Since I started blogging here last month, I have written a fair amount about copyright law and how it relates to the work of freelancers and bloggers. It occurs to me, however, that copyright law is just one part of a much larger legal concept. Before I can move on to other concerns that bloggers, freelance writers, and others might have—such as defamation law, the right of publicity, and so forth—I should address the legal doctrine that encompasses all of these issues. It is a well-known legal term, but I dare say it is not a well-understood one. You hear it used in the media and the public sphere every day, but it merits a bit of attention before we move on to other topics. I am talking, of course, about “freedom of speech.”
As a very general rule, people in the United States have the right to say what is on their minds without fear of government interference or punishment. In practice, it is rarely that simple, of course.
What do you mean by “free speech,” exactly?
The First Amendment to the U.S. Constitution guarantees the right to free speech, but what does that actually mean? The most important concept to understand about free speech is this: the First Amendment only applies to the government, so only the government can infringe upon your rights of free speech. Multiple exceptions to this general rule exist, but considering the way “free speech” is often discussed in public, it seems as though the fact that it only really relates to government action is often overlooked or forgotten.
Who can actually “infringe” free speech rights?
The state, by which I mean the government, is capable of violating your free speech rights. That’s all. This might include elected officials, government agencies, or individuals acting in an official capacity.
The government cannot enact content-based restrictions on speech, but they can restrict the time, manner, and place of speech. A famous U.S. Supreme Court decision from 1977, National Socialist Party of America v. Village of Skokie, offers a clear example of what this means. The National Socialist Party of America—more commonly known as the “Neo-Nazis”—announced plans to hold a march in Skokie, a Chicago suburb with a large Jewish population. A Cook County judge issued an injunction prohibiting the marchers from displaying the swastika, the symbol of Nazi Germany, or wearing Nazi uniforms.
After several state courts refused to lift the injunction, the U.S. Supreme Court took the case. It ruled that, as long as the march remained peaceful, the injunction violated the First Amendment. Cook County and the Village of Skokie, the court ruled, could not prevent the Nazis from holding a march solely because almost no one wanted them there. All it could do was establish reasonable rules for where and when they could hold the march.
What about private individuals and businesses?
At the risk of sounding snippy, here are a few purely hypothetical examples of situations that do not violate anyone’s free-speech rights:
– A person refutes, criticizes, or even ridicules another person’s public statements, be they written or verbal;
– A person declines to allow comments on a blog post or other online publication;
– A person declines to engage with another person on a social media platform like Twitter, such as by blocking them;
– A social media platform like Facebook enacts rules banning certain types of content; or
– A corporation pulls advertisements from a television show because of statements made by an individual centrally involved in the show.
Note that all of the above examples involve private individuals or businesses. This illustrates a corollary rule regarding free speech: while the government cannot stop you from saying what you want to say (most of the time), no one is obligated to listen to what you have to say, and no one is obligated to provide you with a platform from which to say it.
What are the exceptions to free speech?
In addition to time, manner, and place restrictions, the U.S. Supreme Court has identified exceptions to free speech, meaning that certain types of speech may be prohibited by legislation, restricted or regulated by government agencies, or enjoined by the courts:
Copyright and Trademark Infringement: The First Amendment does not prevent courts from enforcing copyright and trademark laws.
Commercial Speech: Any speech made for business or commercial purposes, such as marketing and advertising, is subject to government regulation to some extent.
False statements: The Supreme Court has generally held that false statements of fact have no value under the Constitution. Types of government action allowed with regard to false statements include prosecutions for fraud, civil lawsuits for defamation, and civil liability for injuries resulting from reliance on false statements.
Defamation: A false statement about a person to a third party, made with knowledge of its falsity, may expose the speaker to civil liability for defamation if the person suffers financial harm. Spoken defamation is known as slander. In its written form, it is known as libel.
Threats: Threats of violence that are intended to place their target at risk of death or serious bodily injury, and that may not be reasonably understood to be an exaggeration or hyperbole, are usually not protected.
Fighting words: In its 1942 decision in Chaplinsky v. New Hampshire, the Supreme Court defined “fighting words” as speech that “tend[s] to incite an immediate breach of the peace,” is “inherently likely to provoke a violent reaction,” and may be reasonably expected to be taken as a “direct personal insult.”
Incitement: Incitement to imminent violence or other lawless action is not protected free speech, based on the three-part Brandenburg test—intent, imminence, and likelihood—developed by the Supreme Court in 1969’s Brandenburg v. Ohio.
Obscenity: A long legal tradition in this country has held that “obscenity” is not protected by the First Amendment, but a useful definition has been impossible to establish. Supreme Court Justice Potter Stewart, in the 1964 case Jacobellis v. Ohio, famously stated that “I know it when I see it, and the motion picture involved in this case is not that.” The court established a slightly-more-helpful test nine years later in Miller v. California, now known as the Miller test, which asks: (1) whether the work “appeals to the prurient interest” under “contemporary community standards;” (2) whether it offensively depicts sexual or similarly taboo subject matter based on applicable state law; and (3) whether the overall work lacks “serious literary, artistic, political, or scientific value.” The court held in 1982 in New York v. Ferber that child pornography categorically violates the Miller test.
Coming soon: Defamation and how to avoid it as a blogger, the right of publicity, how to attribute photographs, and more on my journey to understand software…