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6 Surprising Exceptions to Freedom of Speech

Published: March 21, 2017

Although the First Amendment to the Constitution states, “Congress shall make no law… abridging the freedom of speech,” Americans don’t have the luxury of always saying whatever they want. Your right to free speech is limited by where you are, what you say, and how you say it.

Here are six areas where your talk can make you liable in criminal or civil court.

1. Obscenity

 Most of the legal cases that concern sex and free speech have involved publications (a form of speech as far as the courts are concerned). Obscenity is not protected by the Constitution, but it has been difficult to define what is obscene. In 1973, the Supreme Court, in Miller v. California, came up with a three-part definition of obscene material. A work is legally considered obscene if

  • an average person, applying contemporary community standards, would find that the material appeals to prurient (appealing to sexual desire) interest.
  • the work depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law.
  • taken as a whole, the material lacks serious literary, artistic, political, or scientific value.

This limit on obscene speech also applies to broadcasting. The FCC controls what is allowed on air, so you can’t broadcast sounds or images that could be offensive to your audience or use language inappropriate for children.

However, the Supreme Court has, so far, kept the internet free of obscenity restrictions. You can make whatever statements you want on social media sites, but the owners of those sites have the freedom to censor or delete your content if they find it offensive.

2. Lies

Lying is covered by the First Amendment, except when it’s not. You can be prosecuted for lying under oath in court (it’s called perjury). You can also be charged with misleading authorized investigators. Remember Martha Stewart’s conviction in 2004? She went to prison for lying to investigators about her stock trading.

It is also illegal to run dishonest advertisements. And if you deliberately tell lies about people, you can be hit with a lawsuit in civil court for either libel (if published) or slander (if spoken).

Politicians, on the other hand, have broad protections against being prosecuted for lying, and citizens largely have free rein to criticize their governments, even if the comments are false. Luckily for late night talk show hosts, the First Amendment allows citizens to satirically mock a public figure.

3. Violence

You can’t make offensive remarks or personal insults that would immediately lead to a fight. You also can’t threaten violence to a specific person unless you’re making an obvious exaggeration (for instance, “I’m going to kill my opponent at the polls”). Finally, you can’t knowingly say things that cause severe emotional distress or incite others to “immediate lawless action.”

In 1951, the Supreme Court concluded in Dennis v. United States that the First Amendment doesn’t protect the speech of people plotting to overthrow the government.

4. Students’ Speech

Students have limited rights of free speech while in school. In 1986, Bethel School District v. Fraser upheld the right of a school to suspend a student for making an obscene speech. Hazelwood School District v. Kuhlmeier, 1988, supported a school’s right to censor student newspapers. However, many states are now passing laws to grant broader First Amendment protections to student speech.

5. Offending Your Friends and Coworkers

You don’t have the right to say whatever you want in someone else’s home or other private setting. And, as an employee, believe it or not, you have no free-speech rights at your workplace. The Constitution’s right to free speech applies only when the government — not a private entity — is trying to restrict it. For example, an employer can legally fire an employee whose car bears a campaign bumper sticker he doesn’t like.

It’s a different matter for government employees. In Elrod v. Burns, the Supreme Court ruled in 1976 that the Constitution prohibits government employers from discharging or demoting employees for supporting a particular political candidate.

The law also prohibits speech that shows clear intent to discriminate or sexually harass.

It also prevents employees in medical or financial fields from discussing confidential information outside of work.

6. Expressing Your Political Views

The law has never permitted Americans to protest in any way they wanted. While the government can’t control what you say, how you say it must be subject to what the courts consider an appropriate time, place, and manner.

Legal authorities have a responsibility to protect the safety of attendees at political gatherings and to protect protestors themselves. If authorities think you pose a sufficient risk, you can be restricted to a Free Speech Zone. These have been used since the 1980s, principally to contain protestors at political conventions.

House Bill 347 authorized Secret Service agents to arrest anyone protesting in the president’s or vice president’s proximity. They also have this authority at National Special Security Events. These events have included state occasions, of course, but also basketball championships, the Academy Awards, Olympic events, and the Super Bowl. A conviction can result in up to 10 years in a federal prison (another place where your freedom of speech is limited).

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