The Limits of Free Speech When Referring to a Person in the US

Freedom of speech is a cornerstone of democracy, but its boundaries are not absolute. In the United States, the First Amendment safeguards this right, subject to certain limitations in specific contexts. This article explores the boundaries of free speech, particularly when referring to individuals, and discusses legal restrictions like defamation, threats, fighting words, and the controversial areas of obscene and hate speech.

Understanding the First Amendment

The First Amendment to the US Constitution states that Congress cannot make any law abridging the freedom of speech or the press. However, these protections do not apply to the government's action alone; they also extend to private individuals and organizations. This means that while the government cannot jail, fine, or otherwise impose civil liability based on speech, private entities like employers, colleges, or property owners can.

Supreme Court Interpretations of Free Speech

The Supreme Court has broadly interpreted the term "speech" to cover a wide range of forms, including traditional ways like talking, writing, and printing, as well as modern forms such as broadcasting, Internet use, and other forms of expression. Symbolic speech, such as displaying flags, burning flags, wearing armbands, and burning crosses, is also protected under the First Amendment.

Categories of Restricted Speech

Defamation

Defamation involves false statements that damage a person's reputation. These statements can lead to civil liability and even criminal punishment, especially if the speaker deliberately lied or knew the statements were likely false. The case New York Times v. Sullivan (1964) is a landmark decision that established the first amendment's protection for the press, even amidst defamation claims.

True Threats

True threats, such as "I’ll kill you if you don’t give me your money," can be punishable under the law. The Supreme Court ruled in Watts v. United States (1969) that the First Amendment does not protect explicit threats. However, government protection measures for threats must be proportionate and necessary.

Fighting Words

"Fighting words" are face-to-face personal insults that are likely to provoke violence. In Chaplinsky v. New Hampshire (1942), the Supreme Court ruled that such speech can be restricted. However, this does not apply to political statements that provoke passersby to violence, as demonstrated in Cox v. Louisiana (1965).

Obscenity

Obscenity, such as hard-core sexually explicit pornography, is not protected by the First Amendment. The 1973 case Middle Bro. Co. v. United States (later known as Miller v. California) defined obscenity, which involves depictions that lack serious literary, artistic, political, or scientific value. However, in practice, the government rarely prosecutes online distributors of such material.

Child Pornography

Child pornography, which involves photographs or videos of actual children engaged in sexual conduct, is punishable. Permitting such materials would create an incentive to sexually abuse children. The case New York v. Ferber (1982) upheld this law, which has broad support due to the protective nature of the content.

Commercial Advertising

Although commercial advertising is constitutionally protected, speech advertising a product or service is subject to some regulation. The government may ban misleading commercial advertising but cannot generally ban misleading political speech, as ruled in Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976).

Government Restrictions on Speech

Government Employees and Students

The government can restrict speech under less demanding standards when the speaker is in a special relationship to the government. For instance, the speech of government employees and students in public schools can be limited if it is incompatible with their status as public officials or students. A teacher in a public school can be punished for encouraging students to experiment with illegal drugs, and a government employee with access to classified information may be prohibited from disclosing that information.

In Pickering v. Board of Education (1968), the Supreme Court established the framework for evaluating when speech by public employees is protected. Similarly, in Tinker v. Des Moines Independent Community School District (1969), the Court ruled that students in public schools may engage in symbolic speech unless it substantially disrupts the operation of the school or invades the rights of others.

Content-Neutral Restrictions

Content-neutral restrictions—such as noise regulation, traffic blocking, and large signs—are generally constitutional if reasonable. In Turner Broadcasting System Inc. v. FCC (1994), the Supreme Court upheld that content-neutral laws apply neutrally to all speakers without regard to their message. However, these laws must be reasonable, and broad restrictions like prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment.

In Schneider v. State (1939), the Court ruled that such broad restrictions were unconstitutional, as they were not neutral in their application and upheld a specific ordinance that allowed parades and processions to be banned but not blockades.

Historical Context and Development

Courts have not always been as protective of free expression. In the 19th century, courts allowed punishment of blasphemy. During and shortly after World War I, the Supreme Court held that speech promoting crime—such as speech condemning the military draft or praising anarchism—could be punished. This changes came after landmark cases such as Schenck v. United States (1919), and Gitlow v. New York (1925), which established that the First Amendment limits state and local governments as well as the federal government.