The ability to speak truth to power is a cornerstone of any free society, and it’s a right that’s enshrined in the American Constitution by virtue of the First Amendment. But, as decades worth of court cases have shown us, the right to free speech is anything but absolute. In fact, whether a person can successfully make a particular statement may depend on the state where they live and what views they’re expressing.
What have courts said about free speech and the limitations that can be placed on speech over the years? And how does the prevalence of social media make it easier (or harder) to make your views known?
Free Speech Under Attack?
Despite the freedom to express your views being enshrined in the Constitution, that right has been repeatedly challenged and tested over the years. During World War I, people were jailed for handing out anti-war leaflets. Today, problematic Wikileaks founder Julian Assange faces espionage charges in connection with his site publishing leaked government documents.
One need not be under arrest to face the consequences of views that others might disagree with, though, and incidents that fall short of government intervention also seem to be on the rise. Recently, several conservatives were banned from some social media platforms, and in 2018, dozens of accounts connected with the left-leaning Occupy movement were removed from Twitter. College campuses and high schools also are frequent hotspots for debates over what qualifies as free speech and whether it’s ever OK to keep someone from speaking their mind.
Recent Lawsuits & Settlements
Here’s a brief selection of lawsuits over free speech complaints from the past couple of years:
Arkansas: A student lawsuit backed by a conservative group accuses Arkansas State University of violating the student’s free speech rights with a policy establishing “free speech zones” on the campus. In another case, a public school system settled a lawsuit with the family of a student who was expelled from school after posting on Facebook multiple images of himself holding a gun shortly after the fatal mass shooting at Stoneman Douglas High School in Florida.
California: Pierce College settled a lawsuit brought by a student who was forced to stop handing out Spanish-language copies of the Constitution in an effort to recruit new members of a Libertarian student group.
Kansas: A public school board settled a lawsuit with the American Civil Liberties Union over Shawnee Mission school officials’ actions in halting student-led anti-gun violence rallies and threatening the students with disciplinary action for taking part in a national student walkout.
Texas: A free speech group sued the University of Texas on behalf of students over policies that prohibit students from publicly expressing racial, gender, religious or other biases.
Colorado: A former city mayor settled a lawsuit over allegations that she removed a city resident’s comments from her official Facebook page and blocked him from viewing the page based on his criticism of the city’s position on fracking.
Social Media Censorship
Many of the lawsuits and settlements listed in the section above cover allegations of censorship related to social media. But this is a rather complex issue, as the companies that operate social media platforms are private businesses that, as far as legal precedent is concerned, largely have wide discretion in who is allowed to use their platform.
But as many conservative groups and commentators have argued, these platforms are rife with secrecy over the decisions they make. For instance, many of the conservatives recently de-platformed from Twitter and/or Facebook have been posting their unvarnished views for years. So why now are they being removed? In most cases, the social platforms have tied bans to violations of terms of service, but rarely is a single incident cited as the straw that broke the camel’s back.
While the law isn’t settled on this yet, it very soon could be, as the U.S. Supreme Court has agreed to take up a case that may decide whether users can push back against social media platforms on free speech grounds.
School Uniforms & Clothing
According to the most recent available data, about 1 in 5 public schools require students to wear uniforms, a policy that is largely backed by legal precedent, though the issue isn’t exactly clear.
For instance, in some cases, the courts have ruled that while schools have a right to set a dress code but that the codes cannot be overly broad. The Supreme Court ruled in one case that a school district could not prohibit the wearing of clothing that relates to weapons. In other cases, courts have upheld school systems’ efforts to prohibit clothing that shows the Confederate flag.
Attacks on News Media
So far in 2019, 11 journalists have faced physical attacks in the United States, and many more have had equipment taken or had their access to public documents or events restricted. Journalists are regularly subjected to verbal abuse while attempting to cover stories, even at the hands of high-ranking political officials, including the president.
Intentional or not, these acts serve to create a chilling effect on those targeted as well as all others watching; in effect to make them think twice about performing their job duties.
State & Local Laws
Perhaps no issue is as variable as local ordinances on signage and other displays that residents are permitted (or not) to have on their properties. Generally, the courts have ruled based on how inconsistently local laws are applied. If the rules apply to all equally, usually the courts have permitted states and municipalities to restrict these kinds of displays. But in cases where the rules are not applied equally, such as the case in which the Supreme Court determined that an Arizona town was unfairly restricting the rights of a pastor and that the town treated signs differently based on their content.
What the Law Says
All free speech lawsuits stem from perceived violations of a relatively short passage in the Bill of Rights, the First Amendment, which reads:
“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.”
While that’s a clear indication that no government official or agency can prevent any citizen from expressing a point of view, peacefully protesting or agitating for change, as we’ve already seen, in practice, this is murky at best and has been used as the basis for thousands of lawsuits.
The courts have repeatedly allowed limits to freedom of expression. A few of them include:
- Fighting words, or those meant to incite or inspire violence
- Defamatory falsehoods and other libelous statements
- Legally obscene materials
Frequently Asked Questions
Unsure whether you have a case against your school, employer or a government agency that you believe has violated your First Amendment rights? Here are a few frequently asked questions on this topic:
Q: I was kicked off a social media platform. Can I sue the company?
