James Spillane“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 saying 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. You can be fired, lose a professional license, or face a range of litigation for doing or saying things that, while they may be protected speech, violate other laws or contracts.
Also, the First Amendment does not protect all kinds of speech. 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.
In addition, there are seven broad categories of speech (which includes things written or published online or in social media) that may not be protected by the First Amendment. Knowing what they are, so that you can decide what risks you are willing to take, is just good sense.
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.
Inciting Violence
Speech that incites violence or encourages the audience to commit illegal or dangerous acts. This is a gray area that has resulted in many kinds of litigation. 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.
Supporting Terrorism
The Patriot Act outlawed “material support” to domestic or foreign terrorist groups, even if that “support” intends to offer peaceful alternatives to conflict through humanitarian aid. For more information on this sensitive and rapidly changing topic, check websites such as The Center for Constitutional Rights or Wikipedia.
Public Employee Speech
Public speech made in the conduct of their duties by public employees may not be protected. 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 (usually) distinguishes between what an employee says as a private citizen, and statements made as part of the person’s job responsibilities.
Your employer, however, may 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. And if you work in a regulated industry such as insurance, financial services, banking, health care, pharmaceuticals, or education, you must be aware of an alphabet-soup of regulations such as FINRA, HIPAA, FERPA, MIPPA, NAIC, plus SEC, FTC, and FCC rules.
Some regulations, notably FINRA and FERPA 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.
Defamation
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). Defamation can be a criminal offense in some countries.
The case of blogger Nik Richie, who is facing millions in damages for defamation over what readers said in the comments section of his gossip blog, points out just how serious the consequences may be in this arena.
There are two kinds of lawsuits that sound similar to defamation when you try to describe them in layman’s terms, but they are based on different legal principals and apply to companies and products. These are product disparagement and tortious interference. Once rare, defamation, product disparagement and tortious interference lawsuits are becoming increasingly common.
Intellectual Property
Publishing confidential, trade secret, or copyright material may be a civil or criminal offense, depending on the nature of the intellectual property that is being published without permission, and the jurisdiction in which the offense occurs. 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 whistle blower 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 whistle blowers — and it doesn’t exist everywhere.
True Threats
True threats are 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. Any online comment that could be construed as a terrorist threat, for instance, is likely to be treated as a true threat.
For example, in 2010, Deer Park Middle School in the Round Rock Independent School District, near Austin, Texas was evacuated and the FBI called in after a teenage Facebook user in Saudi Arabia made a bomb threat after a girl at the middle school “unfriended” him. The teenager — whose identity is protected because he is less than 17, and a minor under Saudi law, is facing tough questions from Saudi and U.S. officials under the “true threat” doctrine.
In other cases, courts have ruled that in order to be a true threat, very specific circumstances must exist. 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.
For more on the subject of laws that affect social media users, check these articles:
- Exercise Your Free Speech Rights — or Keep Your Job?
- 5 Easy Ways to Beat Social Media & Blogging Lawsuits
- Don’t IM Your Way Into a Lawsuit
- 7 Costly Copyright Myths
- What To Do If You Get SLAPPed
Disclaimer: I am not an attorney. Nothing in this post or any article linked to in this article purports to provide legal advice. Always consult competent legal counsel before making decisions about your actions and conduct.
This article was written for Business 2 Community by James Spillane.
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You provide great examples of the pitfalls of the First Amendment and Free speech. These have become very complex, but you provide very little in the form of what is possible. To some extent you have left very little room in you discussion for what it does protect. Wouldn’t a balanced argument help others make even better decisions about this subject.
I hoped by including links to other articles and sites that discuss the subject in greater detail to help people decide for themselves what risks to take.
You’re exactly right that I didn’t address what is protected in great detail, for the simple reason that protected speech depends on so many variables: context, jurisdiction, subject matter, how the comment is worded, etc.
If there is a single, short sentence that says “you can say this without a problem, but not that”, I have not read it, and I am not capable of writing it. I think it would take a Constitutional lawyer to do it — and if one has, and anyone can send me a link to such a book or article, I’ll buy it today.
Each of the separate topics is worth a whole chapter in a book, and to keep the post short enough to be readable as a blog post, I did skirt over many issues.
Thanks for the great comment — and for pointing out that the missing piece is what is protected.
Best regards, Deb
We have the right to speak, as did Private Manning. We also have the right to go to jail for speaking wrong (as they say Private Manning may do).
What should be a crime – is for Politicians to lie.
Now wouldn’t that be an interesting “free speech” debate!
As the Roman poet Juvenal said 2,000 years ago, Quis custodiet ipsos custodes? Who will watch the watchers, indeed. Thanks for taking time to comment!
