Someone saying they can say whatever they want, post whatever they want and no-one can do anything to them. As if the First Amendment is their sword and shield. And you can’t do anything about it. Freedom of speech. Three words that get thrown around and written about so often that what the expression means is more about misinformation than truth.
And misinformation can be detrimental to online professionals as they try to separate the wheat from the chaff and understand a right so important to the foundation of the United States that the founding fathers made it the first amendment to the Constitution to better clarify what rights belong to its citizens.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Source: First Amendment, U.S. Constitution
In 1996, in the landmark case Reno v. ACLU, a unanimous Supreme Court specifically extended the First Amendment to written, visual and spoken expression posted on the Internet. For those of us who work in an increasingly online environment, more and more we’re seeing behavior that would never fly in the “real world.” Social psychologists are having a field day picking apart tweets, status updates, and social network posts. As you’ve likely seen, people will say anything! Justified or not, the fact is many people feel safe in their cocoon of online anonymity. Of course, the First Amendment doesn’t give us the right to say whatever we want, whenever we want, to whomever we want. But that doesn’t stop people from thinking otherwise.
“Speech” Is More than Written or Spoken Words While the dictionary definition of speech may be limited to the written or spoken word, we’re really looking at types of expression. This applies to visual interpretations, as well as artistic forms of speech. In addition, symbolic speech—symbols that have meaning (for example, a swastika or peace sign)—is covered by what we often refer to as freedom of speech.
What Speech Is Protected by the First Amendment? The right to free speech means that you are allowed to express yourself without interference or constraint by the government. And while that seems very broad, the U.S. Supreme Court has been involved in this debate for nearly a century and has determined that the government can limit both the content of speech and the ability to engage in speech as long as the government has a “substantial justification.” It’s nearly impossible to create a list of what types of speech are protected because there are quite a few caveats, and “it depends” would be tacked onto the end of each enumerated list.
Take advertising, for example. Advertising is a type of commercial speech. Commercial speech is a specific type of speech afforded First Amendment protections. It has been defined by the Supreme Court as speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character. However, the FTC and the FCC are both permitted to restrict certain types of advertisements. They restrict those that are misleading or deceptive or use profanity, racial slurs or nudity. Clearly, the FTC and FCC are both arms of the government. Advertising (“Commercial Speech”) is then protected speech, sometimes.
What is NOT Protected Speech? Fortunately, the U.S. Supreme Court over time has created a number of categories of speech that are not afforded protection. What this means is that these types of speech are subject to prohibitions.