Why the 1st Amendment does not guarantee FREEDOM of SPEECH

[AviatorTom]

The First Amendment in the Bill of Rights, US Constitution

The First Amendment to the US Constitution, as it's written. does not guarantee the right of Free Speech to everyone. Rather, it specifically applies only to the US Congress, preventing it from passing any laws that restrict speech.

Over time, the US Supreme Court expanded the Amendment's protections to include all levels of government: federal, state and local.

That still doesn't guarantee free speech to everyone.

Despite the common misconception that the First Amendment prohibits anyone from limiting free speech, the text of the amendment, as interpreted by the Supreme Court, prohibits only the federal government, the states, and local governments from doing so.

There is nothing in US law that prevents an individual, company, or organization from restricting free speech, or to take actions against someone who makes specific statements.

This is precisely why companies may fire individuals who make posts on social media that are not inline with the company's values. And why a teacher may lose their job for introducing books into the classroom that violate the school's guidelines and policies.

The US Education system has changed over the years. Civics, which included a deep dive into the US Constitution and laws, used to be a part of everyone's education, starting in elementary school and extending through high school. Any coverage of Civics is rare in today's schools. Instead, educators tell students their sometimes-flawed opinions on what the law is with respect to free speech, as well as other topics.

It's time individuals learned that there are consequences on what one says or does, and that the "I have Free Speech" argument doesn't really apply.

Here are some sources that provide further information on the topic of the First Amendment and Free Speech:

Free Speech Center: What the First Amendment really means

Wikipedia: First Amendment to the United States Constitution

Cornell Law School: Freedom of Speech: Historical Background

[loveslongnails]

First, thanks for this post Tom. It's a great point for discussion.

That said, I'm not willing to debate one interpretation of the 1st amendment over another. When a Supreme Court decision comes down on a part of the Constitution, it doesn't actually settle any DEBATE over it, but rather, it determines what the ongoing "legal" application is going to be. That is, until if and when it gets revisited and changed again. If you have 5 judges saying taking one position, and 4 judges taking the other, it settles nothing about the substance of the debate except what shall be become enforceable law.

Instead I want to address this: "This is precisely why companies may fire individuals who make posts on social media that are not inline with the company's values."

* In my opinion, the 1st amendment has far less to do with this than the "At Will Doctrine". Any employer in the USA can fire you at any time for virtually any reason at all.

In the example of social media comments going against company policy, the company may choose to cite that for publicity reasons (timing, etc.,), or it may be truth, but it's just one of any number of reasons they could give. They could go the other way completely and say "Their termination had nothing to do with their comments on Social Media, but rather it was blah, blah, blah".

[OlderAndWiser]

You are absolutely right. The government may not restrict your right to free speech (with certain exceptions) but that doesn't mean you can say whatever you want without suffering consequences from those who disapprove of what you say. Does anyone remember the Dixie Chicks?

[msmissydc]

Yes, thats how freespeech works. The government can't restrict your freedom of speech. It generally isn't a freepass for shouting nonsense and freedom from consequences. It always specifically is against the government shuting people up.

Its not "you have to listen to me, and I have the right to publish anything everywhere" law.
Also if you break other laws by saying something thats still breaking other laws.

Thats how it works inlmost states that have a freedom of speech right in their constitution. Maybe there are exeptions but its still the case most of the time. You explained Well how it is specifically for the U. S.

[sage2021]

So, does the average person have free speech under the First Amendment or not? Or is it a case by case type of thing?
My apartment manager told me not to speak with her vendors (I guess she wants to keep the crap that goes on here a secret?). So I said to her, you can't tell me who I can and cannot talk to, because I have the right to speak and you can't take away my First Amendment Rights!

So, was I wrong?

[hafinjun]

Not as i read it , its pretty clear make no laws restricting or bridging free speech. As long as your not infringing on another citizens rights go get em.

[hafinjun]

I meant that yes we have free speech within the confines of the constitution.

