The First Amendment and Common Misunderstandings About the Freedom of Speech
Most people in the United States, and even many outside it, know of the First Amendment and its protections for freedom of speech. But with awareness does not come understanding. Many people and even lawyers misapprehend the First Amendment’s protections for speech—from whom it protects people, the extent of those protections, and what those protections entail.
Current events have highlighted the public and its servants’ lack of understanding around this special amendment and its companion laws (such as the Communications Decency Act) that flesh out our infrastructure around speech, communications, the press, and protections and liability for them.
The U.S. Constitution and Its Amendments
The United States Constitution is the basis for the entire legal framework in the United States of America. It contains seven articles, many of which have several sections. The articles mostly set out the structure of the federal government and its three branches (the legislative branch, the executive branch, and the judicial branch), but also other things such as how to add a new Wyoming and how to amend the Constitution.
At the size of a small pamphlet, The Constitution obviously does not contain every law in the nation—but it provides the basis for the body of laws and is the greatest or “supreme” law of the U.S. If another law (perhaps one improperly passed by Congress) says one thing and the Constitution says another, the Constitution wins. Similarly, if a law violates the rules in the Constitution, then it is unconstitutional, and the Supreme Court should say as much if asked.
Over the past 200-some years, the country has made additions to the original Constitution ratified in 1788—these are the amendments. They become part of the Constitution and are the supreme law of the land even though the founders didn’t write them down on parchment in 1787. In many cases, the amendments haven’t merely supplemented the original Constitution, but altered its existing contents.
Notably, many of the country’s most cherished and important laws are not in the original constitutional document. The Bill of Rights ratified in 1791—so called because of the rights it guarantees for Americans—contains the first 10 amendments. Obviously, many of the founders thought these rights to be pretty important. Among this original batch of amendments is the right to be free from unreasonable searches and seizures, the right against self-incrimination, and the right to freedom of speech.
The First Amendment
The First Amendment to the U.S. Constitution is the one associated with freedom of speech. Obviously many of the country’s founders found freedom of speech to be an important right if they provided it in Amendment Numero Uno.
The text of the amendment contains the following: “Congress shall make no law ... abridging the freedom of speech ... .” To abridge is to reduce, lessen, or deprive. According to the First Amendment, Congress can’t do that to the freedom of speech. That’s it—all the nation’s jurisprudence on speech springs from those words.
Notably, the First Amendment also provides several other important rights, such as freedom of the press (often implicated with the freedom of speech), freedom of religion, freedom to peaceably assemble, and freedom to petition the government. It’s a good amendment if you’re not into the whole tyranny thing.
The most fundamental misunderstanding about the First Amendment’s freedom of speech concerns from whom the freedom protects you: namely, the government.
One would think—and the courts have concluded as much—that we want our speech protected from more than Congress. Over the years, the Supreme Court has interpreted the First Amendment’s protections to apply to the other branches of the federal government, the states (via the Fourteenth Amendment), and to a broad understanding of “abridgments.” Basically, any state action at any level of government cannot burden speech.
The freedom of speech is not unlimited though—there are many instances in which Congress and the government can restrict speech (often understandably), most notably speech inciting other illegal activity, obscene speech, and unlawful commercial speech (such as false advertising).
But the Supreme Court’s First Amendment jurisprudence is confusing and convoluted even by the Supreme Court standards (which is really saying something). Several of the speech-limiting exceptions have their own standards and bodies of law. There are also different analyses for prior restraints, overly vague laws, overly broad laws, laws regulating public forums and designated public forums, and restrictions on symbolic speech. Simple Legal Guides’ Bar Prep Materials touch on these rules in the Constitutional Law chapter.
But for the sake of simplicity and illustration, we will pretend that all state restrictions on speech must withstand a court’s application of strict scrutiny. For a law to survive strict scrutiny, the law or state action must:
- Be necessary to achieve a compelling government purpose;
- Be the least restrictive alternative to achieve that interest.
In other words, in order to limit the freedom of speech the government must have a really good reason and do it very carefully. It’s like a high-jump bar—and if the government can clear the bar, then its actions limiting speech are constitutional. While the standards for types of speech and types of government restrictions vary—they all have to pass some standard (bar) like strict scrutiny to be constitutional.
The Public’s Biggest Miss: The First Amendment Protects Speech from Actions by the Government
The most fundamental misunderstanding about the First Amendment’s freedom of speech concerns from whom the freedom protects you: namely, the government.
