Free speech: what can you say?

The First Amendment of the U.S. Constitution guarantees certain freedoms including free speech. As political rhetoric heats up with the midterm elections on the horizon, freedom of speech often gets called into question. It is a nuanced topic that many people struggle to fully grasp.

Controversial ideas and topics often are discussed from opposing viewpoints, and at times, these discussions may not align with individuals’ beliefs. It is important to remember that free speech protects topics that may be unpopular or hurtful, and it is guaranteed in the U.S. Constitution.

UNC Charlotte is a publicly funded state institution, and student organizations host a variety of guest speakers with varying viewpoints that may be interpreted as controversial.

Kathleen Nicolaides, J.D., teaching professor in the Department of Criminal Justice and Criminology and director of the Minor in Legal Studies in the Interdisciplinary Studies Program provides insight into the nuances of free speech and the role of higher education in fostering its expression.

In the most simplistic of terms, what is free speech in the United States? What does it guarantee, what does it not guarantee?

Free speech means the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, with very few exceptions. The Constitution expresses the protection of speech from government interference in clear terms, “Congress shall make no law. . .abridging the freedom of speech.” Free speech includes freedom of expression, not having the “thought police” tell us what to think, and being free from government censorship. The First Amendment does not protect speakers against private individuals or organizations, such as private employers, private colleges, or private landowners. This is why it’s permissible for a private employer to fire an employee engaging in speech their employer disapproves of – private employers have the right to manage their employees as they see fit. The First Amendment restrains only the government.

Why is free speech such a vital part of our country’s foundation?

Free speech is universally accepted as a hallmark of our democracy. While some in our country may have lost faith in free speech, we need to recall what Benjamin Franklin, one of the framers of the Constitution, published when he warned citizens about the importance of free speech: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” But the truth is that modern free-speech protections came about only in the mid-1900’s in a Supreme Court led by Justices Oliver Wendell Holmes and Louis Brandeis. The Constitution is very general in describing free speech and it’s been judges who give it specific meaning.

Why is speech that some consider personally hurtful still free speech?

Free speech is designed to protect unpopular, hurtful speech. We don’t need the First Amendment to protect popular speech. The Supreme Court has held that freedom of speech applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like. But restrictions on speech because of its content – that is, when the government targets the speaker’s message – generally violates the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. These types of laws chill public debate and contradict basic principles of self-governance. The idea is that we do not allow the government to decide what ideas or information we should be allowed to hear.

Does the First Amendment address hate speech?

There is no hate speech exception to the First Amendment. Hateful ideas are just as protected under the First Amendment as other ideas, no matter how offensive they are. In fact, the Supreme Court has said, “…the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Even if we agree that hate speech does not deserve constitutional protection, the problem is defining what hate speech is and is not. The phrase hate speech means different things to different people, whose opinions may be based on ideology or political allegiances. The difficulty of reaching agreement on a workable definition shows how dangerous it would be to carve out a new exception to the First Amendment.

Some speech is not protected by the First Amendment and that’s true regardless of whether it’s bigoted or hateful. For example, threats of violence are constitutionally unprotected. That includes all threats – racist threats, threats to police officers, threats to business owners, threats to the President, anyone.

Hate crime laws are constitutional so long as they punish violence or vandalism, not speech. Threats of violence and incitement to violence are not protected, but that has nothing to do with hateful content.

What role does higher education, especially public higher education, play in ensuring and fostering free speech?

Ideally, public higher education provides a learning environment where faculty, staff and students can discover, think critically, and explore the knowledge and values that citizens need to improve their quality of life. Universities uphold free expression through their endorsement of academic freedom which is broadly understood as the right of faculty not to face sanctions for what they teach, write or say. In some countries institutions of higher education are simply a mouthpiece for the government where free and open expression is not tolerated. Free expression is not only the right of the faculty. Students too, enjoy the rights of free speech and expression. At a public university diversity of viewpoint, both inside and outside the classroom, is necessary so that a range of views can be explored. Public institutions are institutions of the state and must uphold the First Amendment and any similar provisions in the state constitution. For example, while private universities may have more leeway in excluding certain points of view (for example, controversial speakers who are invited to campus), public universities must be careful of de-inviting an unpopular speaker to campus because that is seen as violating free speech.

Free speech is necessary for a public university to carry out its primary missions of teaching and advancing knowledge and ideally it provides a way for faculty, staff and students to explore ideas outside of any ideological echo-chamber.

How does our ever-expanding digital world, especially social media, affect free speech?

The Supreme Court has recognized that social media sites such as Facebook and Twitter have become important venues for users to exercise free speech rights. Commentators, educators, legislators and others have questioned whether these social media platforms are living up to their reputation as digital public forums. Some have expressed concern that these sites are not doing enough to counter violent or false speech. Others argue that the platforms are unfairly banning and restricting access to potentially valuable speech.

Many social media sites call for “content moderation” on their sites meaning that they regulate content and take down posts that are not in line with their company values. Rather than foster debate by experts, citizens and others, some social media sites favor voices from one perspective only. This affects free speech because citizens who frequent those sites favor who can be heard. Social media platforms’ restrictions on viewpoint, mostly done under the rubric of “hate speech” extend to a range of opinions. When individuals allege that these social media companies have violated their free speech rights by discriminating against users’ content, courts have held that the First Amendment, which provides protection against state action, is not implicated by the actions of these private companies.

Courts are currently hearing cases where litigants argue that these free speech concerns can justify requiring the social media companies not to discriminate based on viewpoint in choosing what material they host, much like telephone companies and package delivery services are barred from viewpoint discrimination. For example, the U.S. Postal Service cannot refuse a mailing from an anti-vax or pro-choice publication. The idea is that social media platforms be treated like common carriers. But the social media platforms do have the First Amendment right to choose what to present to their users. Ultimately, though, censorship on social media may be damaging to free speech.