Understanding The Freedom Of Speech: What It Protects And What It Doesn’t

We map the freedom of speech by categories, separating protected ideas from unprotected harms like libel, obscenity, true threats, and incitement, and explain why political speech sits at the core. We also clear up the biggest myth: there is no “hate speech” exception in American law.

• meaning of “the” freedom of speech and core protection for political speech
• libel and slander as tort-like harms outside First Amendment protection
• evolution of incitement doctrine culminating in Brandenburg
• line between ideas and conduct, including true threats
• symbolic speech, flag burning, and viewpoint discrimination
• why hate speech is not a legal category, Terminiello and Matal v Tam
• compelled speech, Barnette, and modern edge cases
• time, place, and manner rules and content neutrality
• permits, sign regulations, and Citizens United’s narrow holding
• schools, social media, and emerging questions for speech online

Check Out the Civic Literacy Curriculum!

School of Civic and Economic Thought and Leadership

Center for American Civics

Chapters

• 1:32 Setting The Free Speech Agenda
• 2:04 What “The” Freedom Of Speech Means
• 3:17 Libel, Obscenity, And Fighting Words
• 5:43 Incitement: From Bad Tendency To Brandenburg
• 9:09 Ideas Versus Conduct And True Threats
• 10:44 Symbolic Speech And Viewpoint Discrimination
• 14:12 Hate Speech Myths And Key Cases
• 20:19 Compelled Speech And Public-Sector Limits
• 22:09 Time, Place, And Manner Rules
• 24:56 Sign Rules, Citizens United, And Neutrality
• 26:27 Wrapping Up Free Speech Themes

Transcript

SPEAKER_00: 0:46

Welcome back to Civics in a year, where we're today going to talk about freedom of speech. We have Dr. Sean Beyenberg back with us. We're kind of dissecting the First Amendment because there is a lot to it. And previously we had talked about the freedom of religion, and there's three different episodes on that because, again, there's a lot to it. So, free speech today, Dr. Beyenberg, what is free speech?

SPEAKER_01: 1:11

We couldn't do free speech in a year with how long the doctrine and how convoluted this one is. So I will try to stay on the essentials. So one thing that I think is easy to miss is we say freedom of speech, but the text actually says the freedom of speech. And that's because there were certain things that were sort of understood to be outside of that sort of traditional understanding of freedom of speech. So, and we'll come back to some of these later. But for example, libel was never assumed to be a part of the freedom of speech. That's one that was out. Originally, obscenity, or excuse me, uh it was held to be outside the freedom of speech, which actually still remains true. The doctrine has more or less just gotten more squeamish about saying what is obscenity. It's harder to gauge, but conceptually, obstinate obscenity remains outside the protection of the freedom of speech. We will later on potentially we'll come back and talk to you. Uh the courts have held that categories of words like fighting words are potentially outside the freedom of speech. But that's one where the courts have maybe softened a little bit. And for example, an idea that there's hate speech has been alleged by some to be beyond the freedom of speech, but it's it's that is not an exception that the court recognizes. So things like obscenity, things like libel. What is libel?

SPEAKER_00: 2:32

So for listeners who aren't sure, what is libel? Sure.

SPEAKER_01: 2:35

Thank you. Yes, uh, appreciate you, Claire. Yeah. So libel and slander, it's effectively these are false statements of fact that cause a harm to someone. And conceptually, the way you can think of this is that it's a property claim. Because, for example, if you, Liz, say Professor Beinberg is super racist, and I heard him say this thing, and that you know, ASU fires me and I can't go get a job, I have suffered a property loss the same way as if you had backed up your truck into my house and like knocked a wall in, right? That has cost me money. So, libel, uh effectively, if that were to happen, I would sue you and say, you have said something that is factually untrue and it caused me financial damage. You effectively then need to compensate me for like what my earnings would have been if I'd lost my job. So that's part of why the court can understand it outside freedom of speech, because in some ways it's closer to like a tort kind of a claim where your property has been damaged. So the court has held that that's outside of it. The court, I'll talk about this in a little bit later, but has held that things like incitement are basically unprotected by freedom of speech. Effectively, when the line crosses to look more like conduct than speech and ideas, the court holds that that is. Those cases get really complicated because you can be committing an act that's sort of an action and sort of speech. But basically, basically, stuff that looks much more like conduct is uh less protected. Stuff that's more about ideas is more protected. Clearly, at the core of it is political speech, is the sort of the fundamental, very, very center of the purpose, but it's not the exclusive purpose uh of freedom of speech. So there's a way you can think of it as these are exceptions, but the way that I think of it is these are the freedom of speech was never held to include these parts of it. And state constitutions write this a little differently, but this largely tracks with how the state constitutions have dealt with speech uh as well.

