Freedom of speech in the United States is guaranteed by the First Amendment to the U.S. Constitution. The First Amendment states the Congress cannot make laws that abridge the freedom of speech. A common misperception is that the First Amendment bans the right of everyone and anyone to limit the speech of others. This is not the case.
The First Amendment limits the ability of the U.S. federal government, as well as the governments of states, counties and municipalities, to censor speech. A person’s employer can still set standards for speech in the workplace, for example. Newspapers and other media outlets for the most part set their own standards for what they will and will not publish. There are even some limitations on the freedom of speech that governments can put in place.
Some of the significant limitations are as follows:
- Time, Place and Manner Restrictions: When it comes to public expression of opinion and large-scale demonstrations, governments can place reasonable restrictions on the time, place and manner in which individuals and groups can gather to engage in their protected political speech. So-called “time, place and manner” restrictions are allowed, because they serve the public’s competing interests in keeping traffic flowing, preserving property, and protecting the environment, among others. So, while both individuals and groups have the right to public speech, they can be required to respect time, place and manner restrictions;
- True Threats: For legal purposes a true threat is a statement directed towards a specific person and meant to frighten or intimidate another person and make them believe that they will be seriously harmed by the speaker or by someone acting on behalf of the speaker. True threats are not protected by the First Amendment. A person who makes a true threat can be charged with a crime, prosecuted, convicted and punished. State laws that make cross-burning a crime have been justified as the act is form of true threat;
- Speech that violates intellectual property laws: The government has copyright and other laws that regulate the use by others of a person’s copyrighted intellectual product. This regulation is allowed under the First Amendment
- Libel and slander: A person can have to answer in a civil court of law to a lawsuit alleging that they libeled or slandered another person. Libel is the publication of a statement about a person that is false, causes harm to their reputation and damage. Libelous statements usually concern the following:
- Statements regarding improper sexual conduct;
- Statements that associate someone with a vile disease, e.g. claiming that person has a sexually transmitted infection;
- Statements that accuse the person of illegal behavior;
- Statements that hurt someone’s livelihood.
- Statements that allege racial or religious bigotry.
Slander is essentially the same but the slanderous statement is made orally, not in writing. For a person who is a public figure to prove libel or slander, they have to prove that the source of the false statement made it with knowledge that is was false or recklessly failed to verify the truth of it,
- Obscenity: In 1972, comedian George Carlin (1937 – 2008) was arrested in Milwaukee, Wisconsin for disturbing the peace when he performed a comedy routine that included obscene language. On his next record album, issued in 1973, he performed a similar routine, entitled “Filthy Words”. Carlin’s routine dealt with his now famous “seven dirty words” and government censorship of obscene language. Pacifica radio station WBAI played the record as part of a broadcast in 1973 without deleting the allegedly obscene language.This led to the ruling of the United States Supreme Court (USSCT) allowing the Federal Communications Commision (FCC) to warn the radio station about consequences they would impose for future broadcasts of the words in Carlin’s routine. Mainstream media outlets now delete or screen these words, if they find their way into broadcasts, in order to avoid FCC sanctions.
- Over time, courts have defined the so-called “safe harbor” rule. It allows media outlets to broadcast indecent (but not obscene) material at night from 10 p.m. to 6 a.m., when children are not likely to be in the audience. The FCC has never published a list of specific words prohibited from the broadcasts during the time period from 6 a.m. to 10 p.m. But, again, broadcast networks still censor some or all of Carlin’s seven dirty words;
- Child Pornography: Governments have laws in place that make it a crime to possess, produce and/or distribute child pornography.
- Adult Pornography: Theoretically, there can be limits on the possession, production and distribution of adult pornography as well. The USSCT has defined “obscenity” as a category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value. This definition would seem to allow government regulation of most adult pornography, material with explicit sexual content. There seems to be a thriving market in adult pornography which the government tolerates, but the law does control how and where pornographic material can be made available and that is not in the mainstream media;
- Fraud and Other Speech Incident to Criminal Conduct: A person can be subject to criminal prosecution by police authorities for crimes that involve making false representations about a range of things for criminal purposes, usually to part a person from their money or other thing of value. Another category of crime that might punish speech is identified as disturbing the peace;
- Fighting words: So-called “fighting words” are words, or speech, aimed at inciting imminent, lawless action on the part of those who hear them. The use of fighting words can be prohibited and made illegal in criminal law.
