Why We Really Need to Talk About Freedom of Speech

Female protestor shouts at cop through a bullhorn
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As simple as it may sound, “freedom of speech” can be tricky. Many Americans who get fired from their jobs for saying or writing the “wrong” thing claim that their freedom of speech has been violated. But in most cases, they are wrong (and still fired). In fact, “freedom of speech” is one of the most misunderstood concepts expressed in the Constitution’s First Amendment.

For example, people who argued that the San Francisco 49ers pro football team would have violated their quarterback Colin Kaepernick’s right to freedom of speech by suspending or fining him for kneeling during the pre-game National Anthem were wrong. Indeed, some NFL teams have policies prohibiting their players from engaging in similar on-field protests. These bans are entirely constitutional.

On the other hand, people who argued that sending American flag burners to prison, as suggested by President Donald Trump, would violate the protesters’ right to freedom of speech were right.

The Truth is in the Words

A casual reading of the First Amendment to the U.S. Constitution could leave the impression that its guarantee of freedom of speech is absolute; meaning people cannot be punished for saying anything about anything or anyone. However, that is not what the First Amendment says.

The First Amendment says, “Congress shall make no law … abridging the freedom of speech …”

Emphasizing the words “Congress shall make no law,” the First Amendment only prohibits Congress – not employers, school districts, parents or anybody else from creating and enforcing rules limiting the freedom of speech. Note that the Fourteenth Amendment similarly prohibits state and local governments from creating such laws.

The same holds true for all of the five freedoms protected by the First Amendment -- religion, speech, the press, public assembly, and petition. The freedoms are protected by the First Amendment only when the government itself tries to restrict them.

The Framers of the Constitution never intended for the freedom of speech to be absolute. In 1993, U.S. Supreme Court Justice John Paul Stevens wrote, “I emphasize the word 'the' in the term 'the freedom of speech' because the definite article suggests that the draftsmen (of the Constitution) intended to immunize a previously identified category or a subset of speech.” Otherwise, explained Justice Stevens, the clause could be taken to protect illegal forms speech like perjury while under oath, libel or slander, and falsely shouting “Fire!” in a crowded theater.

In other words, along with the freedom of speech comes the obligation to deal with the consequences of what you say.

Employers, Employees, and Freedom of Speech

With a few exceptions, private-sector employers do have the right to restrict what their employees say or write, at least while they are at work. Special rules apply to government employers and employees.

Beyond the restrictions imposed by employers, some other laws further restrict employees’ freedom of speech. For example federal civil rights laws banning discrimination and sexual harassment, and laws protecting customers’ confidential medical and financial information restrict employees from saying and writing many things.

In addition, employers have the right to prohibit employees from divulging trade secrets and information about the company’s finances.

But There Are Some Legal Restrictions on Employers

The National Labor Relations Act (NLRA) imposes some restrictions on the rights of employers to limit the speech and expression of their employees. For example, the NLRB grants employees the right to discuss workplace-related issues like wages, working conditions, and union business.

While publicly criticizing or otherwise slamming a supervisor or fellow employee is not considered protected speech under the NLRA, whistleblowing – reporting illegal or unethical practices – is treated as protected speech.

The NLRA also bans employers from issuing sweeping policies banning employees from “saying bad things” about the company or its owners and managers.

What About Government Employees?

While they work for the government, public-sector employees do have some protection from punishment or retaliation for exercising their freedom of speech. So far, the federal courts have limited this protection to speech that involves matters of “public concern.” The courts have typically held “public concern” to mean any issue that can reasonably be considered as relating to any matter of political, social, or other concern to the community.

In this context, while a federal, state or local government agency could not have an employee charged with a crime for complaining about their boss or pay, the agency might be allowed to fire the employee, unless the employee’s complaint was ruled to be a “matter of public concern.”

Is Hate Speech Protected Under the First Amendment?

Federal law defines “hate speech” as speech that attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act makes it a crime to physically harm any person based on their race, religion, national origin, gender or sexual orientation, among other characteristics.

To some extent, the First Amendment does protect hate speech, just as it protects membership in organizations that support hateful and discriminatory ideologies like the Ku Klux Klan. However, over the last 100 years or so, court decisions have progressively limited the extent to which the Constitution protects persons who engage in public hate speech from prosecution.

Specifically, hate speech determined to be intended as an immediate threat or stated in order to incite lawlessness, like starting a riot, may not be given First Amendment protection. 

Those Are Fighting Words, Mister

In the 1942 case of Chaplinsky v. New Hampshire, the U.S. Supreme Court ruled that when a Jehovah's Witness called a city marshal a “damned fascist” in public, he had issued “fighting words.” Today, the courts “fighting words” doctrine is still used to deny First Amendment protection to insults intended to provoke an “immediate breach of the peace.”

In a recent example of the “fighting words” doctrine, a Fresno, California school district banned a third-grade student from wearing his Donald Trump autographed “Make America Great Again” hat to school. On each of the three days, the boy had been allowed to wear the hat, more of his classmates started confronting and threatening him at recess. Interpreting the hat to represent “fighting words,” the school banned the hat in order to prevent violence.

In 2011, the Supreme Court considered the case of Snyder v. Phelps, concerning the rights of the controversial Westboro Baptist Church to display signs found offensive by many Americans in protests held at funerals of U.S. soldiers killed in battle. Fred Phelps, the head of Westboro Baptist Church, argued that the First Amendment protected the expressions written on the signs. In an 8-1 decision, the court sided with Phelps, thus confirming their historically strong protection of hate speech, so long as it doesn't promote imminent violence. As the court explained, “speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is a subject of general interest and of value and concern to the public.”

So before you say, write or do anything in public that you think might be controversial, remember this about the freedom of speech: sometimes you have it, and sometimes you don’t.