The Limits of Free Speech

You may have a right to free speech, sometimes.

The U.S. Bill of Rights is a document that outlines restrictions upon government regulation. It provides the people of the United States with many protections, the first of which is the freedom of speech. The 1st amendment states:

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 gave protection to individuals and organizations such as the Klu Klux Klan and Anti-Semitic groups as they had the same right to express their thoughts just like any other person in the U.S. While the verbiage of the amendment sounds very absolute, courts over the years have interpreted the meaning of this amendment to not be of an absolute nature and have placed some speech as unprotected.

Many of us have heard that old adage that says you can’t scream fire inside of a movie theater. First off if you’re in a movie theater and there is a fire please scream fire at the top of your lungs so people know to evacuate. This is perfectly legal. It becomes illegal or unprotected speech if there is no fire. This is rooted in the Time Place and Manner (TPM) test established from multiple Supreme Court Cases in the 20th century.

One of the earliest mentions of the concept of time, place, and manner restrictions was set into precedent in 1965 in the case of Cox v. Louisiana, where Justice Goldberg, in his opinion wrote

“From these decisions, certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.”

From this, the United States Supreme Court doctrine of time, place, and manner restrictions emerged. However, this opinion is vague and did not set up a legal test to measure speech regulations. Court cases arose regarding speech in the school setting, however, this article does not cover those cases in depth. Examples are Tinker v. Des Moines Independent Community School District (1969) and later in 1988 in Hazelwood School District v. Kuhlmeier. Not accounting for school-related case law It would take another seven years after Justice Goldbergs test for TPM was originally established. for this to be better defined in another court case.

In another case, Grayned v. City of Rockford (1972), the court established the first definition of TPM. In a unanimous decision of 8–1, the court found in this case that an anti picketing ordinance was a violation of the first and fourteenth amendment (A noise ordinance was also on the docket in the case, but that was upheld). Justice Warren Burger stated in the court opinion that

“The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”

It was not until the year 1989 that the Supreme Court further defined the TPM test in Ward v. Rock Against Racism. In this case, the court found that a city had a substantial interest in limiting excessive noise and the regulation was a violation of the first amendment. This led to the establishment of precedence regarding the legal test for speech protection.

Justice Kennedy, in his Opinion of the Court, laid out specific guidelines on how to measure free speech regulation under strict scrutiny (meaning the government needs to have a really good reason to enact a law prohibiting a type of speech). The court set up a 4 part test to establish when the government can regulate speech:

1. The regulation had to be content-neutral.
2. The regulation needed to be narrowly tailored.
3. The regulation needed serves a significant governmental interest.
4. Regulations must leave open ample alternative channels for communication.

With the strict scrutiny test established, there was precedence for courts to review cases regarding free speech and the protection thereof. This easily upheld the right of the people to speak or write about anything without the government regulating speech. Other cases, including Grayned v. Rockford (1972), Heffron v. International Society for Krishna Consciousness, Inc. (1981), Madsen v. Women’s Health Center (1994), and recently Hill v. Colorado (2000) further defined the TPM precedence within the courts.

Free speech is further unprotected when it comes to hateful and violence-inducing speech. The courts have determined that speech that incites imminent lawless action is speech that is unlawful. Originally upheld by the Clear and Present Danger test in the courts established in Schenck v. United States (1919), the case Brandenburg v. Ohio (1969) overturned this test. Current case law now tests hate speech against the imminent lawless action test. This test has since been overturned by the imminent lawless action test established in Brandenburg v. Ohio (1969).

This test was named the Brandenburg Test after the 1969 case (also known as the imminent lawless action test, the courts established three distinct elements of this test

1. Intent to Speak
2. Imminence of Lawlessness
3. Likelihood of Lawlessness

These elements provide the current standard for scrutiny when it comes to speaking in public. Essentially, speech is not protected if it is reasonable that the speech has the intent and can cause acts of lawlessness.

Americans tend to think that all speech is protected regardless of the content and context of the speech in question. This is far from the truth as the Supreme Court has laid out multiple rules or tests to judge the legality of speech as discussed in this article. As it turns out free speech does not actually mean 100% free speech. You can see in the cases argued above that the court has recognized the societal deviance that speech can cause.

We see the exercise of free speech every day with election fraud claims, racial slurs, anti-Semitic propaganda, and other hate speech that is very prevalent in our society today. We are experiencing a huge partisan divide that is fueled by free speech. The very partisan divide that the first president George Washington warned the nation about in his farewell address in the wake of significant disdain for his foreign policies and Office of the Presidency.

“However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”

Now that you are armed with knowledge that most people don’t have regarding the first amendment you can identify when you’re speech is protected or not. This is critical if you want to publish or speak in public as not knowing you’re right could land you in a lot of trouble.