Remember the text of the amendment? “Congress shall make no law … abridging the freedom of speech”? While the courts have expanded the meaning of “Congress,” “no law,” and “abridging,” it still applies only to state action.
To rewrite the relevant part of the amendment another way: “The government shall take no action limiting the freedom of speech.” Further yet, “the government shall take no action limiting the freedom of speech that does not overcome the bar set by strict scrutiny (or some other high standard).”
So while the Supreme Court has greatly expanded the freedom of speech over the years, the First Amendment only protects individuals from the government, not the actions of private third parties. The freedom of speech does not protect you from a private employer firing you for calling your boss an idiot, or from Twitter banning you for threatening to blow up the Statue of Liberty, or from a restaurant ejecting you for announcing that their mask policy is an anarchosocialist conspiracy to prevent you from getting mozzarella sticks.
The First Amendment protects you from the government. That is the most common misperception about the First Amendment: it does not protect you from the actions of private third parties, but only the government. The freedom of speech is a legal right—it does not protect you from all consequences for your speech.
The diagram below illustrates this, with the First Amendment acting as a shield or defensive wall to protect the speaker from an unconstitutional law, restriction, or other form of state action. Strict scrutiny—or whatever standard of review applies—determines the height of that wall.
An exception helps the government vault over that wall, as illustrated below.
Example 1: New York Times Co. v. Sullivan
To see the First Amendment in practice, we’ll look at three examples. For the first example, let us consider one of the most famous freedom of speech cases in the United States: New York Times Co. v. Sullivan, 376 U.S. 254 (1964). On March 29, 1960, the New York Times published an advertisement entitled “Heed Their Rising Voices” portraying the “unprecedented wave of terror by those who deny and negate” the freedoms sought by civil rights protesters in the American south, particularly Montgomery, Alabama.
Among the advertisement’s ten paragraphs of text, “some of the statements contained in the paragraphs were not accurate descriptions of events which occurred in Montgomery,” including the song students sang on the steps of the State Capitol (not “My Country, ‘Tis of Thee,” but the national anthem), the reason for several students’ expulsion (not for leading the demonstration at the capitol, but for demanding service at a lunch counter in Montgomery), and the number of times police arrested Dr. Martin Luther King, Jr., (not seven times but “only four”).
L. B. Sullivan, one of Montgomery’s three elected commissioners, sued four individuals and the New York Times in Alabama state court for libel (published, written defamatory statements concerning the plaintiff), taking issue with the inaccuracies and attributing many of the vague aspersions in the ad to refer to him personally. Prevailing in state court, the Times appealed to the Supreme Court.
Although the New York Times did not dispute that some of the statements were inaccurate (“It is uncontroverted”), the Supreme Court held that a showing of “actual malice” is required for a state to use its power to award damages in a libel action brought by a public official.
Actual malice requires a showing that the speech contained false statements and that the speaker (in this case, the New York Times) knew the statements were false or reckless as to their falsity. The Court (Justice Brennan writing) found the facts supported “at most a finding of negligence … constitutionally insufficient for actual malice.” The Court found the law necessary to prevent states (such as Alabama) from using “civil libel law to impose damages on the press for criticizing the way public officials perform or fail to perform their duties.”
The situation in Sullivan is illustrated below. Here, an exception that would otherwise have overcome the First Amendment bar to restrictions on speech (laws against libel) failed because of an additional constitutional barrier (a required showing of actual malice).
Sullivan is a good example because it demonstrates both an exception to the First Amendment bar to restrictions (a libel action) and a special First Amendment standard (need for public officials to show actual malice) in action.
Example 2: Boycotts and Public Retaliation for Speech
As explained above, many people misunderstand from whom the First Amendment protects them. The freedom of speech is to be free from the government restricting speech. The amendment does not protect individuals from action from non-governmental individuals, companies, or concerted action by the public.
This scenario unfolds frequently. An individual says something disagreeable (often: stupid), the public reacts by demanding responsibility or boycotting the speaker (or his or her affiliated entity), and the speaker claims that he or she has been wronged and that the public is “suppressing speech.”
The freedom of speech is a legal right—it does not protect you from all consequences for your speech.
This happens all the time. Just this week, the CEO of Goya Foods praised the president of the United States, upsetting many people who don’t care for him. Goya CEO Robert Unanue then claimed that retaliatory action from the public—such as a boycott of his company—was “suppression of speech.”