All of the states in the U.S. have provisions in their state constitutions that are the same or comparable to the First Amendment in the U.S. Constitution. Some states offer greater protection of the freedom of speech, press, and assembly than the U.S. Constitution does.
What Is Freedom of the Press?
The First Amendment also provides that the government cannot abridge the freedom of the press. As with freedom of speech, government at every level is prohibited from interfering with the media. It cannot force the media to publish any material and it cannot prohibit the media from publishing any material, unless, of course, it violates any of the limitations noted above.
As with freedom of speech, there are some limits on freedom of the press. For example, reporters sometimes rely on confidential sources to give them information about what is going on inside the government or a business. There are, however, laws that prohibit leaking certain kinds of information to the press. A reporter who publishes information that has been leaked in violation of the law can be forced to attend a hearing or investigation and required to identify their source.
In the past, reporters have spent time in jail rather than disclose their sources to law enforcement. This is an ongoing area of conflict between the government and the media.
One additional issue that arises in connection with freedom of the press is that of prior restraint. Prior restraint occurs when the government tries to prevent publication of information because it poses some kind of supposed threat to some legitimate, vital interest of the government. The Court held that in order to restrain a media report before it is published, the government must prove that the newspaper publication would cause “inevitable, direct, and immediate danger to the United States.” So, prior restraint of media publications by government is possible, but extremely rare in practice.
Why Is Free Speech and Press Important?
Some of the benefits of freedom of speech are as follows:
- Anyone in the U.S. can publicly disagree with authorities, even the President;
- Any person in the U.S. may engage in speech that is connected with their practice of a religion. Citizens and non-citizens alike can choose their own religion. Or, people can choose to criticize religions and religious practices without fear of persecution by the government or a religious authority that is aligned with the government as happened in the Middle Ages and the Renaissance, when, e.g. in 1415 the Council of Constance burned the Czech dissident, Jan Hus, at the stake for his heresy against the dogma of the Catholic Church. Or, in the 17th century, when the scientist Galileo Galilei was tried by the Inquisition and spent the later part of his life under house arrest because his scientific writings were considered heretical to religious dogma. That cannot happen to us today in the U.S.;
- The U.S. has a huge media industry that is able to report on government mistakes and malfeasance. In fact, organs of the media are constantly engaged in relentless criticism of public officials of all kinds, and the government can do nothing to penalize them in any way;
- The First Amendment allows people to gather, and en masse, to let their voices be heard on social and political matters, subject of course to time, place and manner restrictions.
What Rights to Expression Do I Have?
Again, the First Amendment protects us from government interference or restraint of most of our speech. But the First Amendment does not prohibit private entities, such as private corporations, from limiting the speech of its employees. The First Amendment only applies to governments and agencies of government. Public schools are considered agencies of government but can engage in some limited forms of restraint of speech that are not allowed for other government agencies, for example, in school newspapers.
What Is Government Censorship?
Government censorship is common in many other nations in the world. In these countries, the government controls what media outlets can communicate to the nation’s citizens. Journalists who publish information the government wants to keep secret can pay with their lives for publishing information against the wishes of their government.
This cannot happen in the U.S. Limitations on the freedom of speech and the freedom of the press are minimal compared to the control that some foreign governments exert over media outlets in their nations.
The Founding Fathers in the U.S. included the First Amendment in the U.S. Constitution because they believed that freedom of speech and the press is the foundation of the government “of, by and for the people” that they sought to establish.
Should I Consult with Freedom of Speech and the Press Lawyers?
Few people will have First Amendment freedom of speech or of the press issues come up in their daily lives. Mostly, journalists or newspaper publishers are the ones who will occasionally encounter issues. Or, groups that wish to stage large demonstrations or protests may have issues with local law enforcement when they attempt to get a permit for their event. They may find they have to negotiate time, place and manner restrictions. A freedom of speech lawyer is equipped to handle these issues.
A person who has an issue with asserting their First Amendment rights should consult an experienced government lawyer who specializes in the First Amendment. They are the ones with in-depth knowledge of USSCT cases and their limitations on how our government can regulate our speech.