“Congress shall make no law . . . abridging the freedom of speech, or of the press . . .”
Unless, of course, it wants to.
This is the topic of a recent report from the Congressional Research Service titled, “Freedom of Speech and Press: Exceptions to the First Amendment.”
The First Amendment had exceptions? Where’s my copy of the Constitution? I’ve got to see this.
Now, if you actually go and read the First Amendment, you won’t find any exceptions listed. But if you intend to do any public speaking, or perhaps operate a Web site, you might want to become familiar with the exceptions, and perhaps where they came from.
This report provides an overview of the major exceptions to the First Amendment — of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection to obscenity, child pornography, or speech that constitutes “advocacy of the use of force or of law violation . . . where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television, and public employees’ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” And, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes “strict scrutiny,” i.e., if the government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest.” — Freedom of Speech and Press: Exceptions to the First Amendment
That’s right, if the government says it has a compelling interest in restricting your speech, then it will do so, and the courts will look the other way. As the computer people say, this isn’t a bug; it’s a feature. The common law legal system used in the U.S. provides that the law is whatever judges decide it is. These decisions then pile up and become case law, which you’re expected to know in addition to the millions of pages of actual written laws on the books. This is why the First Amendment is said to not be absolute: because judges in the past have ruled that the government may restrict speech, regardless of what’s written on the piece of paper.
CRS reports are not routinely released to the public. They’re prepared for members of Congress and CRS has said it intends to keep it that way. This report was obtained by the Federation of American Scientists.
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Corey Mondello
May 24, 2007
There all pigs in government.
anonymous
May 24, 2007
Yes, exceptions. The oft-cited example is yelling fire in a crowded theater. The right of “free speech” is not absolute, nor are any of the rights set out in any other parts of the Constitution.
The first amendment does not trump all others (none of them trumps all others). Life is complex. Get over it.
Norm
May 24, 2007
@2. anonymous:
Our rights do not come from the Constitution. The Constitution is supposed to set limits upon government power. See the ninth amendment for trumpage.
Verbos
May 24, 2007
Tyrants have always claimed that “might makes right”. And now “the ends justifies the means” is quite popular.
J. Bruno
May 24, 2007
Yelling fire in a crowded theater is your right– there are many valid reasons to do so. Maliciously inciting a crowd to panic is not.
Lord Metroid
May 24, 2007
You can maliciouslu incite a crowd if you want to it is your right. Just be prepared to take responsibility for your actions!
Lord Metroid
May 24, 2007
Okay… Good to know, I just ain’t gonna care of what they say. They can go buttseks each other for all what I care.
Kris Overstreet
May 24, 2007
Rights end when they violate the rights of others.
Free speech does not include the freedom to abuse others to produce the communication in question- hence the prohibition of child porn.
Free speech does not include the freedom to incite violence against others- at least not where there is any expectation that people will obey.
Free speech does not include the freedom to lie or otherwise bear false witness against someone. This includes commercial speech intended to defraud or mislead without actually lying.
Free speech does not include the freedom to harm the mental health of others. This is a highly debatable and contentious issue, but current prevailing opinion is that vulgar and sexually explicit speech warps the developing minds of children, leading to permanent maladjustment in their adult lives. (I don’t buy into the theory, but I do think that, for example, giving porn to minors is a violation of the rights and responsibilities of the parent.)
Free speech does not include the right to deprive others of their right to free speech. This is why there USED to be limits on how many radio or television stations one person or one corporation could own in one area. This is also one reason given as an excuse for limiting events in public places- parades, rallies, etc- to give competing organizations their turn. (There’s also the issue of parades depriving non-parading citizens of their right to get where they need to go on public streets.)
Finally, free speech does not include speech which, by its nature or content, brings harm to innocent parties. Falsely shouting “Fire!” in a crowded theatre is such a case; another would be shouting “Allah akhbar!” in the middle of a huge Republican rally. Still another is revealing the identities of undercover agents in criminal organizations or in foreign nations. The line here is very vague and moveable, but it is present and should be considered.
You won’t find many people more gung-ho about freedom of speech than me, but there are cases where the right to communicate conflicts with other rights, including the right to life. Complaining about restrictions related to such cases weakens your arguments against restrictions NOT related to them- such as obscenity, broadcast speech, restrictions on the speech of public employees and soldiers, and other violations done “in the public interest.”
