Myths and Facts about Free Speech
There are several; here's more
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This is a riff on a Hoover Institution post.
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.
Amendment I, Constitution of the United States
What are the limits on free speech in America? What aren’t you allowed to say? And who may restrict speech?
MYTH: You can’t yell “fire” in a crowded theater.
FACT: This famous phrase comes from the 1919 Supreme Court case Schenck v. United States, but the full phrase is:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.
Oliver Wendell Holmes
The author stated that certain kinds of false claims are punishable when they have a tendency to lead to immediate physical harm. However, later precedents have sharply limited the holding. Schenck v. United States introduced the “clear and present danger” test for when speech loses its constitutional protection, and applied that test to uphold restrictions on anti-draft speech during wartime, on the theory that the speech had a tendency to cause draft evasion. However, according to the more recent Brandenburg v. Ohio (1969) ruling, authorities can only punish a speaker for incitement if that speaker (1) intends to cause (2) imminent lawless action, and the action is (3) likely to happen.
• “Someone should burn down theaters” is protected speech.
• “Come with me to burn down the theater right now, and bring your torches” is not.
MYTH: “Hate speech” is illegal in the United States.
FACT: There is no Amendment I exception for “hate speech,” and there is no legal definition of “hate speech” under American law. Amendment I protects many viewpoints: hateful, loving, or otherwise. Authorities may restrict genuine threats of violence, but not because of its supposedly hateful viewpoint. Anti-racist threats of violence are just as punishable as racist threats of violence.
MYTH: Misinformation and disinformation are not forms of protected speech.
FACT: Amendment I protects even “knowing lies” about the government, history, science, and so on. Innocent mistakes are even more clearly protected. Some particular kinds of falsehoods are punishable. Classic examples of unprotected speech are defamation (false statements that damage someone’s reputation), fraud (lying to get money or other property), perjury (lying under oath), and false advertising (falsehoods, perhaps even unintentional ones, in commercial advertising). But the government cannot use criminal law or even civil liability to police falsehoods.
MYTH: The government can limit certain views only by controlling the time, place, or manner of their expression.
FACT: The government can impose reasonable time, place, and manner restrictions that are unrelated to the content of speech, so long as such restrictions aren’t too burdensome. But it must apply those restrictions uniformly to speech expressing different views. Indeed, it can’t discriminate based on subject, let alone viewpoint.
MYTH: The government can punish you for burning an American flag.
FACT: The Supreme Court held in Texas v. Johnson (1989) and United States v. Eichman (1990) that the law can’t target flag burning for special punishments. At this writing, this still holds true, recent executive orders notwithstanding. Amendment I protects speech and symbolic expression even when it expresses offensive and anti-American ideas. However, the government can evenhandedly apply neutral laws to flag burning. Someone who steals and burns a flag could face punishment for theft or vandalism. But the law has to be applied equally regardless of whether the person stole a flag or anything else.
MYTH: You’re allowed to exercise your free speech everywhere in America.
FACT: Amendment I restricts the government, but not private individuals or businesses. Its first words are “Congress shall make no law,” and Amendment XIV starts with “No State shall” has been read as extending that precept to state and local governments. Amendment I does not constrain private property owners, including individuals or businesses. There’s nothing unconstitutional about restricting speech at your own dinner table, or in a shopping mall or workplace you own or operate, or in a school or university you run, or the newspaper or magazine you publish, the website you host or the Substack you create. However, some state laws (and, to a modest extent, federal laws) do, in some measure, limit the power of private employers, landlords, places of public accommodation, and educational institutions to restrict speech by employees, tenants, patrons, and students; those rules differ considerably from state to state.
MYTH: Amendment I provides protection for vandalism and trespassing to express a viewpoint.
FACT: Amendment I protects the burning of effigies, but not of buildings. The Constitution protects those waving signs and screaming, but not if they trespass or block traffic to do so. No law negates the validity of another without expressly doing so by legislative intent, and no part of Amendment I invalidates property or personal rights.
The simplest expression of the limits to free speech is: “your right to express yourself ends at the intersection of my nose with your fist.”
Happy Pi Day!
This is the day (3/14…get it?) that Pastafarians celebrate the Flying Spaghetti Monster, or that more rational people observe and discuss pi, the ratio of a circumference to a diameter of a circle. First observed in 1988 by San Francisco physicist Larry Shaw, UNESCO has recognized it as the International Day of Mathematics, and the US Congress has recognized it as Pi Day.
Of course, an irrational number has to have an irrational attachment. In 2005, a Kansas science teacher founded the Church of the Flying Spaghetti Monster to lampoon his school board’s insistence on including intelligent design in science courses, adopting 14 March as their holiday (the pi again). Different strokes…
The Devil’s Own Day: Shiloh and the American Civil War
One of the most precious freedoms we have is that of expression, and freedom after peaceful expression is just as important. The secession of the slaveholding states, contrary to popular belief in some circles, was not an expression.
And Finally...
On 14 March:
1916: The US Army’s Punitive Expedition into Mexico begins out of Fort Bliss, Texas. John J. Pershing led the Provisional Division ostensibly to capture Pancho Villa amid yet another Mexican revolution/civil war. There’s no sign anyone ever came close, but it gave Pershing valuable administrative experience he’d need in France, and time for the Department of War to reorganize the National Guard.
1933: Maurice Micklewhite/Michael Caine is born in Rotherhithe, London, England. With a distinct Cockney accent, Caine has won two Academy Awards (nominated in five separate decades), three Golden Globes, and a Screen Actors Guild award. Knighted in 2000, by 2017 his films had grossed over $7 billion worldwide.
And today is GENIUS DAY, celebrating the birth of Albert Einstein on this day in 1879, in Ulm, Baden-Württemberg, Germany. It’s also CELEBRATE SCIENTISTS DAY and SCIENCE EDUCATION DAY. That Albert was something…
I knew, decades ago, when the term "Hate Speech" started getting thrown around, that they were conditioning people to accept censorship of "Hate Speech". Who decides what is or is not "Hate Speech"? Government 'officials', of course. How is this different from any totalitarian country? It isn't.
As for censorship of school newspapers, the school is the publisher (usually) The publisher has the final say on what goes in and what stays out, not the editor. It amazes me that anyone argues that a school can't censor its own publication.
As for the analogy of shouting "Fire," we have to consider that the building might actually be on fire. Or that a person thinks they smell smoke and shouts "Fire" when there isn't one. That translates to, what if someone believes there was election fraud and promotes that belief. They don't have to be right, they only have to believe they're right. My personal opinion: Any voting machine company would do better to irrefutably demonstrate that their system is unhackable than to sue people for claiming it is, and NOT proving them wrong.