Americans: What Does Freedom Of Speech Mean?

[OlderAndWiser]

The First Amendment to the US Constitution says, in part, that "Congress shall make no law . . . abridging freedom of speech." This is known as the Free Speech Clause. This clause contains the most frequently invoked right for Americans but it also contains the most commonly misunderstood right. The purpose of this myTake is to review the meaning of this right and to also review what the clause does not mean.

Read the clause carefully. It says that Congress cannot make any law which limits our right to free speech. It is a restriction of government action; it does not proscribe private action. An employer may limit your right to free speech while you are being compensated for your time. A private organization may lawfully forbid its members from publicly discussing the affairs of the organization. Two parties may enter a contractual agreement which limits the right of one or both to discuss a particular subject. (These rights to restrict otherwise free speech are subject to some limitations; e.g., an employer may not forbid you from calling the police to report a crime.) While the First Amendment prevents "Congress" from making laws which restrict free speech, every state has a state constitution which places similar restrictions on state and local governments.

The right to free speech protects the expression of opinions but not misstatements of facts. If you state something as a fact concerning another person and the statement is not true, you may be held responsible for slander or libel. Sometimes, the line between opinions and facts can be very indistinct. If I tell others that I think a particular girl is a whore, that is an opinion and she has no legal recourse against me. If I say that she has had sex with 23 different guys and that is not true, I may be held liable if my statement damages her reputation.

Free speech also protects certain behavior which is usually intended as an expression of beliefs. The US Supreme Court has specifically said that the right to free speech means that you have the right:

not to speak (specifically, the right not to salute the flag);
to wear black armbands to school to protest a war;
to use certain offensive words and phrases to convey political messages;
to contribute money (under certain circumstances) to political campaigns;
to advertise commercial products and professional services (with some restrictions); and
to engage in symbolic speech, (e.g., burning the flag in protest).

Even these rights are subject to some restrictions. You have the right to use offensive words to convey a political message ("fuck the war!") in a forum where political ideas are traditionally expressed but you do not have the right to stand up in 11th grade English to say "fuck the war!"

The right to free speech is intended to protect our right to debate political ideas in places where political ideas are traditionally debated. As your conduct moves away from that scenario, the protection of the Free Speech Clause is reduced. The US Supreme Court has has specifically ruled that you do NOT have the right

to incite actions that would harm others (e.g., shouting ‘fire’ in a crowded theater);
to make or distribute obscene materials;
to burn draft cards as an anti-war protest;
to print articles in a school newspaper over the objections of the school administration;
to make an obscene speech at a school-sponsored event; or
to advocate illegal drug use at a school-sponsored event.

When speech is protected, you may stand and say whatever you want. The government may not, in advance, restrict your right to speak nor may it penalize you for expressing your opinions. However, the public is free to express its opinions about whatever you said. If your speech is unpopular, you may express your ideas but the government will not protect you from the consequences of expressing unpopular views.

Popular speech never needs to be protected. Saying that you love this country and saluting the flag while we are in the midst of war needs no protection; such behaviors always receive encouragement and support. It is always unpopular speech which needs protection . . . and the protection afforded to political speech is never decreased because some individuals might find the speech offensive. Your right to speak in favor of Hillary Clinton or Bernie Sanders receive no more or less protection than the right of someone else to speak in favor of Donald Trump or Ted Cruz. Your right to speak in favor of civil rights receives no more protection that the KKK's right to express its polical beliefs. You have the right to express your opinions on G@G but other users have an equal right to respond and express their disapproval of your opinion; your freedom of speech is not greater than their freedom of speech.

The right to free speech does not always results in actions which are favorably received by the majority, but free speech is a large part of what keeps us free.

[ObscuredBeyond]

The freedom of speech clause, to be understood properly, must be understood in its proper historical context:

Before the nation formally existed, there were the colonies. Each city had leaders of a particular denomination, and each denomination wanted a city unto itself. Which meant that religious denominations could not discuss things freely without trouble.

The peaceful coexistence that was figured out in Germany amongst Luther, Zwingli, and Calvin was lost on America's Anglo-Saxon founders, as England had a very different history. On top of that, where was still the Church of England - now more about English politics than about anything accurate to any reliable translation of the Bible. And it wanted to exert its will.

English tradition also had the Magna Carta. Yet, there was some debate about the extent to which its individual rights applied to colonists who didn't live on the main land.

Also, there was the one Queen that said to the colonies at one point: "You're on your own." Many colonists, economically if not politically, took that as gospel truth.