[sage2021]

@hafinjun
Someone told me that only people in the government have free speech.
What I want to know is does everyone in America 🇺🇸 have free speech First Amendment Rights?

[AviatorTom]

@sage2021 The answer is, it depends. You do not have free speech when talking about an individual, group or corporation. However, if it involves the government, even if indirectly, you legally have the right to free speech. In all cases, though, a person's speech may come with consequences.

[sage2021]

Well, that's as clear as vodka!

[sage2021]

Thank you for the MHO Tom 🧡

[MrOracle]

The entire Bill Of Rights, which are made up of the first 10 amendments, are all limitations on the GOVERNMENT's powers, so of course they aren't going to apply to personal or professional (work) relationships. There are some other laws that cover those areas - for example, laws against slander or libel - but those aren't in the 1st Amendment because that amendment is only there to restrict GOVERNMENT.

Plus, the right to free speech has never been ABSOLUTE, because some speech would infringe upon the rights of others. Threatening the president, or calling in a bomb threat, or inciting a riot, or yelling "fire" in a theater (when there's no fire) are all classic examples of speech that isn't protected, because that would be infringing on other people's rights.

And even though libel and slander laws exist, it's pretty difficult to win such a case - telling lies about someone else alone is almost never enough - you have to prove a motive and you have to have suffered documented losses to win, generally.

It would be hard to find a country with a better balance of free speech and protecting the rights of others than the US's system, but no system will ever be perfect, because you are dealing with humans, who do unpredictable things, and some percentage of whom will push and push and try to find new ways to get around laws - and others who try to extend the laws past what they were intended to cover - and that's why we have a Supreme Court to make the final decision on these things.

[Chazmatazz269]

That’s mostly true, but there are limitations even in the private sector. Gina Carano’s win against Disney didn’t set a precedent. If your employer fires you for expressing your personal opinions outside of work, they better have fired everyone who expressed their personal feelings outside of work. Otherwise they’re subject to wrongful termination suits. If you create a “hostile work environment”, even if you think it’s in the company’s best interests, you and the company can be sued. If you say or write something that could be detrimental to the company’s business model, you could be fired, but only if they can prove that they have previously fired everyone who threatened their profits.
To your point, it ceases to be a freedom of speech issue at that point, but that is the basis of interpretation used to protect people saying and writing things their employers don’t approve. Particularly when it’s done outside of the workplace and normal working hours. Otherwise you get into companies employing fascist systems to keep their employees under control. Take anti-union rhetoric and consequences, or employers literally firing people if they don’t vote as instructed. There are precedents protecting those expressions and many others. Employers do not have carte blanche to force workers to say and do whatever they want just because that wasn’t the intention of the Constitution. We have protections from our employers thanks to historical interpretations of the Constitution that recognize our economy is tied to our government, and we cannot have liberty if we allow job creators to enslave us where the government cannot.

[Zack-Bann]

Honestly the US is already full of entitled people hiding behind free speech as it is (on both sides of politics)


To make it so a company cannot fire you for what you say would make the problem even worse


There is such thing as too much freedom.


No one should be censored when voicing their opinion
But many people go far beyond that
They enforce their opinion and scream it so loud and so often that becomes a way for them to silence out the others


I have always said: if it’s freedom to chose apples then you should be free to chose bananas


Which isn’t the case today
It’s freedom for me and not for thee
“If I disagree with you I will want you to be silent because you’re triggering me”

[Smegskull]

Not American.
I would think "The supreme court expanded..." line is a bit misleading, they would just clarify what it always meant (I assume in this case based on the supremacy clause of congress)

It's true free speech is not protected from private discrimination but other laws come into play between private entities. Contract law, discrimination laws, fair dealings and competition laws.

There are many cans of worms yet unopened and with all the arbitration clauses they likely never will be.

[boundless]

There are actually state laws that do not allow companies to limit free speech, specifically social media companies. If you are allowing other people to publish opinion on a platform, you should maintain people's free speech or your can very easily be in violation of the law. You have to be very consistent with rule enforcement. If you show any political bias (like GaG does every day) then you are in violation of the law.