This isn’t true. The public is free to basically do whatever it wants in response to speech it finds disagreeable that isn’t otherwise illegal. All 323 million people in the United States are free to boycott Goya Foods should they choose to do so—just as they can buy $1 million worth of frijoles negros as they can afford to show their approval of the Goya CEO’s praise of the president.
Mr. Unanue may be “right” in the sense that public responses to speech prevent some speaking and maybe even limit the free flow of ideas. But a boycott is not “suppression” in any sense the First Amendment recognizes; nor is it the exercise of state power associated with actual “suppression” as society recognizes it. The diagram below illustrates the public's ability to boycott in response to speech.
In fact, boycotts are themselves a protected form of speech. There is Supreme Court precedent in NAACP v. Claiborne Hardware Co. holding that laws and actions (by the government of course) prohibiting boycotts are unconstitutional. (Many states have recently passed laws to prevent companies or individuals from boycotting Israel—these laws are most certainly unconstitutional until the Supreme Court says otherwise.) As another matter, the American system of laws largely prohibits bad behavior—it doesn’t force people to act. A boycott is forbearance of action, albeit politically motivated. While states have tried to ban organizing boycotts, what are governments going to do—pass laws requiring people to buy Goya beans?
Again, the First Amendment protects you from some governmental consequences of your speech. It does not protect you from all consequences for your speech.
Example 3: The Communications Decency Act
One of the more excusable misunderstandings of the law in practice concerns the Communications Decency Act (CDA) and how it operates. Passed by Congress in 1996, the CDA is an essential law to have the internet as we are now accustomed to it—without it, the internet as it currently exists would not be possible.
One of the chief features of the CDA was its declassification of websites as publishers or speakers. Section 230 provides, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Professor Jeff Kosseff has described these as “the twenty-six words that created the internet.”
What Section 230 does in practice is immunize providers (websites and apps) from liability for the speech of their users—it prevents intermediaries from being sued or held responsible for the potentially unlawful actions of their users. Unlike a “publisher” in the truest sense (like the New York Times in Sullivan), websites like social media do not need to discriminate or exercise editorial control when users speak through their posts—although the CDA also provided freedom for them to do so.
While we can see how this freedom from liability could be bad in many instances (users can post hateful and defamatory speech without any consequences for the platform), the internet as we know it would be impossible if websites or app providers were held responsible for the actions of their users—it would be legally and financially impossible.
How this generally operates is illustrated below.
One can see how this could be confusing in application—identifying who is protected from what. But what is inexcusable is the way many still think that the First Amendment protects them from the actions of Facebook or Twitter when it doesn’t (see above). Again, the First Amendment protects individuals and their speech from the government, not from Mark Zuckerberg or Jack Dorsey. The CDA on the other hand protects providers from both the government and its users (who could otherwise imperil their business through their speech).
Unsurprisingly, the president misunderstands what CDA 230 means for him and his tweets. At the end of May, Twitter hid some tweets from the president behind a warning label that it understandably found to violate its rules about “glorifying violence.” The president responded by threatening to revoke CDA 230 and then issuing an executive order that tries to smuggle some “good faith” language into the part of Section 230 excluding providers from being publishers. Some legal experts have concluded the order is unenforceable.
The thing is that the revocation of CDA 230 would have the opposite effect as supposed by the president. The section’s removal would not affect Twitter’s ability to remove the president’s speech—it would force Twitter to more greatly restrict the president’s speech (and everyone else’s) to avoid liability. The legal shield of CDA 230 allows Twitter, Facebook, and Google to be more laissez faire about what their users do, because it won’t come back to hurt them. Hold providers responsible as “publishers” of their users' content—and they have no choice but to limit the president’s potentially defamatory speech (and other users’). The diagram below illustrates this.
Beyond further limiting users’ speech, Twitter would basically cease to exist with the revocation of CDA 230. It would not only have the opposite effect of what the president apparently intends, Twitter would have no choice but to drop the hammer on many of the president’s tweets. Ironically, a protection for Twitter that the president wants to destroy protects his own speech by proxy—and the destruction of that safeguard would force Twitter to further limit the speech he wants to be unfettered. Revoke 230, and the president would be in effect revoking many of his own tweets.
These three examples demonstrate the First Amendment in practice and demystify some of the misunderstandings around it. The two main takeaways are:
- The First Amendment freedom of speech protects people from burdens on speech from the government, not private actors.
- To understand whether the First Amendment is implicated, first identify who is burdening whose speech. If it is a state action, then analyze the nature of the burden and the speech, and apply the relevant standards to determine if the burden is lawful.