SPEAKER_00: 4:39

So freedom of speech is not an absolute thing, right? That it's not covering every little thing that we're thinking about because you know you brought up obscenities and it made me giggle a little bit because of the I know it when I see it, right? I had to I had to teach that in AP government. When you talked about incitements, can you get a little bit more into what that means?

SPEAKER_01: 5:04

Right. So effectively, the the way that the court has thought of, and we'll confine it to political speech for now. Um I do want to back up though, because you said we can think of freedom of speech as not absolute. The better way that I think of it is we should think of freedom of speech as not being all capacious, that basically not everything falls within it. Rather, I and I just say that because if we say it's not absolute, that ends up basically turning into more of a balancing test kind of an issue. Whereas like this is super important or super offensive, and that's not the way that the court tends to think of it. It's instead more categories. These are categories that are within that freedom and outside that freedom. So to your question about incitement, so a really, really brief sort of summary of the way that the courts have thought about this. So for much of American history, the court used a test that was not very protective, and this was mostly lower courts, called bad tendencies, in which speech that had a bad tendency to cause illegality or chaos or disruption of the public peace was unprotected. Unsurprisingly, that's not a very protective standard. And that falls away over the 1920s, and the court moves toward what's called the clear and present danger test, which is sort of comes and fits and starts, but moves basically by the 50s is the standard they're using, in which they're has to fire in a movie theater. Nominally, yes, although that analogy is really bad uh for various reasons that I think you folks will talk about in more detail. I I think that's even a specific case. I think that's later on. So I'm not going to get too into that one. But the court moves toward effectively saying, no, there has to be a pretty clear and tight connection between speech and something illegal that's going to happen or something dangerous that's going to happen. And then in the 1960s, the court really tightens that up to say, in a case called Brandenburg, which remains the operative test today, which effectively says that political speech can be restricted if it is inciting imminent lawless action. Right. So like we let we should go do this thing right now, because the court is conceptually saying at that point it's closer to the action itself than just saying, like, and so in that particular case, it was a group of Klansmen out in a forest saying there should be some revengeance taken against the U.S. government, right? And independent of a crime against good grammar, as I like to joke, when they're saying revengeance, this is not a this is not an articulable act, right? It'd be very different if they said we should all go, you know, attack that government building, grab the, you know, grab your torches and let's go do it, right? That's incitement. But just saying we really don't like the government and we wish there would be revenge taken on it, the court says that is closer to ideas than action. And so incitement ends up being basically the framework for particularly stuff that falls within that freedom of speech. But that's that that's effectively the standard that the court wants to use. Now, the court does similarly in terms of thinking of categories, and I think that I think that the conduct framework helps us because, for example, true threats are another thing that the courts have held are unprotected, right? I am going to kill you, right? Like that, like that is a basically a in a way that is different than I don't like you or you have terrible ideas or and so again, these get really messy in terms of the fact pattern of is this actually a true threat? Is this actually incitement? But the conceptual framework, I think, is pretty clear, which is the closer it is to conduct, the less it's protected. The flag are we doing a flag burning podcast as one of the standalones? I can't remember. Do I if we're doing the flag burning ones, uh, I'll give it really short. But right, this is a complicated case in which the court has basically, you know, in theory, this isn't about, as the dissents say in those cases, you're not necessarily expressing an idea when you burn a flag, right? That they're saying, like, you're not actually saying something. And the majority wants to say, yeah, you are still saying something. You are saying that you are fundamentally disapproving of US, the US government, US policy, et cetera. And the court effectively says, if the government is passing a law that like nobody can burn anything made out of nylon for environmental reasons, that's fine. But the court basically builds up kind of doctrine saying, particularly viewpoint discrimination, saying the government can't say these ideas we like and these ideas we don't like. So if the Boy Scouts can burn a flag reverently, then we can't say, except those filthy hippies, can't burn the flag irreverently. You can either burn everything or burn nothing because you're caring about the actual act itself. But if you're trying to suppress conduct because you're trying to suppress the ideas, then the court says that's that's a problem. That kind of speech uh is protected. And there's similar things with like there's cases on like cross-burning, and those get really messy in terms of the fact patterns. But conceptually speaking, the court basically wants to say if the government is trying to stop you from doing this because the conduct itself is a problem, that's probably okay. If they're trying to stop you because they don't like your ideas or they don't like who you are as a speaker, that's the core of what the First Amendment is supposed to protect in those grounds. And I do think, so yeah, hopefully that covers uh incitement. Again, students then always like to say, well, what about this? If they say, like, let's go do this in like 30 minutes or 40, like that, that's I'm not getting bogged down into all that. But the framework I think is pretty clear.