A: While the Supreme Court recently heard arguments in a case that could have major implications in this area, established law could provide some guidance here. If you can prove that the social media company treated you differently than others who behaved similarly and the only difference is the content of your speech, you could have a good case. But keep in mind that while they are used by most people, in the case of Facebook, these still are private companies, and courts have fairly consistently ruled that private companies have a right to restrict their user base.
Q: Can I sue my school for keeping me from protesting?
A: Courts have consistently ruled that schools are not allowed to prevent students from speaking out on issues, including sensitive political debates. The landmark 1969 Tinker v Des Moines decision held that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In most cases, school administrators are only permitted to restrict students’ free speech rights if their expression of free speech causes a substantial disruption to the school.
Q: I got fired for something I posted on Facebook. Can I sue my boss?
A: While this answer will depend largely on where you live, as some states make it much more difficult than others for wrongfully terminated employees to sue, the content of what you are saying and your particular role within the company will also probably be major factors, but probably the biggest factor will be how consistently the company applies its social media policies. For instance, have other employees been disciplined for posts similar to yours, or are you being singled out for some reason? Additionally, the National Labor Relations Act extends some protections to employees to improve their working conditions, with or without a union, and Facebook posts could be considered protected under this statute in some cases.
Q: I work on a student newspaper. Can we print whatever we want?
A: Schools have broad leeway to limit what students can publish in school-sponsored publications, but for those that are not school-sponsored and are not distributed on school grounds, administrators generally are permitted less control. However, even for school-sponsored publications, officials must prove that they have a justifiable educational reason for censoring students.
Q: I attend a private school. Does that change my right to free speech?
A: Because they are not operated via public funds, private schools are not tied to the government and as such, they are not legally obligated to protect their students’ free speech rights.
Q: Do I have a right to post on Twitter or Facebook?
A: In the strictest sense, no. Your right to post on Twitter, Facebook or any other social media platform extends only as far as the site itself permits. Every user signs a lengthy terms-of-service agreement that outlines the supposed rights that you have as a consumer, and violation of those terms has generally provided the companies with ample legal cover to ban users. However, a case that’s currently before the Supreme Court may compel social media platforms to focus on protecting their users’ free speech rights.
Q: Is parody considered protected speech?
A: Usually, yes, but the situation could vary depending on factors like emotional distress, libel or defamation or copyright infringement.
Q: Can elected officials block users from viewing the officials’ social media accounts?
A: Probably not; in the case of a Colorado mayor who blocked an environmental activist from viewing and posting on her Facebook page, elected officials generally are not allowed to block citizens from expressing views or seeing their posts. For instance, a federal judge ruled that President Donald Trump’s practice of blocking critics on Twitter violates their First Amendment rights because the president’s account is considered a public forum.
Q: Is “hate speech” considered protected?
A: The Supreme Court has fairly consistently ruled that so-called “hate speech” is protected by the First Amendment and can’t be subjected to attempts to carve out exceptions to the amendment. The court ruled on this as recently as 2017, though this is an issue that continues to rage across the country.
Particularly on high school and college campuses, fights over free speech are nothing new, but it does feel as though they are heating up and expanding beyond the bounds of campuses. As our world becomes increasingly digital, it’s almost impossible to avoid your opinion and right to express that opinion coming up against someone else’s rights. In these conflicts often lies a choice between the First Amendment and the rest of the Constitution.
- Arkansas Democrat Gazette, Free-speech suit against ASU goes on despite new state law. (2019). Retrieved from https://www.arkansasonline.com/news/2019/feb/25/free-speech-suit-against-asu-goes-on-de-1/
- Arkansas Democrat Gazette, District to pay $42,665 to settle lawsuit over expulsion of Northwest Arkansas student. (2019). Retrieved from https://www.arkansasonline.com/news/2019/feb/23/district-to-pay-42-665-to-settle-lawsui-1/
- Inside Higher Ed, LA Community College District Settles Free Speech Case. (2018). Retrieved from https://www.insidehighered.com/quicktakes/2018/12/17/la-community-college-district-settles-free-speech-case
- The Kansas City Star, Shawnee Mission district settling ACLU lawsuit over free speech at gun protests. (2019). Retrieved from https://www.kansascity.com/news/local/article227142794.html
- UT Statesman, UT policies restrict students’ free speech, lawsuit says. (2018). Retrieved from https://www.statesman.com/news/20181214/ut-policies-restrict-students-free-speech-lawsuit-says
- The Associated Press, Anti-fracking Activist Wins First Amendment Lawsuit Against Former Lafayette Mayor. (2019). Retrieved from https://www.apnews.com/17f13ac6ae9e462fad6b314fc503f634
- CNBC, Supreme Court agrees to hear a case that could determine whether Facebook, Twitter and other social media companies can censor their users. (2018). Retrieved from https://www.cnbc.com/2018/10/16/supreme-court-case-could-decide-fb-twitter-power-to-regulate-speech.html
- American Civil Liberties Union, Freedom of Expression. (Undated). Retrieved from https://www.aclu.org/other/freedom-expression
- National Labor Relations Board, The NLRB and Social Media. (Undated). Retrieved from https://www.nlrb.gov/rights-we-protect/rights/nlrb-and-social-media
- Wired, Trump can’t block critics on Twitter. What this means for you. (2018). Retrieved from https://www.wired.com/story/donald-trump-blocking-on-twitter-unconstitutional/