Free Speech

Hiding Behind The Shield From Criticism

If you are a user of social media and are of the belief that you have a right to "free speech" you should read this article. Most people are not completely aware of the implications of speaking openly in social media or for that matter in public.

You may be surprised at what you do not know about your rights as given in the U.S.A. First Amendment to the Constitution or that it might affect you as a foreigner who is speaking on a site located in the U.S.A.

While most articles on this site are of a global issue, this topic is mainly USA-centric due to the topic of the First Amendment the USA Constitution. However, freedom of speech is a global issue.

The truth is, what your freedom of speech is and where it applies is actually very simple, but our understanding of it has been distorted, mostly because people use "free speech" as a weapon where it doesn't really apply, and often as a shield to hide behind when they're being criticized. Even so, free speech has never been a more valuable right as individuals all try to control their image and what people say about them.

There are plenty of ways to exercise your speech freely, but first, let's brush up on our USA civics:

What the First Amendment Really Says

The first amendment to the Constitution says:

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.

This amendment (and all of the other amendments to the Constitution) were added because the Constitution itself, according to its drafters (and the states, which had to ratify it), didn't offer enough protections for the civil liberties from the powers of government. This is very important: freedom of speech, along with the other freedoms in the first amendment, are designed to protect the liberties of the populace against an oppressive government that would seek to squash those rights in its own self-interest.

Private entities such as individuals and businesses, however, are largely not required to protect your speech, and the first amendment does not protect what you say—only your right to speak. This means that you can say what you choose, but the nature of free speech is that others are free to say what they choose as well, even if it means disagreeing with you or mounting a campaign of people to respond to you. Keep these points in mind as we discuss how your freedom of speech plays out.

Slander

Slander, when used a noun legally means oral defamation, in which someone tells one or more persons an untruth about another which untruth will harm the reputation of the person defamed. So, while many believe that they have the "right" to say whatever it on their mind, this is one are where the misguided definition of "free speech" can create a civil lawsuit against the person that has defamed another and end up in the poor house.

Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements such as an untrue accusation of having committed a crime, having a loathsome disease, or being unable to perform one's occupation are treated as slander per se since the harm and malice are obvious, and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much if not more than printed publications.

Other words that are used in describing slander that are deserving of study for free speech advocates are abusive language, accusation, aspersion, calumniation, calumny, censure, character assassination, damaging report, defamation, defamatory words, denigration, denunciation, disparage, execration, false report, imprecation, insinuation, libel, malicious report, malign, obloquy, reproach, revilement, scandal, scurrility, slur, smear, stricture, tarnish, traducement, and vilification.

Some associated concepts are: malice, publication of defamation, slander of title, slander per quod, and slander per se.

You can be sued for slander. However, there are different types of rules for different types of defamation targets. Generally speaking, the more well-known you are as a public figure, the less protection you have against defamation.

Free Speech and Censorship

Earlier in our nation's history, most towns and cities had a "public square" at the heart of a community where people could meet, discuss, and hear the news and issues of the day. It was usually the place where officials made proclamations, candidates spoke and stumped for votes (directly analogous to today's "town hall" meetings), and in general where the people could gather and speak freely. Those public squares have all but disappeared, and while there are still town halls and other public spaces for speech, the true heart of most communities today are private places of commerce or entertainment (malls, stores, stadiums.)

Today, most of us turn to the internet because the tools are free and available: Twitter, Facebook, Reddit, newspapers, blogs with comment sections, forums, they all offer one-click methods for us to speak our minds if allowed to commit. However, when you leave a comment on a company's Facebook page, post to a Reddit thread, or tweet your grievances, you're speaking in privately owned spaces. This means you should have no expectation that your speech is somehow protected beyond that service's terms of use. That said, when it comes to freedom of speech on the internet, there are two truths that are almost universal:

  • Most spaces on the internet are privately owned, and the owners of these spaces have no obligation to allow you to speak freely in their space. Whether it's Facebook removing content that violates its own terms of service, a blog owner deleting a comment they find offensive, or a big company deleting user posts from its Facebook page, your speech may be censored, but you have no first amendment right to free speech in those places. This includes our discussions on This Week I Learned — we've always held this community up to high standards, and if you start a discussion we find isn't up to those standards, we reserve our right to dismiss it.
  • Most owners of private spaces and businesses know it's in their own best interest to allow you to speak freely on their platforms. When you hear any business owner say "we support/stand for freedom of speech," what they really mean is that by honoring your freedom of speech, they know they can successfully build a community, attract users, attract views, as well as perhaps attract advertisers, and make money. They may truly value free speech, and most companies know that success means taking the bad with the good, but that doesn't make it your right. They just know it's in their best interest to say they value it, and act accordingly.