Then along came George III. Wanted no question or dissent about his policies, regardless the laws of constitutional monarchy. Wanted defenseless colonies so he could impose any measures - however unfair - to rob wholesale whomever he deemed fit to pay for his own extravagances and war debts against France.

Who wanted no assembly, peaceful or otherwise, to even to discuss negative ramifications of his arbitrary policies. Who insisted he knew best and nobody needed to have a say in the matter but him. Invented new taxes out of thin air. Hidden or otherwise. Quartered troops in peacetime. Objection of any kind was treason.

And then, he threatened to take away from the residents in the territories that would become Ohio their religious establishments, and hand their lands to the Jesuits, as a huge middle finger to religious self-determinism. For many colonists, that was the last straw. (To be continued...)

[ObscuredBeyond]

Pt. 2. To many colonists, the Jesuits were no better than the Templars and Teutonics - a parasitic Baal / homosexual death cult hidden within the church masquerading itself as part of the Catholic church. Think Captain America 2: Hydra within SHIELD. "A beautiful parasite."

Quakers to Lutherans to Presbyterians alike wanted nothing to do with this middle finger from the king. And while they may have taken offense to Samuel Adam's outlandish antics at first, they soon took arms to defend their faiths and freedoms of assembly - and lands - from an Eminent Domain king that respected none of it.

The First and Second Amendments exist in their exact order for a reason: Unless they exist together, neither one can defend itself nor the other from tyrants and the faithless and/or weak-minded/weak-hearted.

To understand the intent further, ignore the Freemasons and read Patrick Henry's words and intentions in other writings of his.

[OlderAndWiser]

Yes, the historical context for the Constitution and Bill of Rights is extremely important. If Americans are to understand their rights, they must understand their historical heritage.

[ObscuredBeyond]

Indeed. And that's the scary part. Revisionists like Zinn, as men like D'Souza have desperately tried to point out, have been working feverishly ever since Alinsky slithered the Earth to rewrite or completely erase from Americans any real grasp or comprehension behind their heritage or the reasons why any of it happened or needed to. Replacing it with a cheap, manufactured myth that demonizes Anglo culture and produces an anti-Anglo, anti-Christian, Marxist framework engineered around the Prussian education model to create obedient soldiers of voters to keep an elite in power in perpetuity.

And because so many know a hundred sex positions and nothing about heritage, ancient abuses the constitution was supposed to eradicate are alive and well in public policy today. With violators in both major parties, but voters playing Red-Tie / Blue-Tie instead of turning to principle. Because Red-Tie / Blue-Tie doesn't require true conviction.

[Anonymous]

Thank you for posting this. I've had a few 'discussions' with people on GaG about their so called rights when it comes to social media sites like Gag. They're always screaming about free speech this and that, but that doesn't mean there are absolutely no limits whatsoever. For the reasons pointed out... companies, organizations, social media sites, have a right to protect themselves, their product, and their consumers, and one way they do this is by not giving free reign for its customers to do or say whatever they want however they want to do it. This is one of the million reasons people should read contracts and usage agreements, because odds are they have already signed off on exactly whatever it is they are now claiming they had no knowledge of or weren't aware a company or site could do or restrict. But honestly, it's like look around the globe. If you want to know what real censorship of religion, political thought, artistic thought, or ideas looks like, and why as an American, you should damn sure count yourself lucky... well...

[OlderAndWiser]

Amen!

[PT1911]

"Free speech is the speech we hate."

Also, the full amendment, per my copy of the Constitution, as every good American should own one and read it for themselves. Not to mention, schools, both public and private, should just distribute copies of the constitution, as many history/social studies textbooks often condense the laws and are really just what the author interprets as the laws.

"Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise of; 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"

So basically,

the citizens of the United States can sue their government if they want, which is damn amazing.

I can say "allowing syrian refugees massively into the united states is a security risk, due to the violence taking place into the region, not to mention the dramatically increased crime rate seen in Europe due to massive immigration" and have that be protected as free speech. I'll be called an Islamophobia and god knows whatever hells and be labeled as a "hater" but whatever, its my opinion. But if I say "My neighbor Muhammad and his wife Fatia are terrorists" and the FBI asks "Why do you think so?" or something similar and I say "because they are Muslim" or something along those lines, that's slander, hell even worse than slander, and punishable by law.

If I were to say "border security does need to be increased with Mexico, and illegal immigrants do need to be deported" it is protected speech. However if I say "Maria and Alonzo and their 3 kids Estefania, Marco, and Julia are all illegal immigrants" only because they are Hispanic, then yes, that is slander and punishable by law.