Jason
May 24, 2007
It’s a trap!
geri
May 24, 2007
I agree that there has to be protections for those who can’t protect themselves such as the children. I have four and I am willing to protect them with my life if neccessary.
But I do see the point that the governement has, once again padded what we believe strongly in (protecting our chidren) with privelages to themselves that overstep the bounds.
They tag on that little bit about the fact that, besides all this, if they say they don’t like it than it’s unlawful. That gives them more power and the last thing our government needs right now is more power. In fact they need to be downsized because they are becoming the biggest threat to America.
Corey Mondello
May 24, 2007
piss off Bush and you will “disapear”.
His cult is the new ‘Mafia’.
Fraud Guy
May 24, 2007
Is it the issue that there are exceptions to free speech, or that certain uses/abuses of that right can be subject to penalty?
I can say what I want, but if I lie to people to defraud them, I can suffer consequences. This applies to personal and commercial speech.
geri
May 24, 2007
I think the issue goes beyond the exceptions to free speech. If you are hurting or endangering someone else than you are breaking the law. That’s logical.
I think it’s more that we are being told that if our free speech disagrees with what our leaders say…whether they are right or wrong…than we are breaking the law.
This is wrong. If we can’t disagree with our leaders in this country than what was the point of all those men and women who died to give us the right to think and speak for ourselves?
Richard Braakman
May 24, 2007
Hm? I’ve always assumed that freedom of speech includes the freedom to lie, and I’m surprised to see people here claim that it doesn’t. If there’s no freedom to lie, then you set the government up as the arbiter of official truth, and that’s a very dangerous situation.
There are good reasons to forbid fraud, but “free speech does not include the freedom to lie” isn’t one of them.
Kris Overstreet
May 24, 2007
If there is freedom to lie, then how could fraud ever be prosecuted?
bernarda
May 25, 2007
Christopher Hitchens discusses the “yell fire” case at a Canadian university.
He goes on to more questions about freedom of speech.
Though geri makes a good point, I disagree with this “If you are hurting or endangering someone else than you are breaking the law. That’s logical.” to a large extent.
What defines “hurting or endangering”? As Hitchens says, the “yell fire” case was against anti-war protesters who were then kept in jail. In fact, it was President Wilson who was “hurting and endangering” someone else. So are Wilson’s speeches in favor of going to war something to be protected from?
Richard Braakman
May 25, 2007
Well, misrepresentation of what you are selling is a form of not honoring a contract. They key difference between fraud and ordinary lies is that there is an exchange of property that hinges on it, and that always involves a contract or binding agreement of some kind.
Kris Overstreet
May 25, 2007
Richard, refusing to honor a contract is a lie.
All lies may not be illegal, but you cannot punish someone for breaking contract if they have the right to break their word- to lie, in short.
Richard Braakman
May 25, 2007
Hm. Remember that I’m talking about a right to lie that is part of the freedom of speech. Refusing to honor a contract may be a lie, but is it a form of speech? Only if the refusal is itself a form of expression, I would say. There’s a similar distinction between burning a flag because it’s old and needs to be destroyed, or burning a flag as a political statement. The former is not speech.
Note, I don’t necessarily accept your definition. Refusing to honor a contract is primarily a refusal. Whether it involves a lie — untruth or misrepresentation — depends on what is being refused. But I don’t think that affects my reasoning above. I don’t think you can retroactively define a broken promise as a lie, anyway; the promise may have been sincere when it was made.
Thinking about this matter did remind me of one case where speech is necessarily involved: non-disclosure agreements and the breaking thereof. If a contract can limit one’s speech, and it’s enforcible, then that means that contracts trump this right in the first place.
Of course, defining reasonable limits on what contracts can be enforced is a thorny issue and I’ve been wondering how a Libertarian state would handle this. Can one sign away basic rights?
socialflea
May 25, 2007
So should I watch if I yell “TORNADO” when a thunderstorm comes while at May fest?
