Module 3: Freedom of Speech and its Limitations
Freedom of Speech: The First Amendment and its Limitations
Introduction to Freedom of Speech
First Amendment Basis: The First Amendment famously states, "Congress shall make no law abridging the freedom of speech." This sweeping language is interpreted to apply to all government bodies, including state and local governments, due to the Fourteenth Amendment. This application was established in the case of Gitlow v. New York.
Criminal Law Limitation: For criminal law, this means the government cannot criminalize speech or expressive conduct merely because it disapproves of the message. Even if a legislature and societal majority disvalue certain images, ideas, or words, the government generally cannot outlaw their expression.
Scope of "Speech": More Than Just Words
Definition Expansion: The Supreme Court has clarified that "speech" encompasses more than just spoken or written words; it includes expressive conduct or the nonverbal expression of ideas, which is any nonverbal act intended to convey a message.
Key Case - Texas v. Johnson: This landmark flag burning case (where burning a flag is nonverbal but conveys a message) expanded the idea of speech to include expressive conduct.
Other Examples: Wearing armbands, displaying symbols, and even silent demonstrations can count as protected expression if they are intended to communicate an idea. A law criminalizing an essentially expressive act will be scrutinized under the First Amendment.
Free Speech as a Fundamental Right
Strict Scrutiny: The Supreme Court has established free speech as a fundamental right. This means that any governmental attempt to limit it must meet strict scrutiny provisions.
Requirements: To limit a fundamental right, the government must demonstrate both a compelling governmental interest and use the least restrictive means to achieve its goal.
Practical Implication: In practice, very few speech restrictions survive this high bar.
Preferred Position: In America, there is a preferred position of speech, meaning the default is to allow even offensive or unpopular speech rather than restricting it.
Comparative View with Other Liberal Democracies
United States vs. Other Countries: The U.S. generally has broader free speech protections compared to other liberal democracies.
Example - Britain: Researchers in criminal law fields travelling to Britain often delete materials like terrorist political manifestos from their computers because such language/propaganda is forbidden there.
Example - Germany: Germany has very strict prohibitions on hate speech, including expressive conduct. For instance, performing a "Heil Hitler" salute in Germany (e.g., at Dachau or anywhere) is a criminal offense. In contrast, performing this in the U.S. (e.g., at the Holocaust Museum in Washington D.C.) would evoke strong negative reactions but is generally not illegal under First Amendment protections, albeit under "certain guidelines."
Categories of Unprotected Speech
While a fundamental right, free speech is not absolute. The Supreme Court recognizes at least five categories of speech that can be restricted, and lower courts can also impose limitations based on time, place, and circumstance.
Obscenity:
Definition: This involves materials like hardcore sexually explicit pornography that must meet specific legal tests, including lacking any literary or artistic value.
Criminalization: The production and distribution of obscene materials can be outlawed. This is a very nuanced area of law requiring deep study.
Profanity:
Original Intent: Originally understood as the derogatory or irreverent use of terms towards sacred things, such as "taking the Lord's name in vain" (referring to Abrahamic religions).
Application: Deeply offensive language in certain settings can be viewed as outside First Amendment protection, at least in theory, though it rarely reaches the Supreme Court specifically for profanity charges.
Expressive Conduct Example - Guantanamo Bay: Defiling the Quran by interrogators was seen as an unacceptable form of profane expressive conduct, attacking sacred objects.
Libel and Slander:
Definition: These are intentionally false, defamatory statements that harm someone's reputation.
Libel: Printed defamatory statements.
Slander: Spoken defamatory statements.
Protection Condition: Not protected if made with requisite malice or negligence. Intent is crucial.
Legal Nature: Usually civil issues resulting in lawsuits or damages, but malicious defamation can, infrequently, be criminally prosecuted in some states.
Fighting Words:
Definition: Face-to-face provocations, personal insults, and epithets that are likely to incite an immediate breach of the peace. These are considered outside of First Amendment protection.
Key Case - Chaplinsky v. New Hampshire (): Walter Chaplinsky was convicted for calling a city marshal a "g[--] damned racketeer" under a state law prohibiting offensive or derisive names in public. The Court upheld the conviction.
