“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.”
These 45 words make up the complete First Amendment to the U.S. Constitution. For many of us, they are the most important words ever strung into a complex sentence, because they’re the foundation for the unique American way of life.
Originally, First Amendment protections applied only to laws passed by the U.S. Congress, but since 1925 (Gitlow v. New York, 268 U.S. 652), they’ve applied to the rules set by government at any level — federal, state, and local. The founders obviously intended that the First Amendment be a broad, sweeping statement of the rights they wanted to secure for themselves and their descendents.
But the First Amendment can’t protect Internet and social media users who forget that the free speech guarantee isn’t a free pass to say whatever you want without facing consequences. That’s because while the First Amendment protects some kinds of speech (that is, you can say or do it), there’s no requirement that other people (such as employers, fraternal organizations, or schools) have to associate with you once you do. And the First Amendment does not protect all kinds of speech.
The First Amendment Does NOT Protect…
The information below is drawn from published references. I am relying on the original source for the accuracy of the information, and you should not rely on this blog post if you are wondering if a particular kind of speech is protected by the first amendment. You should consult a licensed attorney to answer specific questions about what you can and can’t legally say online or in any other venue.
- Hate speech. OK, it protects it sometimes — and sometimes it doesn’t. For example, the Supreme Court ruled that Westboro Baptist Church’s hateful protests at military funerals are legal — while most “fighting words” are not. A Jehovah’s Witness went to prison for calling a police officer a “God damned racketeer”, a teenager was jailed for burning a cross, and Hustler paid damages to a preacher over a parody labelled as such in the magazine.
- Speech that incites violence or encourages the audience to commit illegal or dangerous acts. This is another gray area. A radio station tried to claim First Amendment protection when two cars chasing a station car carrying prizes forced a third car off the road, killing the driver. But the courts said that reckless driving was the foreseeable result of the station’s broadcasts. In another case, chat room conversations that encouraged suicide were also denied First Amendment protection.
- “Material support“ to domestic or foreign terrorist groups, even if that “support” intends to offer peaceful alternatives to conflict through humanitarian aid.
- Public speech made in the conduct of their duties by public employees. Richard Ceballos was a LA County Sheriff’s Deputy whose grievance went all the way to the U.S. Supreme Court to clarify a key point that many social media users should know by heart: the law distinguishes between what an employee says as a private citizen, and statements made as part of the person’s job responsibilities. Your employer, however, does NOT have to make any such distinction. In many states, you can get fired for making statements as a private citizen that your employer finds objectionable. Some regulations (such as FINRA, HIPAA, FERPA, and SEC rules for insurance, financial services, health care, education, and brokers) make no distinction between what a person says as a private citizen and what they say as part of their job. So this is an area that each social media user should understand as it relates to their own profession.
- Slander, libel or defamation. There are many, many nuances here — and the rules are different depending on whether or not the injured person is a public or private figure. Context matters, too, and so does whether the words used are an opinion (usually, but not always, protected) or factual statement (not protected unless the facts are provably true — and proving the truth is often far more costly and difficult than you might think).
- Publishing confidential, trade secret, or copyright material. I’m not going to even attempt to discuss this in any detail, because the rules are just too complex. But remember that non-disclosure agreements, employee policy agreements, and contracts apply online and off. Yes, there are whistleblower statues in some states that will protect an employee who goes public with otherwise protected information because of a threat to public health or illegal activity. But there is no absolute protection for whistleblowers — and it doesn’t exist everywhere.
- True threats. Like many other areas of First Amendment protection, context, target, and intent matter in determining what is or is not a true threat. Some threats are always illegal — any threat to the President of the U.S., for example. Check out Stanford University’s The Nuremberg Files for a detailed account of the case in which over 200 doctors sued a website which published “Wanted: Dead or Alive” posters with the photos and home addresses of doctors who performed abortions, with details about the doctor’s families (such as the school their children attended, where their spouses worked, and what kinds of cars they drove). The doctors said that the wanted posters constituted a true threat — and two murders were attributed to the campaign. (One doctor murdered at church, another at home.) In this case, the Supreme Court ruled that the First Amendment protected the website and its wanted posters. In other cases, felony and anti-terrorism charges have resulted from less direct threats.
Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Other areas that are not protected include solicitation, child pornography, and obscenity.
Last, but not least, a corporation or someone acting on behalf of a corporation, and members of certain professions, may not violate the rules and regulations that apply to corporate advertising, sales literature, public appearances, or offers. The rights discussed in this article generally apply to individual American citizens, not corporate entities. If you work in certain professions such as medicine, education, financial services, banking, insurance, or securities and some other fields, there may be other restrictions on what you can and can’t say online. Check with your industry association or a licensed attorney for details.
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Disclaimer: I am not an attorney. Nothing in this posting or any other section of this blog purports to provide legal advice. Always consult competent legal counsel before making decisions about your actions and conduct.