SPEAKER_00: 10:43

So you alluded to at the beginning hate speech. And what are the limits on hate speech? Because it's funny, I actually talked about this in my CEL 100 class. It was brought up that hate speech shouldn't be a thing. And I asked the student, well, what is hate speech? And they really had a hard time coming up with a standard definition. So what allows the government to restrict hate speech?

SPEAKER_01: 11:15

And the answer under the court's doctrine is nothing. The hate speech is not a category that the court has said is beyond the freedom of speech, largely on the grounds that you alluded to. So uh there's a there's a case that I think is actually the so the clearest explanation of the logic of this, even though ironically it's in a dissent. So it's a 1949 case called Termanyello v Chicago. And in that case, effectively, the fact pattern is really complicated, but effectively there is a group of fascists in a room in a gymnasium giving lectures that are both racist and then also anti-communist. So you have basically communists outside throwing bricks inside, and the Nazi fascists inside complaining about them. And the police are trying to keep the cordon. And eventually the cordon fails, and there's a riot, and they charge the guy with breach of the peace, and he says this violates my freedom of speech. And the dissent wants to say, look, there's actually, even under clear and present danger, we probably should let this prosecution happen. They're not prosecuting him because they don't like his ideas. They're prosecuting him because a clear and present danger of violence happened. And how do we know that? Because there was a literal riot. The police were trying to protect this guy talking. But and that's the majority says, if we let basically people say we don't like hearing what those fascists say, stop them. That creates, they don't use this phrase, but later cases do, a heckler's veto, where someone can say, I'm offended, you don't get to say that. And the courts increasingly have said, no, in fact, maybe that's a core purpose of freedom of speech. But in the term in yellow case, the dissent wants to say the fact pattern here means we should allow this prosecution. But fundamentally, he's actually closer to the majority because he says very striking language, like, look, speech is protected, whether it's and he says, pro this religion, that religion, pro this race, that race. He says government does not get to basically pick what it wants in terms of good speech and bad speech. It basically he says there needs to be an utmost freedom of utterance. Courts shouldn't be turned into uh organs of popular intolerance, effectively veto points. But he he says it says, look, if the purpose of this is not to suppress the guy's ideas, government should be able to do it. But he's very explicit and says really offensive speech ought to be protected. If it's and he goes through and says basically racist, you know, not racist, pro-ro-Catholic, anti-Catholic, pro-Protestant, whatever, right? He says that should be protected. Again, even in the dissent, which I think is interesting. And we see this, this is a theme that I think we overstate the level of disagreement on the Supreme Court in terms of the number of cases. Most cases are boring statutory stuff nobody cares about. There is, I think, increasingly a disagreement in sort of constitutional philosophy. We'll talk more about how to interpret the constitution between sort of originalists and so-called non-interpretivists or living constitutionalists. But one thing that there is agreement on, and 9-0 case a few years ago, Metal Vam lays this out very explicitly, where they say there is no such thing as hate speech. This is not a concept that we recognize in law, because people are going to say, and who's to who's to determine what counts as hateful and who's going to be able to claim this is offensive? And so everybody from Sotomayor, who I think was considered the most progressive justice at the time, to Clarence Thomas, who was considered sort of the most conservative justice, if we want to use those labels, agree that as I've laughed to my students, the concurrence that's written by Kennedy with Sotomayor joining, if anything, they're arguing it should be even more aggressively protected on freedom of speech. Now, how do I word this delicately? This will not stop people from appearing on your favorite cable news show. And I can think offhand of examples from both parties in recent memory who have said hate speech is unprotected, or every knucklehead on Facebook that says that. They are wrong. There is no category of hate speech that the court recognizes. It doesn't exist. It is not like true threats, it is not like incitement, it is not a thing. The fact that someone doesn't like something, the courts have held, if anything, is grounds to be more protective of it, not less protective of it. Now that doesn't mean that the courts have said that you can't have a hate crimes legislation. So legislate so law, but it's different, right? And so that the courts have basically said something that we can all agree is fundamentally wrong, so say murder or vandalism or something, right? The thing is wrong in and of itself. The state can suppress that in and of itself. The court said nine-zero case, scalia in the majority, scalia in the opinion, if you want to sort of, you know, again, do the sort of left-right thing, says if the thing is fundamentally already banned, you can add basically a kicker if there's done for a hateful reason. So like you can add extra years to the penalty. But you can't make something that is fundamentally protected unprotected because it involves hate. And in this case, speech is fundamentally protected. It doesn't suddenly become unprotected because uh it involves involves sort of ideas that some people think are hateful. So the Metalvi TAM case, again, about 10 years ago, I think lays this out pretty clearly. But I also think that that Termaniello case from 49, Robert Jackson's, again, ironically, the dissent, I think lays this out really, really well. That the purpose of speech is not to suppress offensive ideas, it's in fact to sort of promote and protect dispute and disagreement in the society in which we're supposed to argue about things. Civilly, ideally, but civil is civility is not a requirement of freedom of speech. It's a good practice, it's one thing that's prudent because it's persuasive, but it is not a requirement.

