Anaya Nolan
The First Amendment of the U.S. Constitution gives everyone in the United States the right to express their opinions without government censorship or interference. However, this right is not absolute, and certain types of speech, such as obscenity, fraud, child pornography, and true threats, are not protected by the First Amendment. The Supreme Court has ruled that governments may impose reasonable restrictions on the time, place, and manner of speech. This raises the question: can state law ban free speech? While state laws cannot ban free speech outright, they can regulate or restrict it under certain circumstances, such as when it poses a threat to national security or falls into specific categories of unprotected speech.
Can State Law Ban Free Speech?
| Characteristics | Values |
|---|---|
| Freedom of speech | Strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws |
| Free speech exceptions | Obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, commercial speech such as advertising, defamation, and fighting words |
| Content-based restrictions | Discrimination based on viewpoint or subject matter |
| Libel and slander laws | False statements of fact that are said with a "sufficiently culpable mental state" and can be subject to civil or criminal liability |
| Private landowners | Not bound by the First Amendment |
| Social media platforms | Not bound by the First Amendment |
| Hate speech | Protected by the First Amendment, but illegal conduct motivated by hate may be regulated by law |
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What You'll Learn
The First Amendment and free speech
The First Amendment to the United States Constitution, adopted on December 15, 1791, is primarily recognized for safeguarding freedom of speech, religion, the press, and the right to assemble and petition the government. While it prevents Congress from enacting laws that infringe on these rights, the First Amendment does not offer absolute protection for all forms of expression.
The First Amendment guarantees the freedom to express opinions and ideas publicly without interference or censorship by the government. This encompasses the decision to speak as well as the decision to remain silent. However, the Supreme Court has clarified that certain categories of speech are not protected by the First Amendment. These include obscenity, fraud, child pornography, speech integral to illegal conduct, incitement to imminent lawless action, intellectual property infringement, true threats, and defamation. Notably, hate speech is not considered a general exception, as hate crime enhancements target the underlying criminal conduct rather than the speech itself.
The First Amendment also does not prevent private entities, such as businesses, colleges, or religious organizations, from imposing their own restrictions on speech. This distinction between state and private actors has been a significant point of contention, with ongoing litigation regarding the role of private landowners in restricting speech on their property. Additionally, the Supreme Court has recognized "fighting words," which are personally abusive and likely to incite violence, as falling outside the protection of the First Amendment.
While the First Amendment generally protects against prior restraint or pre-publication censorship, certain exceptions exist. For example, the government can suppress speech that poses a threat to national security, as seen during World War II and the McCarthy era. The Court has also allowed restrictions on commercial speech, such as false advertising and telemarketing fraud, while recognizing that commercial speech has "diminished protection." Furthermore, the Court has upheld limitations on broadcasting rights for television and radio shows to encourage a "speech marketplace" for artists.
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Libel and slander laws
For most of the US's history, the Supreme Court did not rule on libel cases, leaving a mix of libel laws across the states. In 1804, Harry Croswell lost a libel suit when the Supreme Court of New York refused to accept truth as a defence. The following year, New York changed the law to allow truth as a defence, and other states and the federal government followed suit. However, in 1735, John Peter Zenger was acquitted of libel by a jury, in a case that demonstrated the dangers of criticising a government leader. Zenger's lawyer, Andrew Hamilton, persuaded the jury to ignore the principle that truth was not a defence.
In 1964, in the case of New York Times Co. v. Sullivan, the Supreme Court recognised that libel laws could stifle debate on public issues. It established that a public official had to show actual malice to win a defamation case, a decision that constitutionalised libel law. This was a seminal shift in constitutional jurisprudence, with defamation lawsuits becoming a common occurrence.
While there are no federal criminal defamation laws, 23 states and two territories have criminal defamation laws, and some states have infrequently prosecuted individuals under these laws. Most defendants in defamation lawsuits are newspapers or publishers, and most plaintiffs are public figures. Libel and slander laws must be balanced with the First Amendment right to free speech and a free press, which often clashes with the interests served by defamation law.
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Freedom of speech in private spaces
The First Amendment to the U.S. Constitution strongly protects freedom of speech and expression from government restrictions. This means that individuals are free to express their opinions publicly without censorship, interference, or restraint by the government. However, this does not apply to restrictions imposed by private individuals or businesses.
The Supreme Court of the United States has recognized that governments may enact reasonable time, place, or manner restrictions on speech in public spaces such as parks, sidewalks, and government property. For example, a city ordinance may forbid all picketing in front of a school except for labor picketing. This would be considered subject matter discrimination as it favors one subject over another.
The right to freedom of speech within private spaces, such as shopping centers, has been the subject of litigation. Cases such as Lloyd Corp. v. Tanner (1972) and Pruneyard Shopping Center v. Robins (1980) have debated whether private landowners should be allowed to exclude others from engaging in free speech on their property. This involves balancing the speakers' First Amendment rights against the Takings Clause.
