Gavin Howe
Freedom of speech is a highly valued right in many countries, but it is not without its limits. While the specifics vary from country to country, there are several types of laws that are commonly used to restrict freedom of speech, including laws pertaining to obscenity, defamation, fraud, incitement, and public order. The interpretation and enforcement of these laws can be complex and controversial, and they often evolve in response to societal changes, such as the invention of the printing press or the internet. Understanding the boundaries of free speech is crucial for citizens to exercise their rights effectively and avoid legal repercussions.
| Characteristics | Values |
|---|---|
| Time, place, or manner of speech | Restrictions on the use of loudspeakers in residential areas at night, limiting demonstrations that block traffic, or banning picketing of people's homes |
| Incitement | Speech that urges a mob to attack or engage in other unlawful conduct |
| Defamation | Defamatory lies, libel, slander, lying under oath, false statements of fact |
| Fraud | False claims, misrepresentation, false advertising |
| Obscenity | Obscene speech, use of offensive words, vulgarities |
| Child pornography | Depictions of children engaging in sexual activity or being naked in a sexually suggestive context |
| Fighting words | Racist insults, sexist, antigay, hostile to religion |
| Threats | True threats, intimidation, harassment |
| Commercial speech | Advertising, telemarketing |
| Speech by government employees | Speech that interferes with the employer's efficiency |
| Speech by students | Speech that advocates illegal drug use, risks disrupting the educational process |
| Speech by prisoners and military personnel |
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What You'll Learn
- Laws against obscenity, fraud, child pornography, and speech integral to illegal conduct
- Laws against defamation, libel, slander, and lying under oath
- Laws against hate speech, racist threats, and insults
- Laws against harassment, intimidation, and unlawful conduct
- Laws against commercial speech, false advertising, and misleading advertising
Laws against obscenity, fraud, child pornography, and speech integral to illegal conduct
The First Amendment to the U.S. Constitution states that "Congress shall make no law...abridging the freedom of speech." However, the Supreme Court has interpreted this to mean that the First Amendment does not protect certain categories of speech, including obscenity, fraud, child pornography, and speech integral to illegal conduct.
Obscenity
The Miller test, established in Smith v. California (1959), defines obscenity as material that "appeals to the prurient interest", "depicts or describes, in a patently offensive way, sexual conduct or excretory functions", and "lacks serious literary, artistic, political, or scientific value". The Court has held that a person can only be punished for obscenity if they know the contents of the material, and private possession of obscene materials may be permitted. Notably, obscene material with serious literary, artistic, political, or scientific value is protected by the First Amendment.
Fraud
Laws against fraud are justified as a valid government interest in protecting consumers from misrepresentation. For example, Madigan v. Telemarketing Assoc., Inc. upheld an Illinois telemarketing anti-fraud law, recognising consumer protection against misrepresentation as a valid government interest justifying a free speech exception.
Child Pornography
The Supreme Court has established that the First Amendment does not protect child pornography, recognising that the production of such materials exploits and harms children. The Court has determined that prohibitions on child pornography that depict actual minors are constitutional as they restrict the expression's production, not the content. The exception for child pornography is distinct from the obscenity exception as it is more specific and does not consider whether the material meets the Miller test.
Speech Integral to Illegal Conduct
The government may restrict speech that is integral to illegal conduct, even if it increases the chance of an unlawful act being committed in the future. However, the government may not suppress lawful speech as a means to suppress unlawful speech.
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Laws against defamation, libel, slander, and lying under oath
Freedom of speech is a highly valued right in many countries, but it is not absolute. There are several types of laws that restrict freedom of speech, including those against defamation, libel, slander, and lying under oath.
Defamation refers to a false statement that harms a person's reputation. Libel and slander are both forms of defamation, with libel being written or printed and slander being spoken. In the United States, to prove defamation, a plaintiff must demonstrate that the defendant made a false statement to someone other than the plaintiff, that the statement was made negligently or maliciously, and that it caused actual damage. Libel laws in the US are based on common law inherited from the English legal system, but the specifics vary across states. While criminal libel laws exist in many states, they are rarely prosecuted.
The First Amendment's guarantees of freedom of speech and freedom of the press provide some protection from defamation lawsuits in the US. The 1964 case New York Times Co. v. Sullivan established that public officials must prove that the media outlet in question knew the information was false or acted with reckless disregard for the truth in order to win a libel suit.
Slander refers to oral defamation, and it often involves false accusations of a crime, imputations of a disease, or statements that injure the plaintiff in their profession or business. Perjury, or lying under oath, is often confused with slander but is a separate offence involving making a false statement in a legal context.
In some countries, blasphemy laws also restrict freedom of speech. For example, defaming Muhammad, the prophet of Islam, is considered a crime in Austria but is protected under free speech laws in France.
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Laws against hate speech, racist threats, and insults
While there is no legal definition of "hate speech" under U.S. law, it is generally understood as any form of expression intended to vilify, humiliate, or incite hatred against a person or group based on race, religion, skin colour, sexual identity, gender identity, ethnicity, disability, or national origin. Internationally, countries like Ireland, Denmark, Finland, and New Zealand have laws prohibiting hate speech.