SPEAKER_00: 17:06

I'm glad that you brought up Mattel V. Tam, because that is actually the case I taught in class because it was fun to talk to the students about, you know, the the quick summary of the case. Simon Tam wanted to register his band's name. They were called the slants. Simon Tam is an Asian American. And part of his argument was he's trying to kind of take back that word, right? It was a very disparaging word. He's trying to do that. And the office was like, no, there's something called the disparagement clause. And it was really fun to talk to students through that because we can't have laws that say, well, this group can do it, but this group can't. It's like this is kind of an all or nothing. So Simon Tam trying to reclaim this, and it was actually fun, and this is just kind of an aside. There, my kids were on Twitter while we were doing a moot court, and Simon Tam actually interacted with the students. Oh, that's fun. And he had the the slants have a song about this, but it it's a good case to talk about, especially when we're talking about, you know, disparagement or hate speech, because in this scenario, Simon Tam is an Asian American, and it, you know, looking through the the arguments and things, there's a lot of different examples of this. And I I think that that one is a classroom-friendly version, you know, when you're we're trying to talk about hate speech. But that is, I think that's one of my favorite Supreme Court cases and terminello also because it just lays groundwork, right? My students in my CEL class couldn't come up with a definition of hate speech because what is offensive to me might not be offensive to another person. And so it's hard to come up with that big definition of hate speech. And I'm glad that you brought up hate crimes, right? Because now it's not just speech, it's an act.