While "censorship" can apply to any type of speech suppression, censorship in the context of "free speech" is generally reserved for speech that's suppressed by government or state actors. A company deleting your post on their Facebook page about how their product was a waste of your money, even if you think the post was relevant or witty, is not state suppression of your speech. It may be censorship, but your freedom of speech has not been violated.

Remember this when you speak on the internet. While Facebook and other social sites may feel like the new "public square," they aren't. This means your speech is not constitutionally protected unless specified in the terms of use for that service, and those can change at the whim of the service or platform provider. Plus, governments know that they can lean on companies to change their rules and restrict private speech as well, regardless of whether they can do it in public. All isn't lost though—some speech is protected, and there are places where you can say what you choose.

Finally, it is constitutional for the government to censor some speech if it would severely compromise national security—particularly during a time of war.

Is Speech on the Internet Protected?

That's a difficult question, but the short answer is NO! Legal challenges abound on this topic, many of which attempt to define what's protected in an era the line between public and private is blurred and the vast majority of people treat the internet like a public space. For example, some argue that clicking "like" is protected speech because of its public nature, and others argue that your tweets and blog posts are protected speech. To date, most courts have come down on the side of "use a private service, you're subject to their rules and moderation."

Remember when we noted that freedom of speech doesn't stop others from speaking out against you? This point is important too: too often on the internet "freedom of speech" is used as a defense mechanism to deflect criticism, when in reality it was framed in order to promote self-policing and self-criticism of communities and governments by the people. In short, freedom of speech means everyone gets to speak publicly, whether they agree or disagree with you. If you speak your mind (in a public space) and find a group of people shouting back at you, your rights aren't being trampled, you're just unpopular—and all of you have the right to speak.

Just remember that when you speak out in such a way that slanders another individual, company, or product you may indeed be opening up the opportunity for them to bring a civil suit against you in a court of law. And, there are limited instances where speaking your mind is a crime for which you may be indicted, such as in threats against others, politicians or law enforcement officials.

Freedom of speech is definitely more complicated than "I can say what I want where I want to," depending on where you are saying it and and what you're saying. For instance, on the Internet, you may be logged in from a computer in France, but to a site that is located in the USA. You are "speaking" on USA soil and in some instances may be taken to court for either civil or criminal charges.

Public Spaces

There are certainly some instances where your freedom to speech can be limited or banned by the government. While you may believe that what are often mistaken for pubic spaces such as sidewalks, the streets, and government buildings, they are not actually public at all. There are police and guards that will stop you from speaking openly and if you resist you may be arrested.

Obscenity

Under First Amendment constitutional analysis, obscenity is not protected speech and you can be arrested for obscenity. However, you have to meet a very long list of requirements in order to have something labeled as obscenity. One of the requirements is the speech in question must not have any social, political, artistic, scientific, etc. value at all—which is tough for a jury to find even if it the video in question is a compelling video.

Incitement

There are rules against incitement of violence or panic, which you can find in Brandenburg v. Ohio. On the other hand, this legal test probably does say that you can be arrested for shouting "Fire!" in a crowded theater.

Hate Speech

Although hate speech can technically be subject to government regulation under the Constitution, the courts have generally taken a broad reading of the First Amendment in these instances.

Sexual Harassment

It may be that the words that you speak are of a nature that can bring about a civil lawsuit. For example, a boss who says, "Have sex with me or else you're fired," is engaging in speech of a sexual harassment nature. He can be penalized for saying those words through civil suit.

Use of Ideas Theory

It is important to note that the First Amendment was originally set up under the "use of ideas theory". Basically, the idea was that popular opinions would gain social currency while unpopular ideas would be driven out of use and fall into disuse. Thus, it is up to each of us to vocally drive out unpopular ideas from use of ideas in order to keep the system working. This fact has become lost in the whole, "Respect everyone's ideas," idiocy that's gone around. It is literally up to us to criticize people who spread ideas we find disgusting to the point that it becomes a stigma to hold those ideas.

As such, most people who argue that they have the freedom of speech to say whatever they want to be completely misguided about the meaning of free speech. Namely, that free speech is partially about the brutal and vicious destruction of terrible ideas through public humiliation and criticism.

The First Amendment is supposed to apply even to infringement on free speech by businesses and private citizens, especially if that infringement on free speech is done by threatening another person with physical injury, loss of job or death.

In short, yes, you can say a whole lot; however, it is inaccurate to say you can say anything you want.

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