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Public & Private: When Is Free Speech Protected?

"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."

Most people recognize this block of text as the First Amendment – a hallmark of American democracy. Today, one of the most discussed and debated freedoms from the list above is the freedom of speech. A casual reading of this amendment might lead one to believe that the guarantee of this freedom is absolute. However, while this freedom is broad, it is often misunderstood.

The amendment begins, “Congress shall make no law…” Simply put, the First Amendment protects your speech from governmental censorship at the federal, state and local level. While this category is broad and includes lawmakers, elected officials, public schools, universities, police officers, and the like, it does not protect you from private citizens, organizations, or businesses. So how do you know if your speech is protected? Here are some examples of speech that can and cannot be infringed upon by private and public actors.

You are banned from a social media platform like Twitter.

Is your tweet protected speech? No. This is not governmental punishing or censoring of your speech. If anything, you most likely violated one of Twitter’s terms and conditions regarding what you can and cannot tweet.

You are arrested for video recording a police officer.

Is your video recording protected speech? Yes. If you are arrested for or prevented from recording a police officer or other governmental agent, your rights are being violated, unless of course you were also engaging in something unlawful at the time of your arrest.

A public university enforces a “speech zone,” restricting students to speak freely on campus grounds.

Is this policy unconstitutional? Yes. When public universities move students or groups from a popular, high-traffic area of campus to a low-traffic area because the university disagrees with the point of view of the student or group, it directly violates their freedom of speech.

You are fired from your job for speaking your mind at the water cooler.

Is your critical speech protected? It depends, but in most cases, no. Many companies have a code of conduct or morality clause in their employee contracts that your expressed opinions may have somehow violated. However, there are federal discrimination acts that govern terminations. This includes the Age Discrimination in Employment Act, Americans with Disabilities Act, Equal Pay Act, Immigration Reform and Control Act, the Civil Rights Act, and Genetic Information Nondiscrimination Act. If you were fired because of something that you said that would fall under one of these categories, your speech would be considered protected. For example, if you talked to one of your colleagues about your Jewish heritage, and you were fired for it, that would violate your First Amendment right of free speech, your freedom to exercise your religious beliefs, and Title VII of the Civil Rights Act.

Many people think that the freedom of speech covers only what is said orally, but speech is more than just talking out loud. Here are other variations of speech that are protected under the First Amendment, as it relates to government regulation.

  • Written works – Having controversial books in a public school library

  • Artwork, dance, and theater – Displaying artwork critical of the government

  • Clothing – Wearing a cross necklace

  • Yard signs – Expressing support for a political candidate with a yard sign

  • Movies, music, and television – Creating and sharing videos

  • Online posts – Sharing a Facebook post or retweeting political opinions

  • Political donations – Donating money to political campaigns as an individual or business

  • Symbolic and expressive speech – Burning the flag

  • Abstaining to speak – Refusing to pledge allegiance to the flag at school

On the other hand, there are modes of speech that are not protected by the First Amendment. In fact, there are a number of categories of speech that warrant suppression, including:

  • True threats – Announcing in an airport that you are going to bomb a plane

  • Defamation – Writing or verbalizing a false statement that harms another person’s reputation

  • Blackmail – Demanding money in return for not revealing something

  • Perjury – Lying under oath

  • Plagiarism – Copying another person’s writing without permission

  • Solicitations to commit crimes – Convincing some else to commit a crime

  • Child pornography – Filming or sharing pornographic photos or videos of minors

  • Fighting words – Inciting hate speech that is seriously threatening or would create a breach of the peace.

  • Obscenities – Displaying works that depict or describe an act of sexual conduct

  • Incitement to imminent lawless action – Yelling “fire” in a crowded movie theater

While our right to free speech can, at times, be complicated, it is nonetheless integral to our society. Over the years, the Supreme Court has heard, and will continue to hear, cases that alter its interpretation. While there are many misconceptions as to what the freedom of speech actually entails and protects, it is crucial to have a basic understanding of what our liberties are and what the government can and cannot do to infringe on those liberties.

At Levine Eisberner LLC, we take your civil rights seriously. If you believe that your civil rights have been infringed upon, our attorneys would be happy to review your potential case.


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