Thanks for this article. I speak on this topic a lot and have found that far to many employees misunderstand the first amendment and are surprised to learn that there are limitations to their speech, if they want to stay in good standing at work and possibly even keep their job. For organizations that have privacy implications to what their employees share about work they need to address this topic and many other social networking pitfalls with their employees.
Thanks, Matt — I’d love to talk with you more on this subject for a piece I have coming up in a major magazine. If you’d like to chat, please email me at [email protected], and let’s connect.
thank u you are like the only person to help me do this project everyone just talk about nothing
Thanks for the kind words. I’m glad you found this piece useful! It’s so easy to find yourself in trouble at work or school because we don’t always understand that there have always been limits on what we should and shouldn’t say or write.
We ran into this at our house recently, when our 10-year-old sang an impromptu solo at lunchtime. He’d heard the song at the gym where his circus troupe rehearses — they juggle to the tune — and had no clue that the lyrics would be considered inappropriate for school. He protested his First Amendment right to free speech, and wound up with 7 days of “community service” instead of the three days the principal originally assigned. So you’re never to young to learn the limits, I guess!
Regards, Deb
Thanks for the article, Deb. It’s a great start to my research on the topic for a small paper I am writing. Also, thank you for providing the additional articles.
Vicky
I’m glad you found it useful, Vicky. This is one of those topics that deserves a book, and I’m sure you’ll find much more detailed information elsewhere. This was just a kind of summary or round-up of the major topics. Best of luck on your paper!
Would stomping on the American flag be covered under the first amendment?
The U.S. Supreme Court ruled in 1989 in a case called Texas vs. Johnson that burning or stepping on the U.S. flag as part of a political protest was protected free speech under the First Amendment. I am not a lawyer, and I do not know if that ruling protects all of the times someone could “stomp on” the flag, or if it must be within the context of a political protest instead of some other situation like a music performance.
I am a newly formed business (LLC). I had to let a contractor go for threatening myself and stating that he was going to “bring my company” down. He states he has 1.4 million listeners and followers on twitter and podcast. Friday, August 21st, 2015 my company was holding a web conference meeting online, in which one of my contractors sent him a link (emails contain a proprietary information, statement enclosed on all emails) to the ex contractor and he ended up posting it on his tweeter page encouraging everyone to join and support him. We had the meeting, he showed up and in a meeting room full of contractors he made some threats and also disrupted the meeting. I had to end the meeting. He has posted copies of email information that was meant for him from company. Is this protected under the 1st amendment? This guy has done this to other companies and caused a big stir. He has sent me email after email in which he sends out to people who have never been associated with the company. ( from his 1.4 million) so I am dealing with people emailing me using curse words and threats.
This article is full of inaccuracies. Even The Justice’s ruling is errant. For example, a Corporation that offers the public to trade stock, is subject to the same requirements as a government agency in so far as restricting speech could unfairly influence trade and commerce with the Corporation and its’ shareholders. Censorship in the USA is and has been illegal. The many rulings of the courts involving censorship cases uphold this concept.
Here’s your fatal flaw in the assessment.
You & others think that our RIGHTS originate at the pleasure of the Gov’t so there is a written protection via the bill of rights afforded us to protect us from the bully of Big Gov’t….however that is not the case.
The “Case” is?? that the RESTRICTION upon tyrannical encroaching upon our GOD GIVEN RIGHTS (Remember JFK’s Speech about where the rights of Man come from…clue: it’s NOT from the hand of “Gov’t”) by “Gov’t” is merely a precedent & example to be carried through to each & every OTHER “Big BOX ORGANISATION” that may or may not have arisen henceforth the outlining of the Bill of Rights……& therefore in like-wise form & fashion?? Apply not only to the Gov’t but any & all OTHER “Legal Fictions” or “Corporations” formed/Fashioned by a person or group of persons for whatever endeavour they create the enterprise to pursue….be it “Governance” or “Profit”.
If “RIGHTS” Come from the Hand of GOD & not from any one else?? Then they are fully inherent in the individual person & NOT to be infringed upon in any manner by a Private or Public “Big-Box Bully”…..why?? Because “Rights” are inherent to the person….& until they are dolled out or substantiatedly & demonstrably bequeathed by some other creature besides the individuals “GOD”?? They are not subject to being marginalised, minimised, managed, curtailed, or infringed upon in any manner, method or man Private or Public PERIOD.
Is listening to news and talk radio (broadcast) protected under the first amendment at the work place? If others can pick what they want to hear on their radios shouldn’t I be able to?