to US.Courts.gov, Americans do not have the right to:

▶︎To incite actions that would harm others (e.g.,’ [S]hout[ing] ‘fire’ in a crowded theater.) Schenck v. the United States, 259) U.S. 47 (1919).
▶︎To make or distribute obscene materials — Roth v. the United States, 354 U.S. 476 (1957).
▶︎To burn draft cards as an anti-war protest. The United States v. O’Brien, 391 U.S., 367 (1968).
▶︎To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
▶︎Of students to make an obscene speech at a school-sponsored event. Bethel School District #43. v. Fraser, 478 U.S. 675 (1986)
▶︎Of students to advocate illegal drug use at a school-sponsored event. Morse v. Fredrick, _ U.S. _ (2007), (United States Courts).

According to precedents set by the court, Americans cannot say whatever they want. One of the most famous examples refers to the idea that screaming “fire” in a crowded theater should not be protected speech. However, hold on — it’s a rocky road. The Supreme Court overturned Schenck v. the United States with Brandenburg v. Ohio (1969).

Understanding free speech is difficult because the courts’ decisions shape the interpretation of this freedom. People can say whatever they want, but the courts show that this is not without consequence.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.(Walker, 2009)

That means someone can talk about breaking the law or even advocate for lawlessness. However, if you use speech that incites impending law-breaking, the courts will not have your back — at least as it stands today.The Supreme Court could easily change their collective mind, and it might just happen in your case. So, while Americans love to say they have the freedom to say what they want, this is nothing more than a misinterpretation.

According to precedent, Americans cannot use their speech to incite harm, distribute obscene materials, or burn draft cards. Students have some additional limits on their speech. For example, they cannot use profane language at school events or advocate for the use of illegal drugs. No matter how you slice it, freedom of speech reflects an ideology of openness rather than absolute protection.

When it comes to using racist rhetoric, a white person has the right to say all types of obscenities as long as that language does not incite immediate harm. America’s laws do not clearly define hate speech, which refers to any address which aims to humiliate, vilify, and incite hatred. People may have the right to use hateful rhetoric, but if it incites violence instead of just hatred, they will run into problems with the law.

In a way, Donald Trump’s second impeachment case (while not a free speech case) will serve as a test. After all, Mitch McConnell stated Trump “provoked the capital riot.” And, Liz Cheney said that “he lit the flame.” Americans will soon see whether or not laws that govern those at the bottom of the social hierarchy apply to those at the top.

I wonder if Congresspeople on both sides of the aisle will admonish a President for screaming, “The election was rigged” in a crowded, political theater. Whether you butter your bread right side up or down, you will find that the first amendment cannot protect all speech. Ultimately, freedoms depend on precedent determined by Supreme Court decisions.

Freedom of speech has its limits.

While Americans live in a nation that promises freedom of speech in the first amendment, we can find many exceptions in which the courts don’t protect speech. In my opinion, our freedom of speech is more akin to a privilege. If a mother gives their child a cell phone, she may take it away if they use explicit language or discuss taboo subjects. Yes, your mother loves you, but she will not let you do whatever you want. Perhaps that’s the government’s intent — to protect rights but within reason.

Perhaps Americans never had the freedom to say anything they wanted. It’s probably much more accurate to say we all have the freedom to speak within reason. If you are wondering about whose reasoning determines that, you will have to check with members of the Supreme Court. After all, they are the ones who create a precedent. Even if they give you an answer, they cannot control what the next generation’s court will say. So, feel free to speak freely, but don’t expect society or the courts to protect your first amendment rights in all circumstances. Freedom of speech is not as straightforward as you may think because our community periodically changes who defines free-speech.

References:

Grimes, M. (2019, August 01). Free speech is not an unlimited right. Retrieved February 04, 2021, from https://www.dailypress.com/virginiagazette/opinion/va-vg-edit-letters-grimes-0912-story.html

King, M. L., Jr. (1963, August 28). I Have a Dream. Retrieved January 13, 2021, from https://www.americanrhetoric.com/speeches/mlkihaveadream.htm

Rosen, J. (2020, July 09). What Germany can teach America about confronting the past. Retrieved February 02, 2021, from https://www.freep.com/story/opinion/contributors/2020/07/08/history-germany-nazis-america-confederacy/5389066002/

The Constitution (Ed.). (1791, December 15). The Constitution. Retrieved February 01, 2021, from https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/

United States Courts (Ed.). (n.d.). What Does Free Speech Mean? Retrieved February 01, 2021, from https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does

Walker, J. (2009). Brandenburg v. Ohio. Retrieved February 04, 2021, from https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio

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