If the press does what it did with Ted Cruz and says "Drop dead, Ted!" its protected (yellow journalism, but still protected). However, if it were to say something aorund the lines of "New Yorkers should attack Ted Cruz because of what he said (look up the New York values controversy)" or anything along those lines, that's a death threat, and punishable by law.

Hell you can "hate" as much as you want and be peaceful about it.

[OlderAndWiser]

I did not post the full text of the First amendment because I only addressed the Free Speech Clause.

"Petition the Government for a redress of grievances" means citizens can ask Congress to respond to grievances. Citizens do have the right to sue the federal government in limited circumstances.

Slander and libel are civil wrongs. A victim can sue the perpetrator for damages caused by the misstated facts, but no one will be tried for any criminal offense.

The press has wider latitude with public figures because the US Supreme Court has ruled that public figures cannot sue for slander or libel unless the misstatements were made with actual malice.

Yes, hateful speech is protected by the First Amendment. That presents something of a paradox when you consider that hate crime legislation increases the penalties for certain crimes because of what you were thinking when you committed the crime.

[PT1911]

I figured lol, that's a discussion for a later time haha.

As to the rest of your points, you're the lawyer, so obviously you know much more than I do :)

[WarBoy86]

I thoroughly enjoyed your myTake @OlderAndWiser.

I feel that free speech is a double edged sword- It protects us from tyranny and allows for free thought, but at the same time it allows for the misuse of information and the growth of harmful ideologies such as racial supremacy and religious and political extremism. Unfortunately, there's nothing that can be done about that without making changes to the constitution, which can (and will) open it's own can of worms.

Just my two pennies.

[OlderAndWiser]

". . . and the growth of harmful ideologies such as racial supremacy and religious and political extremism." Who determines what constitutes political extremism? At one time, the loyal governing body deemed the Declaration of Independence to be political extremism.

[talloak]

Excellent take. It's worth mentioning that the current Supreme Court has given the right of free speech to corporations, thereby recognizing corporations as legal citizens. Then they declared that corporations have the right to free exercise of religion without government intervention. I'm still waiting for them to give Second Amendment rights to corporations so that they can take up arms against their competitors. That should be interesting.

[Enaya]

It means government and Congress specifically will not get in the way of free speech. It doesn't say that no one else can't get in the way of it. It is not absolute. It doesn't not protect you against inciting hate speech or being an idiot. That's what most Americans don't get.

[FakeName123]

The problem I have with this is how vague a lot of those laws are. As you mentioned in the comments - you are an attorny and you should probably know best.

Personally I think the extreme vagueness of a lot of laws are regulary causing as much difficulties as those laws are meant to do good. For example "to use certain offensive words and phrases to convey political messages" or what most would refer to as hate-speech. What defines it? How exactly have a few individuals the right to define it? What about the easily available abuse of such vague laws? So on and so forth.

In german we have a derogatory term for lawyers: Rechtsverdreher. Directly translating to Justice/Right-Distorter/Twister.

[OlderAndWiser]

Are you familiar with the expression, "The first thing we do, let's kill all the lawyers." People like to quote that as a disdainful expression about lawyers, but the comment is actually made by men who are plotting to incite anarchy.

There is a tension between making laws too specific and making them too vague. Suppose that we define rape as a male penetrating a female's vagina with his penis without her consent. Under that definition, if he holds her down and penetrates her with his finger or tongue or a dildo, that is not rape. Laws that are too specific regulate very little and are too easy to circumvent. Particularly in a constitution, the declaration of rights should be written in broad language to ensure that our rights are not limited.

In our system of government, our courts interpret laws and apply them to the facts of a particular case.

People have always held some resentment towards lawyers. However, if you get arrested, will you call a lawyer or a civil engineer?

[cipher42]

Fucking thank you. This is honestly such basic ass information, and yet no one seems to actually be aware of it. They just go around yelling about their "constitutional rights" when they clearly have no idea what those actually are.

[VirginiaBeachBum]

An excellent and accurate take on the Free Speech Clause. Too many people do not understand what the First Amendment really means.

[OlderAndWiser]

I thank you for your very kind words.

[VirginiaBeachBum]

You're quite welcome. I'd be interested in your take on the other part the First Amendment, the Establishment Clause, especially if freedom of religion includes freedom from religion, and the government's neutrality of specific religions or religion in general.

[OlderAndWiser]

I will consider that for another occasion.

