The question is then, just what speech is legally and socially prohibited? This is a two-fold question because something that might be legal may be judged differently in the social realm.
The First Amendment to the Constitution deals with five different rights. That amendment reads as follows: “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.”
Therefore, government cannot make a law infringing these rights. Specifically, establishment of a religion, including one’s right to choose which religious facility to attend or to not attend at all. The founders did not want a national religion to interfere with peoples’ lives. Freedom of speech is next. When you read the Federalist Papers this was intended to allow free expression of views and opinions, especially about government and its activities.
Next is freedom of the press. This was intended to eliminate a government-owned media and allow unrestrained oversight of government actions. In other words, the press is supposed to be the watchdog of government. As such, they are granted special privileges. With that comes additional responsibility. Fourth is the right to peaceably assemble. This means that anyone or any group can meet for a protest at a local BLM office, for example, or on the Senate steps. The key is peaceable. If the protest becomes violent, you no longer have First Amendment protection.
Finally is the right to petition the government. This is the right to gather signatures for or against legislation or laws. It also includes the right to lobby for or against such legislation.
OK, back to the original question. What is free speech? Well, it is almost anything. There are a few limitations placed by Supreme Court rulings. These are “well-defined and narrowly limited” as per that court. They include obscenity, defamation, fraud, incitement, true threats, and speech integral to already criminal conduct.
By that definition, there is no hate speech exception to the First Amendment. By the way, free speech extends also to the written word. Hateful ideas, which are subject to the interpretation of those hearing them, are not prohibited legally. Likewise, disparaging a particular race is legally protected speech. On the other hand, someone else is free to counter your statements with the same protections. Socially, you may be condemned (through free speech), but if you don’t care about that you can say what you want.
What can’t you say? The often cited example of yelling “Fire” in a crowded building is one example. That is considered incitement as it may cause bodily harm to panicked people trying to exit. Another exception is hurling personal insults at someone face-to-face that might be likely to start a fight. You may have seen news clips or YouTube videos of protesters making personal threats to others. They just lost their First Amendment protection.
Obscenity and fraud are straightforward. The last one, speech integral to already criminal conduct, is one you may not have heard of. Here is an example. Threatening to kill someone because of their race is not allowed. This is not because of a free speech violation but because it is illegal to commit or incite someone to commit murder. The threat is then speech integral to a criminal act.
Defamation is another prohibited act. You can’t say something that is untrue that damages the reputation of another. This is where libel and slander laws enter the scene. This may be hard to prove legally, as such damage to reputation is difficult to establish. Public figures, like actors and politicians, require an even higher standard of proof.
The bottom line is that, with a few exceptions, you can say whatever you want. Just be prepared for the social, not necessarily legal, consequences of an unpopular message.
Columns are the ideas of the author and do not necessarily reflect the objectivity of The Fallon Post.
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