Fraud Guy
May 26, 2007
Richard Braakman,
Fraud entails theft of something of value via deception, not necessarily property. The legal scholars can debate intent, but demonstrably false information given to secure a contract (which is why I personally and professionally feel that contract sections that state that “all prior agreements and representations, whether verbal or written, that are not part of this document are not considered enforceable” are basically a license to lie–I refuse to sign such contracts) should be enforceable.
nick
May 26, 2007
if i yelled “fire” at a crowded theater, the natural human instinct is to look in the direction of the alleged fire. once somebody realized there was none, i’d quickly become the shepherd who cried “wolf!”
you buy the same brand of groceries every time you go to the store, don’t you? isn’t that because you trust the companies who make the items you buy? and if you had reason to believe otherwise?
of the people you interact with every day…do you not have a good idea who’s honest, who’ll over-promise and under-deliver, and who’ll just outright lie?
every one of us knows right from wrong. every one of us feels a gut instinct when somebody may be trying to deceive us. why aren’t we listening to it?
trust…reputation…common sense…what ever happened to those things? who ever decided that we should be so out of touch with our primal instincts that we need pages of legislation and hours of time to define a fragile intricate web of laws that gets to such mundane situational details as what is and what isn’t allowed speech?
Verbos
May 26, 2007
@nick
You forgot the biggie, “Personal responsibility”. Sheeple want someone else to decide for them. Why should responsible people be restricted because of the irresponsible. Let each be accountable for their own actions.
May 27, 2007
That pesky 1st Amendment | Peoria Pundits
Wiccans
May 29, 2007
We have met Wiccans who’s philosophy is Harm ye none!! This is a good thing. If we can all find a way to compromise, the world would be a better place. Did anyone remember the Pilgrims were Muslim so, we were told??? What about 911?? What about the cost of it to all of us??? What about prevention???911 will never go away.. All of us will pay for it forever!! We have to find a better way before we destroy the world!! What about a compromise????? Could we all come to some sort of agreement and bring the troops home???What if that dead troop was your father, brother or relative?? What is the solution???
I am me!
Jun 02, 2007
To me, the issue of pornograpy is one of WHO defines what is porn and why. It’s always seemed to me that those who would forbid porn are in effect telling me what is or is not moral to show or see in images or describe or read in print. My problem with that is that NO government is my minister, priest, confessor, moralist, or parent — and they have no right to attempt to act as such. When governments establish what is to be regarded as pornographic or not, I feel they (or the majority they claim to represent) are trying to act as if they are my source of morality. So I’m puzzled as to why I’ve never heard of anti-porn laws being challenged on the grounds that they violate the establishment of religion clause in the First Amendment to the Constitution. As for laws prohibiting child-porn, I’d love to see law enforcement officials treat such images as proof of rape and abuse of the children shown by the perpetrators in those images and by the producers and distributors of child porn….
Louis
Jun 06, 2007
Say what you have to say without fear, they will come for you anyway.
MarkN
Jun 06, 2007
Though the Declaration of Independence is not a legal document, it radically proclaims the right of the people to throw off a government that displeases them. The means of such an overthrow do not have to be peaceable. If people have the right to determine the government that they want, then they must have the right to talk about how to achieve their goal. That means advocating violent revolution if necessary. Obviouly, a restriction on speech that would lead to overthrow of the government is designed only to protect government and not the people. George III wanted to round up and punish all the leaders of the American Revolution, the people we (supposedly) venerate, because they were traitors and advocated violence. It is at least ironic that a country founded upon violent overthrow of an existing government should attempt to restrict the means of its own creation.
Michael Hampton
Jun 06, 2007
Ironic perhaps, but not at all surprising. Every government moves to consolidate its power and to remain in power. Restrictions in law on violent overthrow, or talking about it, have existed since almost the moment the Constitution was ratified.
MarkN
Jun 06, 2007
Yes, and the anti-federalists were ultimately correct in their contention that substituting the Constitution for the Articles of Confederation would lead to a centralized dictatorship by the Executive. As you point out, the Alien and Sedition Acts were among the earliest laws designed to restrict freedom of speech under the new Constitution. Some of the Founding Fathers were outright statists (e.g., John Adams), while others (Jefferson) were true libertarians. Jefferson thought the Alien and Sedition Acts were unconstitutional and pardoned those convicted under those laws. All this demonstrates that pieces of paper, such as Constitutions, are no guarantors of liberty.
The Threat
Jul 10, 2007
“That’s right, if the government says it has a compelling interest in restricting your speech, then it will do so, and the courts will look the other way.”
And that changes nothing…
Reteo
Nov 16, 2007
When a trade occurs, there needs to be mutual consent. Otherwise, one side is using force on the other.
A contract states that consent is given only if specific conditions are met. If the conditions are not met, then the consent is not given.
Should one receive something under false pretenses, then they are either stealing or enslaving, because without meeting the conditions, such reception is not with the originator’s consent. Therefore, breaking a contract is the same as initiating force on the remaining side that does meet their contractual obligations.