Source: Google Images/Cartoon Movement (cartoonmovement.com)

In light of what’s been happening on Twitter and in the political arena, I thought it might be a good time to clarify what ‘free speech’ actually is – in case you didn’t already know. The internet and social media have become a haven for every lunatic with a not-so-informed opinion; violence, racism and various forms of hatred now clog up the digital highways. Hardly a day goes by when I’m not cleaning up, blocking or getting rid of unwanted ads and other attempts at sucking me in to a digital vortex of Never Never Land.

Ongoing attempts at regulation and censorship often butt up against protectors of free speech. I’m usually in the free speech camp but these days the negative and often violent rhetoric makes it difficult to defend our First Amendment in all its glory (and unintended or unseen disadvantages).

In Elonis v. United States, heard by the U.S. Supreme Court, is one such case. (If interested, you can read about it here.) The crux of it came down to which forms of expression are or are not protected by our First Amendment right to free speech. So many writers now live online via Goodreads, FB, Twitter, IG, and numerous other social media accounts because it’s how we stay in touch, learn from other writers, and connect with writers we may never even meet. Which makes it all that much more important to understand and acknowledge that ‘free speech’ is not as free as many believe.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment to the U.S. Bill of Rights

According to an article from Sidebar Saturdays author Matt Knight, “The right to free speech protects individuals from government censorship, including all government agencies and officials, whether federal, state, local, legislative, executive, or judicial. The government cannot fine, imprison, or slap you with civil liability for what you say except under certain circumstances.” 

In Reno v. ACLU, the Supreme Court extended free speech to the internet. But the constitutional right to free speech only restrains government not the private sector. Herein lies the rub: Private companies, including all the social media companies (Instagram, Twitter, etc.) are free to regulate speech. *deep sigh*

Granted, people are more disinhibited online when it comes to spewing whatever comes to mind each and every moment of the day (don’t these people have jobs? Families?). I’ve got news for ya – there are limits to our constitutionally-provided free speech and the following is a good explanation of those limits.

From Sidebar Saturdays, When Free Speech Meets Social Media (12/3/22):

Content-Related Restrictions — Most content-related speech is protected from government regulation, even vulgarity, hate speech, and blasphemy. But the government can suppress certain ideas and messages from a few narrow categories such as:

• Obscenity – Most forms of obscenity fall within the freedom of speech. But if the obscenity reaches a high-test threshold, like hard-core, sexually explicit pornography, the speech is not protected. Companies like Facebook and Twitter also regulate outside boundaries like this on their platforms too.
• Fighting words – The government can prohibit speech used to inflame another (like a personal insult) that is likely to lead to an immediate fight. This would include speech meant to incite violence and hatred, and encourage others to commit illegal acts. This would not include political statements that offend others and provoke them to violence — like anti-abortion protesters that provoke violence from their targets or church members yelling obscenities that provoked LGBT people to attack. It also doesn’t include hate speech, which means contemptible, bigoted speech is usually protected.
• Defamation – False statements that damage a person’s reputation are not protected.
• Child pornography – Speech that depicts a minor performing sexual acts or showing their privates is not protected free speech.
• Crimes involving speech – Any speech used to commit a crime is not protected, e.g. perjury, blackmail, and harassment.
• Incitement – Speech that is directed to incite or produce imminent lawless action, i.e. encourages others to engage in illegal activity, is not protected free speech. Incitement has been extended to cover repeatedly encouraging someone to commit suicide.
• True threats – Threats to commit a crime are not protected free speech, but there must be mental intent to commit the crime. [My addition: this is called mens rea and one’s intent can be very difficult to prove.]
• Copyrights and trademarks – Infringement of someone else’s copyright or trademark-protected content will not withstand a free speech defense.
• Commercial speech – Most advertising is protected free speech, but things like false advertising are not and can be restricted by the government.

Content-Neutral Restrictions — The government can suppress speech when the restriction is done without regard to the content or message of the speech, e.g. regulating noise [law enforcement/disturbing the peace], protesters blocking traffic, or the use of obstructive signs.

Special Government Relationships — The government can suppress speech when a special relationship with the government exists. For example, speech by government employees can be restricted if it keeps the employee from doing their job (a police officer making racist statements, a public school teacher encouraging students to experiment with drugs or a CIA employee who releases classified information). The government as head of the military and prisons can regulate the speech of military officers and inmates.

So that’s your free-but-has-limits speech in a nutshell. Now go forth and protest freely, associate freely, believe in whatever ‘god’ you choose, but remember this: you can think whatever you want but be careful with your words. Remember, they have power, just not as much freedom as you once thought.

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