Constitutionally-Protected Freedom of Speech
What It Is and What It Is Not
What It Is and What It Is Not
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.
Passed by Congress on September 25, 1789. Ratified December 15, 1791. The first of the ten amendments included in the “Bill of Rights.”
Introduction to this Series
I am a retired educator of all grades from Pre-K through university, but the majority of my public school teaching experience was with middle and high school students. I primarily taught English, Language Arts, History, and Government.
I am not a lawyer, nor do I play one on TV, but my interest in politics and the Constitution began when I was a child: 1) From the age of 5 when my grandmother dragged me with her block after block to register people to vote, and 2) when my 5th-grade class was assigned to memorize and recite the “Preamble to the Constitution.”
In today’s political climate, I have found that many people do not have a clear understanding of the Constitution of the United States, and this collective ignorance is detrimental to our representative democracy.
My goal in writing this series is to help people to understand the Constitution at a layman’s level. The Constitution is the only document that is the law of the land. The United States of America is a republic and a representative democracy. There are powers in the Constitution that belong to the Federal Government and there are powers in the Constitution that belong to the States. This combination is most likely unique to our Country.
I look forward to your fact-based and constructive comments on this story.
What is the Constitution of the United States?
The Constitution is THE Law of the USAmedium.com
What Does the Constitution Mean by “Freedom of Speech?”
Many people in the United States, including many attorneys and high-level government officials who should know better, think that constitutionally-protected “Freedom of Speech” means that except for yelling “fire in a crowded movie theater,” you can say anything you want any time you want to anyone you want without any consequences. That is not what the 1st Amendment protection means.
The First Amendment protects people in the United States against being prosecuted by the government (Federal, state, and local) for most written, spoken, or digitally transmitted statements AGAINST the government.
Generally, the government cannot hold a person liable, either criminally or civilly for anything written or spoken about a person or topic.
Most importantly, the First Amendment does not protect people from consequences by private companies or institutions, which are free to make their own rules and policies for any type of speech they will or will not accept. Those private entities are also free to block or disconnect any person or company from posting on their forums or their platforms anything they do not want there.
One of the biggest issues at the time of this writing is about former president Donald J. Trump and his being blocked by Twitter (indefinitely) and by Facebook (at least again for the next six months). After the January 6, 2021, insurrection and the concurrent storming of the United States Capitol building, Facebook and Twitter had finally had enough. As private companies, they decided that Mr. Trump’s statements and comments on their platforms leading up to the riots were inflammatory, that they encouraged people to come to Washington D.C. to violently “Stop the Steal,” and his continued false assertions (without any evidence) that he actually won the 2020 presidential election (The Big Lie), were so dangerous that they could no longer allow him to “speak” on their networks.
Mr. Trump, immediately following the news that Facebook was extending his ban on that platform, sent out an email that stated in part, “Free speech has been taken away from the President of the United States,” and also called for a “political price” to be paid not just by Facebook, but by Google and Twitter as well.
There are three main problems with the ideas posited in that email:
Mr. Trump is no longer “president of the United States,” and by referring to himself as such continues to spread “The Big Lie” that the last election was fraudulent and stolen from him, and that President Joseph R. Biden really isn’t the legitimate president.
His “free speech” was not “taken away.” Mr. Trump is free to speak any time or anywhere he chooses, just not on Facebook, Twitter (his favorite), or Google. That is the perfectly legal decision of those private companies according to their written and published policies.
In his email assertion about his “rights” being taken away, Mr. Trump did not actually address the decision by the Facebook Oversight Board to take the next six months to review its policies. Instead, Mr. Trump resorted to his typical inflammatory rhetoric and insults AND threatened to make those companies pay “a political price” for doing something he didn’t like. That is exactly the kind of statements that got him in trouble in the first place.
What Is and Is Not Protected by the First Amendment
In a 1969 decision in Brandenberg vs Ohio, the Supreme Court held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” This is particularly important relative to the lead-up to the January 6 insurrection and what was said by Mr. Trump, his personal attorney Mr. Rudy Guilani, and others.
But it is not just Mr. Trump who is mistakenly thinking that because some private companies are restricting him that his “Free Speech” rights are being compromised. Far too many people think that because private companies and institutions can decide on their own who to include and who to exclude, their constitutionally protected free speech rights are being violated.
However, in limited circumstances, the Federal, state, or local government can restrict speech under a less demanding standard when the speaker is in a special relationship with the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. This instance is exactly why and how even the president of the United States can have his or her speech restricted.
The First Amendment applies only to protection from prosecution by the government for speaking against the government about policies, laws, etc. Just because a certain person or group has been restricted from speaking when and where they want to, it does not automatically mean they are being “silenced” or “canceled.”
The Founders, and especially James Madison, the primary author of the Constitution and the Bill of Rights, argued, disagreed, and compromised when coming up with the final wording of the first ten amendments to the Constitution, known as the Bill of Rights. Over the past 245 years, the U.S. Supreme Court has repeatedly ruled on interpretations of the amendments.
But one thing remains clear, the First Amendment Freedom of Speech provision protects only from government prosecution and/or persecution. Everything else is not covered by the Constitution, so it is important to watch what you say, where you say it, and to whom you say something wrong, hurtful, or untrue.
About Me
I am a native Detroiter, a wife, mother, grandmother, business owner, and homeowner, and I am recently semi-retired and loving it. I would love for you to follow me on my Facebook and on my Instagram pages. Any opinions expressed in this publication are my own.
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