[Waffles731]

Free speech is being able to say what you want.
Its also being able to call out an asshole who said something truly assholish but protected by free speech
Freedom of speech does not mean freedom from consequences

[oddwaffle]

Free speech: the right to give your 2 cents opinion. Just don't take other people's 2 cents because your will get the copyright thing. Also, tread carefully so you don't get hit with something like defamatory comments.

[OlderAndWiser]

Libel - making defamatory comments in a written medium
Slander - making defamatory comments in a spoken expression

[oddwaffle]

Yeah, I think both can land a person in hot water. Also depending on how deep said person pocket is. The general rule of thumb is that the less money you spend on your lawyer compare to the other guy, the less of an advantage you get.

In America, you need money to defend yourself in court (from a layman's view)

[Anonymous]

Why would they need to make laws when you can be viciously attacked on the internet, lose your job and have that hanging over you when meeting future employers over saying something unpopular (or at least something that may offend a small segment of the population)? Doesn't really seem free.
Such a sad state of affairs.

[OlderAndWiser]

If someone makes statements about you which purport to be facts, and those statements are not true, you can sue them for libel. What alternative to our current laws would preserve our right to free speech?

[springocelot]

Are you a lawyer by any chance? Excellent Take!

[OlderAndWiser]

Yes, I am. I have been practicing for 30 years. I have a solo general civil practice and I actually have never had a case that invoked a First Amendment concern, but it is a personal interest and I see people purporting to understand "free speech" frequently enough that I wanted to write a myTake to educate at least the few who might read it.

Thank you for the kind words.

[springocelot]

No problem. I kinda figured you were since lawyers are the only people I know who understand this stuff. In light of what is happening in this world, this is pretty important. Like another person, would like to hear your take on the establishment clause as well.

[ObscuredBeyond]

Both my parents were history teachers. So lawyers aren't the only ones educated on the subject. But yeah, refresher courses are more imperative now than ever. Regardless which campaign your family is behind in this year's elections, I can tell you this: the push on both the red and blue sides of the aisle in favor of populism rather than principle is downright terrifying.

Neither wants virtue. Both want revenge. To give the other a black eye. But only the blues still remember what they're even fighting for - and it's not a good thing. The reds are selling out on principle in favor of payback. But to what end?

In a day when intellectual discipline and spiritual penance are the best medicine, the junk food of populist emotion remains the popular indulgence. It's an inherently self-destructive trend. Worse: this is the same trajectory of moral freefall that made the downfall of Rome inevitable.

[juliaanita]

Very very enlightening. What has transpired that you wanted to address free speech?

[OlderAndWiser]

I am an attorney. I have been practicing for 30 years. I have a solo general civil practice and I actually have never had a case that invoked a First Amendment concern, but it is a personal interest. I see people purporting to understand "free speech" frequently and they obviously misunderstand the right. so I decided to write a myTake to educate at least the few who might read it.

[juliaanita]

I am glad to have read it!

[Phoenix98]

I did have my own thing prepared but honestly @PT1911 hit the nail on the head pretty well.

[PT1911]

I did write it on the spot so it is a bit wordy and repetitive lol

[Phoenix98]

@PT1911 yeah but the point is spot on.

[Pinkbeauty]

I think free speech means u get to say whatever u wanna

[OlderAndWiser]

No, you are not free to stand up in a theatre and scream "Fire." There will be consequences if you make false statements of fact about me which damage my reputation. You cannot make a speech encouraging minors to engage in criminal activity. You are not free to protect in the governor's office.

There are limits on free speech. Did you read the body of the myTake or just the title?

[Pinkbeauty]

yes I did and I'm not talking about screaming in a theater shouting fire I'm talking about free speech like having the freedom to say what ever u want like when u wright in a blog online or wright your own profile or sticking up for self if your in a situation were someone can change could bullie

[cipher42]

It means you can say what you want (within limits) and the government can't punish you. Not that you can't be fired for what you say, not that other people can't tell you you're wrong, not that what you say can't be censored if it's posted on a private entity's space. Just that the government can't stop you from saying it.

[OlderAndWiser]

@cipher42 Exactly!

[Pinkbeauty]

@cipher42 ah I see

[Matchmaker7072]

Well done! Fantastic job.

[OlderAndWiser]

Thank you. I see many posts and comments where it is obvious that this subject is misunderstood, and I am a lawyer, so I decided it was my job to set the record straight. . . at least for some of the users who actually read it.

[TadCurious]

Very well done. Excellent myTake.

[OlderAndWiser]

It is always nice to be appreciated. Thank you!