Historical Context: The context of language evolved; such terms were far more offensive in than today. Abusive language laws must be very narrowly defined and cannot be vague.
Clear and Present Danger (Incitement Test):
Classic Quote: The famous quote by Oliver Wendell Holmes about "shouting fire in a crowded theater" illustrates this concept.
Government Power: The government can punish speech that produces a clear and present danger; if it incites immediate lawless action or is likely to produce immediate harm, it is not protected.
Modern Doctrine - Brandenburg v. Ohio (): The incitement test established here criminalizes advocacy of illegal action only if it is intended and likely to incite imminent lawless action.
Requirements: Both intent and a high likelihood of immediate action must be present.
Examples: A general political rant, however extreme or hateful, is protected. However, yelling "Let's burn down that building now" to an angry mob is likely unprotected speech.
Rationale for Unprotected Speech Categories
Lack of Societal Contribution: These categories are unprotected because they do not contribute meaningfully to society or the exposition of ideas.
Outweighed by Harm: Any slight value they might have (e.g., expressing disvalued ideas) is outweighed by the potential for societal harm they impose.
Legal Scrutiny: Criminal laws targeting specific types of unprotected speech are permissible, but they must be very clearly and narrowly defined to avoid legal pitfalls.
Legal Doctrines for Regulating Speech
Void for Vagueness Doctrine: Laws restricting speech must not be vague. They must provide clear, specific definitions (e.g., "obscenity" has a specific legal definition). Vague laws can be invalidated.
Void for Overbreadth Doctrine: Closely related to vagueness, this doctrine ensures that even when targeting unprotected speech, laws are not drafted too broadly. A statute meant to target unprotected speech but which substantially forbids protected speech is unconstitutional because it is overbroad.
Chilling Effect: Overbroad laws can have a "chilling effect," discouraging people from exercising lawful speech due to fear of being targeted.
Example: A law making it illegal to say anything "annoying or rude" in public, while potentially aimed at unprotected speech, could be used to suppress protected criticism, dissent, or protest, making it overbroad and void.
Case Study: Criminal Harassment vs. Free Speech (Commonwealth v. Johnson ())
Facts: William and Gail Johnson harassed their neighbors with a fake obscene website in their name and disturbing messages. They were prosecuted under a Massachusetts criminal harassment statute.
Appeal: They argued their actions were protected by the First Amendment.
Massachusetts Supreme Court Ruling: The court disagreed, stating the First Amendment does not shield "true threats, intimidation, or persistent targeted harassment that has no legitimate purpose." The convictions were upheld.
Principle: This case illustrates that speech crosses the line into conduct that produces distinct harm to specific individuals, at which point the law can intervene. Harassment laws must still be carefully drafted (not vague or overbroad).
The "State Action" Requirement: Private vs. Government Entities
Core Principle: The First Amendment (and the entire Bill of Rights) only protects individuals from the government and government action, not from private entities, private companies, or other individuals.
Private Entity Authority: Private companies are free to set and enforce their own content rules. Social media platforms, for instance, can prohibit hate speech or inciting language because they are private entities, unlike the government.
Key Case - Manhattan Community Access Court v. Hallett (): This case reaffirmed that private entities are not state actors unless they perform functions traditionally and exclusively reserved for the state (e.g., an electricity company).
Case Study: The Jimmy Kimmel Controversy
This case tests the line between private editorial choice and government overreach.
Concepts to Apply:
State Action Requirement: Does the government have a role, or is it purely a private entity (ABC/Disney) decision?
Jawboning/Coercion: Can the government exert pressure or make implicit/explicit threats to private firms to suppress disfavored viewpoints?
Key Case - Bannon Books v. Sullivan () (applied in ): Officials may not use implied threats or regulatory leverage to induce intermediaries to punish a speaker. New York City's financial regulator, Maria Vullo, was found to violate the First Amendment by pressuring banks to cut ties with the NRA because she disliked the organization.