In the United States, the First Amendment protects freedom of speech, but there are exceptions. Hate speech can be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence against a person or group. The Supreme Court has upheld laws that criminalize or impose harsher punishment for hate crimes when it is proven that the defendant targeted the victim due to their race, ethnicity, identity, or beliefs. Federal hate crime statutes, such as the Shepard Byrd Act, address crimes motivated by the victim's actual or perceived characteristics, including race, religion, sexual orientation, gender identity, and disability.
The Prohibition of Incitement to Hatred Act in Ireland makes it an offence to use threatening, abusive, or insulting language with the intent to stir up hatred based on race, colour, nationality, religion, ethnic or national origins, membership of the travelling community, or sexual orientation. Similarly, New Zealand's Human Rights Act 1993 prohibits inciting racial disharmony by using threatening, abusive, or insulting language in public or publishing such content.
Denmark also prohibits hate speech, defining it as publicly making statements that threaten, insult, or degrade a group based on race, skin colour, national or ethnic origin, faith, or sexual orientation. Finland considers ethnic agitation, which includes threatening or insulting a group based on the aforementioned characteristics, as hate speech and punishes it with fines or imprisonment.
These laws against hate speech, racist threats, and insults aim to protect individuals and groups from targeted discrimination and violence, ensuring that freedom of speech does not become a tool for inciting harm or hatred towards others.
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Laws against harassment, intimidation, and unlawful conduct
Freedom of speech is a highly protected right in many countries, enshrined in laws such as the First Amendment in the US. However, certain types of laws can restrict freedom of speech, including those against harassment, intimidation, and unlawful conduct.
In the US, the First Amendment does not protect certain categories of speech, including obscenity, fraud, child pornography, speech integral to illegal conduct, and speech that incites imminent lawless action. While "hate speech" is not a concept in First Amendment jurisprudence, harassment, true threats, and incitement form the outer boundaries of protected speech. For example, in the case of R.A.V. v. City of St. Paul, it was held that the government cannot impose viewpoint-based restrictions on even bigoted fighting words, specifically in the context of workplace harassment law. Similarly, Title VII of the Civil Rights Act prohibits sex discrimination, and sexually derogatory "fighting words" may violate this provision.
Harassment laws allow the government to suppress speech that it deems harmful and offensive, including not only threats or insults but also political statements, religious proselytizing, art, and humor. This suppression of speech has been argued to be presumptively unconstitutional, as it infringes on the protections guaranteed by the First Amendment.
In the context of educational institutions, universities like Stanford abide by the Civil Rights Act of 1964, which prohibits unlawful discrimination based on race, colour, and national origin, as well as the Education Amendments of 1972, which prohibit discrimination based on sex. Speech or conduct that meets the legal standard for harassment based on these protected characteristics should be reported and addressed. Additionally, content-neutral time, place, and manner restrictions, such as the Campus Disruptions Policy, can also limit free speech on university campuses without violating the First Amendment.
The US government also has broad powers to restrict the speech of military officers and lawyers, even if such restrictions would be deemed invalid for civilians. Furthermore, the government can bar non-citizens from entering the country based on their speech, even if it would be protected under the First Amendment if uttered by a citizen.
While freedom of speech is a fundamental right, various laws exist to prevent harassment, intimidation, and unlawful conduct, demonstrating that there are limits to what can be said without consequence.
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Laws against commercial speech, false advertising, and misleading advertising
Commercial speech, such as advertising, has fewer protections than other forms of speech. For example, false advertising can be punished and misleading advertising may be prohibited. Commercial advertising may be restricted in ways that other speech cannot, as long as a substantial governmental interest is advanced, and such restriction supports that interest as well as not being overly broad.
The Federal Trade Commission (FTC) enforces truth-in-advertising laws, ensuring that ads are truthful, not misleading, and, when appropriate, backed by scientific evidence. The FTC pays close attention to advertising claims that can affect consumers' health or finances, such as claims about food, over-the-counter drugs, dietary supplements, alcohol, and tobacco. The FTC also monitors and writes reports on the marketing of alcohol and tobacco, especially during the COVID-19 pandemic, when it sent warning letters to companies that may have been violating the FTC Act.
Courts have struck down many attempts to regulate commercial speech, upholding protections for legal and medical advertising as long as the information can be verified as truthful and legal. For example, in Bates v. State Bar of Arizona (1977), the Supreme Court struck down Arizona's attempt to ban lawyers from advertising their pricing, arguing that there were better ways to maintain professionalism among attorneys, such as punishing them for actual misdeeds. However, the court did uphold a ban on ads that make unverifiable claims about the quality of a lawyer's services, such as calling oneself an "expert," as these are more likely to be misleading.
The Commercial Speech Doctrine holds that a state may totally prohibit misleading advertising and may impose restrictions if the particular content or method of advertising is inherently misleading or if experience demonstrates that the advertising is subject to abuse. Lawyer advertising, as a form of commercial speech, receives a level of constitutional protection that is above unprotected speech (e.g., false, deceptive, or misleading statements) but below that of completely protected speech (e.g., political statements).
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