Freedom of Speech is a fundamental right that every American knows they possess, but at what extent does it become unlawful? How much of what you say is really “free” without consequences? These are crucial questions to understanding what our legal system has to say about what we can, and cannot say under the law.
First, let’s define our terms. Freedom of speech is our right to communicate our ideas freely—through spoken words, writing, art, etc.— without government interference. Furthermore, we have the right to challenge authority, participate in democracy through debate/protest, share opinions openly, and much more! Without our right to express our ideas, our society risks censorship, oppression, and loss of individual liberty. However, this does not mean that ALL speech is free of consequences. Simply put, freedom of speech is not absolute. The Supreme Court has ruled numerous times that some forms of speech are not protected due to their harmful nature and threat to public order. Let’s go over some Supreme Court cases that shows just this.
Chaplinsky v. New Hampshire (1942)
Walter Chaplinsky was a Jehovah’s Witness that was distributing religious pamphlets on a public street, criticizing organized religion. His preaching attracted a hostile crowd. When a city marshal tried to calm things down, Chaplinsky let out a series of obscenities, calling the marshal a “God-damned racketeer” and a “damned fascist”. Under New Hampshire law, which prohibited intentionally offensive words said to someone in a public place if those words provoked a violent reaction, Chaplinsky was arrested. He claimed that his First Amendment right to free speech had been violated, arguing that the state couldn’t punish him for just his words. The Supreme Court unanimously upheld Chaplinsky’s conviction, asserting that certain types of speech are not protected by the First Amendment because they have no essential value to public discourse and cause immediate harm. The Court identified specific categories of unprotected speech, including : Lewd and obscene speech, profane speech, libelous speech, and fighting words. Chaplinsky’s insults was classified by the Court as “fighting words” because they were likely to provoke violence.
New York Times Co. v. Sullivan (1964)
In 1960, during the Civil Rights Movement, the New York Times published a full-page advertisement titled “Heed Their Rising Voices”. The ad criticized how officials in the South were treating civil rights protestors, but it contained some factual inaccuracies, such as minor errors about how police handled student demonstrations. L.B. Sullivan, a Montgomery city commissioner who supervised the police department, claimed the ad defamed him personally, although his name was not mentioned directly. He argued that the ad’s criticism of the police department reflected on him and hurt his reputation. An Alabama state court sided with Sullivan and he was awarded $500,000 in damages.
The New York times appealed, arguing that punishing them for minor errors discourages journalists from freely expressing themselves. The Supreme Court unanimously ruled in favor of The New York Times, stating that the First Amendment protects publication of all statements about public officials, regardless of if they are true or false, as long as they aren’t made with malicious intent. Since the New York Times had not acted with actual malice, it was protected under the First Amendment.
Miller v. California (1973)
Marvin Miller was a California businessman who conducted a mass mailing campaign to advertise and sell pornographic materials. Some recipients complained, and Miller was charged with violating California’s obscenity laws. The legal question here is : Does the First Amendment protects publication obscene materials, or is it punishable by states?
The Supreme Court ruled that obscene materials are not protected by the First Amendment. The Court established the Miller Test—a three-part test to determine whether material is legally obscene. The three components were : 1. Prurient Interest (Would the average person find that the work appeals to a sexual interest?). 2. Patently Offensive (Does the work depict sexual conduct in a clearly offensive?). 3. Serious Value (Does the work lack serious literary, artistic, political, or scientific value?). Meeting all three criteria meant that the material can be banned as obscene.
Takeaways
In summary, although the First Amendment protects your freedom of speech to openly express your ideas, there are many exceptions to this. Among these exceptions are true threats, defamation, obscenity, fighting words, etc. The bottom line is, if your words are really just harmful or dangerous actions disguised as speech, then it is deemed unlawful under U.S. Law.