SPEAKER_01: 19:09

Right, right, right. And then that I think is generally a good way, generally a good way to think about the exemptions, like that what that the court and similar you can think of this another way too, that they're basically saying are there ideas attached to it? The more that there's an idea attached to it, good or bad, versus conduct, or in the case of obscenity, no idea, right? Or libel as a property damage, right? It is worth flagging just a couple of other things. I know this is probably one of the longer podcasts, but that I since we only get the one, I guess, on speech. Again, we can be here all day, but there's a couple of other doctrines that I want to just flag. So one is the idea of compelled speech, that the government cannot make you say something, that this has basically been held to be kind of the inverse of that. Most famously, a case in Barnett. The court is sort of dealing with the implications of that right now. Again, is the interaction of anti-discrimination law and compelled speech doctrine is something that's popping up in the last in the last few years. But, you know, there's some weird edge cases. So if you are a government employee, you obviously have less freedom of speech. You can't just say, well, I can, you know, tell my boss off and I'm protected as freedom of speech. Well, no, like if you are in private industry, you can't do that. So again, it's not exactly a one-to-one, but those cases are complicated. There is one set of restrictions that I would be remiss if we didn't talk about, and those are so-called time, place, and manner restrictions. And in those, the courts have basically said, again, emphasis on you can't have viewpoint discrimination, you can't have speaker discrimination. But if you want to set neutral rules, no one can run a bullhorn at 2 a.m. Whether this is pro-Donald Trump, anti-Donald Trump, pro-Joe Biden, it doesn't matter, right? We want to sleep, knock it off, right? So if the purpose of that is like to let people sleep, it's fine. You know, if if I'm running a classroom, you don't have the freedom of speech right to start protesting through my classroom and disrupting my ability to do my class. Whether, again, whether you're agreeing, whether you're saying something politically I might support, it is irrelevant, right? Basically, that's you know, a time or a place or a manner. So the courts have basically said as long as it's content neutral and as long as it's basically actually trying to secure some public good rather than suppress an idea, then yeah, the government can do things that sort of at the margins restrict speech, but it's not because they want to change the ideas, right? It's or shape the idea flow or the arguments. It's because people need to be able to sleep. I need to be able to teach my class, you know, during, yeah. So if time, manner, and place restrictions mark affecting speech can happen with time, manner, and place, but it has to be fundamentally viewpoint and content neutral. That the government isn't basically picking winners and losers. Um that's that's a doctrine that folks often lose, but I think is important to remember.

SPEAKER_00: 22:05

So I can't, we can't close a street down to do a protest without a permit because now I'm just obstructing traffic, right? That's not impinging off my freedom of speech. That's a time, place, and manner issue. Now, if we have a permit, that's a totally different issue.

SPEAKER_01: 22:20

Right. And it's sort of and it implicates that one even implicates sort of a conduct thing as well, right? It's one thing if you're like walking on the sidewalk with whatever your statement is, but if you're actually sort of impeding other people's ability to do their thing, then yes. But that that's a that's another another uh great uh example. You get some fun cases. So I think you're from Gilbert, as I recall correctly. There was one from there a few years ago, which effectively was can the government say that political candidates can put a particular kind of sign up on the street, but churches can't. Uh and the Supreme Court struck that down and said, Everybody gets those kinds of signs, or nobody gets those kinds of signs. You don't get to say, these are the kinds of people that we want to have do this. And that's uh, I will say too, maybe this is a long sort of sidebar. That's fundamentally actually what the Citizens United case is about. It's much narrower than people think that it is, but uh, it's effectively that you're not because you've organized as a particular kind of pull of group, corporations effectively don't get less ability to just commission an ad than anybody else does. You either all get to commission ads or you don't get to. Because the law at issue in that case said most people can run ads within this time period, but this group of people can't. So again, it's a much narrower kind of a case than this big sweeping everybody has like, oh, it's about money and speech. It's really not about that at all. It's again, boring and technical. Law, if you're doing it right, is boring and technical, not fun. So I'm not the marketing people for civics in a year, so I can say that.

SPEAKER_00: 23:54

But uh because I disagree. I think it's very fun to like just dig into the words and and really, you know, and for listeners, Dr. Bibert talked about Barnett's West Virginia versus Barnett, and that is a Pledge of Allegiance case. That's compelling speech because, and again, this is we're gonna do a whole episode on Supreme Court cases and the Pledge of Allegiance because personally, for me, the the fight between freedom of religion, freedom of speech, being in a public school compelled speech. It's so interesting that I want to do an episode on it because that's what affects students in classes. And talking about can, I mean, speech is speech is not easy. I thought the religion stuff was hard and we had to do three episodes, which we did. And now I'm like, maybe we need more episodes on speech because it is it's a lot, there's a lot going on, and the court really has to grapple with all of these different things going through the most, I think one of the most recent ones, thinking about the Snapchat case. I do not have a Snapchat because that's just not my generation. But you know, you have certain rights at school, they don't stop at the schoolhouse gate, but young woman put something that the school deemed offensive on her Snapchat, you know, she wasn't at school. And so as technology moves faster, it'll be interesting to see how the court deals with speech and how this goes kind of moving forward. Oh my goodness. Now I see this this, you're right. We could do civics in a year free speech edition. We could maybe that could be for the Constitution's 250th. Dr. Beyenberg, thank you so much.