Privately owned social media platforms, such as Facebook and Twitter, are not bound by the First Amendment. However, the Court has struck down a North Carolina law that made it a felony for registered sex offenders to use commercial social networking sites that allow minor children, as it impermissibly restricted lawful speech.
While the First Amendment protects freedom of speech, there are certain categories of speech that are given lesser or no protection. These include obscenity, fraud, child pornography, speech integral to illegal conduct, true threats, false statements of fact, and commercial speech. The Supreme Court has established a framework to determine which types of false statements are unprotected, such as those made with a "sufficiently culpable mental state" or that are negligent or implicit.
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Freedom of speech and national security
Freedom of speech in the United States is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. The First Amendment's constitutional right to free speech applies to state and local governments under the incorporation doctrine, preventing government restrictions on speech. However, this does not extend to restrictions imposed by private individuals or businesses. The Supreme Court of the United States has recognised several categories of speech that are given lesser or no protection by the First Amendment, and has acknowledged that governments may impose reasonable time, place, or manner restrictions on speech.
The interpretation of the First Amendment has been a significant issue in freedom of speech jurisprudence, specifically whether it should only apply to state actors or if it can also be applied to private actors. This includes the right to free speech on private property, such as shopping centres and social media platforms. The Supreme Court is likely to determine the First Amendment classification for social media due to the dispute between the Fifth and Eleventh circuits.
While freedom of speech is a fundamental right in the United States, there have been instances where national security concerns have prompted the government to restrict this freedom. Wars, threats of wars, and perceived risks to national security have, at times, led to the government limiting free speech and other First Amendment freedoms. For example, during World War II, the Office of Censorship suppressed the communication of information of military importance, including by journalists and in correspondence entering or leaving the country. McCarthyism in the 1940s and 1950s also resulted in the suppression of free speech, targeting advocates of Communism and leading to the Hollywood blacklist.
The Sedition Act, passed during the Civil War, was justified by the Federalist Party as a necessary measure to prevent threats to national security from within the country. This Act restricted freedom of speech and freedom of the press, with Union generals taking steps to prevent newspapers from publishing battle plans and aiding the enemy. The Espionage Act of 1917 and the Sedition Act of 1918, adopted during World War I, also infringed on First Amendment freedoms in the name of national security. These laws led to the first Supreme Court decisions on when national security concerns could justify restrictions on free speech.
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Freedom of speech in schools
In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. The First Amendment's right to free speech prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment, including obscenity, fraud, child pornography, speech integral to illegal conduct, and speech that incites imminent lawless action.
While freedom of speech is a fundamental right in the U.S., it is not absolute, and there are certain exceptions and limitations, especially in schools. School officials have wider discretion than other state actors in regulating certain types of speech. For example, they can forbid profane language on campus, censor student speech in school publications, and punish students for advocating illegal drug use. Schools can also censor student speech likely to substantially disrupt school operations, as per Tinker v. Des Moines Independent Community School District (1969). However, the limits on student speech are quite narrow, and students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
The National Coalition Against Censorship emphasizes that the First Amendment can help resolve tensions in schools by protecting the freedom of speech, thought, and inquiry while requiring respect for the right of others to do the same. This includes references to sexuality, profane language, descriptions of violence, and other potentially controversial material, especially in diverse school communities with differing backgrounds, cultural traditions, and religions. The First Amendment requires schools to resort to "more speech, not enforced silence" when seeking to resolve differences.
Students' rights to free speech in schools also extend to their expression outside of the classroom, such as on social media and through their clothing choices. Students have the right to speak their minds on social media, and schools generally cannot punish them for content posted off-campus and outside of school hours that does not relate to the school. Additionally, students have the right to wear clothing consistent with their gender identity and expression, and schools should not require different types of clothing for special events based on students' sex or gender identity. However, schools can have dress codes that meet certain criteria, such as not treating students differently based on gender or forcing them to conform to sex stereotypes.
In conclusion, while freedom of speech in schools is protected by the First Amendment, there are certain exceptions and limitations that schools can enforce to maintain order and respect for others' rights. Students also have rights to express themselves outside the classroom without fear of punishment from the school, as long as it does not relate to the school. Ultimately, the balance between freedom of speech and the need for order and respect in schools is a delicate one that requires constant negotiation and consideration of the rights of all members of the school community.
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Frequently asked questions
Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference, and restraint by the government. The First Amendment of the U.S. Constitution gives everyone residing in the United States the right to hear all sides of every issue and make their own judgments about those issues without government interference or limitations.
In the United States, some categories of speech are not protected by the First Amendment. Categories of speech that are given lesser or no protection by the First Amendment and may be restricted include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, commercial speech, defamation, and hate speech.
The First Amendment's constitutional right of free speech applies to state and local governments. This means that state law cannot ban free speech. However, the First Amendment only prevents government restrictions on speech and does not apply to restrictions imposed by private individuals or businesses.