[boundless]

It's better to just not limit speech at all, because if your team doesn't follow strict guidelines to limit every single person in the exact same way without a single exception then you become liable for your staffs actions and can be heavily fined to the point that you are driven out of business. Do you want to go out of business? No? Then let people say what they want when they want, because your staff will always slip up and you can quickly incur millions of dollars in fines.

[boundless]

It is actually more costly to censor people because then you become responsible for detailing why you are censoring them, you have to provide appeal processes which demands communications between employees and the public, you have to censor everyone not just some people and treat them all equally without bias which is impossible to scale, and you have to pay heavy fines when you fail to be consistent. Censorship leads to bankruptcy.

[BadApple69]

Tom, you are 100% correct. The government can’t silence you UNLESS your speech is inciting violence.
Also there is no such thing as “hate speech”. You can spew as much hate as you want and the government can’t silence you, but as you say the company you work for can fire you for it. You are not protected from companies or individuals only government.

[Friendlybro79]

I think this is the distinction of not being free of consequences from what you say. Sure say what you want but you may have to face consequences for doing so. Hence why you have the right to remain silent because anything you say can and will be held against you.

[ArrowheadSW]

This is why the idea of "freedom of speech absolutism" is bogus. Like if someone on this site posts that they "hate ethnic group xyz", the moderators of this site have every right to take down that post if they want to.

[Sal_Monella]

I have slept with the constitution for 45 years. Took me a while to read it because I was raised in the Hippie Daze (Days) and thought it did not apply to me. Then I got drafted and counter-enlisted in the Marines because I was a Really Good Shot.

[Dargil]

The US Government guarantees it will not legislate diminishing free speech. And through the Supremacy Clause, the States.

[AviatorTom]

Correct. Governments won't do it, but that doesn't mean people can't.

[Dargil]

Except on GAG. 😁

[Dargil]

People don't legislate they can censor, though

[AgentG111]

Bingo! Also why if you read Miranda warning. It specifically tells you if you talk it can and will be used against you.

You have the ability to say anything you want but you must also understand that you are responsible for everything you say.

[OneViewpoint]

This is not news. The Constitution's purpose is to define the powers of a federal government and therefore the powers left to the states.

[msc545]

Nothing in life is guaranteed except death, taxes, difficult women, and shaving. If nothing else, the First Amendment sometimes keeps the government from fucking with the stuff you say and write.

[katiesmuff]

I think your post is 100% true and see no issues with it used as such.

[Twalli]

In my state, we have a civics test in high school that all students must pass to graduate. If you don't use the state supplied one, you must get the one you created approved by the state.

[Anonymous]

Free Speech doesn't work in a secular society

actually the entire Constitution doesn't work in a secular society

[exitseven]

We are endowed certain freedoms by out creator. Among them is freedom of speech.

[goaded]

I think you're mixing up the declaration of independence and the first amendment to the constitution.

[exitseven]

@goaded They all sort of go together.

[goaded]

Like the one that says no three terms for a president?

[exitseven]

@goaded That is the 22nd amendment to the constitution created after FDR died.

[KostasKouvalis]

Shhhhhhhh

Why you telling them,?

[ChooChooHaha]

Bullshit.

[AviatorTom]

@ChooChooHaha Care to explain why?

[ChooChooHaha]

"Congress shall make no law abridging the freedom of speech."

[ChooChooHaha]

Consequences? Sooo... I say fuck the pigs, the cops get to throw a brick through my window?

I'm asking for it if I tell a guy to fuck off for harassing me?

Idfts.

[ChooChooHaha]

Plus: at a certain level, apparently companies do the bidding of government, and/ or there's no difference. Propa outlets for example. So why wouldn't the same rules go for these companies? Yeah, there's a difference between public and private for a reason. But where does the line get drawn in that case?