Contrast - Murphy v. Missouri (): This case contrasted with Vullo but was dismissed on procedural grounds (lack of standing) and did not rule on the merits of coercion regarding federal contracts with social media companies.
Unprotected Categories: Even if state action is present, does the speech fall into one of the narrowly defined unprotected categories?
Facts of the Jimmy Kimmel Case:
Incident: ABC (owned by Disney) briefly pulled Jimmy Kimmel Live after he made remarks perceived by some as mocking the use of a child's tragedy by Kirk and the government.
Affiliate Reaction: Some ABC affiliates (e.g., Sinclair, Nexstar) announced they would not carry the show even after reinstatement.
Government Reaction & Pressure: Public statements by an FCC commissioner about potential scrutiny and license issues, alongside broader political calls, contributed to the appearance of regulatory pressure on ABC.
Context: Media companies' licenses to operate come with rules on broadcasting content. The White House stated this was a private company decision, not government sanction.
Reinstatement: Kimmel's program was ultimately reinstated.
Analysis - Applying the Concepts:
Unprotected Categories: Kimmel's remarks do not appear to meet the specific tests for obscenity, profanity, fighting words, or clear and present danger/incitement.
While an argument for libel/slander could potentially be made concerning the government's use of an event, general critiques of the government have a very high level of protection. There was no incitement to violence or direct targeting of individuals in a way that would fit these categories.
Private Editorial Decision Pathway (Likely No Violation):
ABC/Disney is a private company and employer, capable of making private discretionary editorial choices that are not state action.
This aligns with Manhattan Community Access Court v. Hallett, affirming that the First Amendment restricts government, not private entities.
Private companies have broad rights to manage their content and employees (e.g., firing employees for not representing company values, as seen in Mandalorian actor Gina Carano's case or the gynecologist nurses who mocked patients).
Jawboning/Coercion Theory Pathway (Potential Violation):
This would be a violation if government officials were proven to have threatened regulatory consequences (like license scrutiny) to coerce ABC/affiliates into suspending Kimmel.
This would cross the line defined in Bannon Books v. Vullo.
Key Requirement: Liability turns on proving a causal link: official pressure occurred first, and ABC's reaction happened as a result of that pressure.
Challenge: While there was an appearance of government pressure (public statements by officials, tweets), proving actual, direct coercion or a directive is difficult and would require strong evidence beyond public remarks.
Discussion and Clarifications:
Past Actions: Jimmy Kimmel's past criticism of other political figures (e.g., Trump) without suspension complicates the argument for state coercion in this specific instance, though this wouldn't necessarily be a legal precedent in court.
Public Boycotts: Public boycotts (e.g., against Disney+) are protected free speech by private individuals and do not constitute a First Amendment violation against the target of the boycott. The public's decision to withhold money for a company's actions is perfectly lawful.
Consequences for Speech: The First Amendment does not protect individuals from all consequences for their words from private entities (e.g., being fired by a private employer for speech that doesn't align with company values).
Public Space Protests: Protests on public university campuses (like those with religious, anti-LGBTQ+, or anti-women speech) are generally protected, provided they don't disrupt activities, block access, or specifically incite immediate violence against individuals. "Breach of peace" must be very narrowly defined and targeted.
Key Takeaways
Private vs. Government: Private enforcement of brand or editorial standards (e.g., an employer firing an employee for their speech) is not a First Amendment issue.
Government Fingerprints: A First Amendment issue involving free speech and private entities only arises if there is clear evidence of the government's involvement, such as coercion or significant encouragement, in the specific decision to limit speech.
High Burden of Proof: Proving such a case in the court system requires a much higher standard of evidence than mere public perception or speculation. The causal link between government pressure and the private entity's action must be clearly established. The default position remains protecting free speech unless these narrow governmental overreach conditions are met or the speech falls into one of the designated unprotected categories. The difficulty of these discussions is magnified in highly emotional, current political topics, where information may be incomplete, and emotions can hinder critical thinking. Academia faces increasing threats for discussing such topics. However, engaging with complex, unclear-cut case studies like the Kimmel one is valuable for critical examination and respectful dialogue.