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Free Speech

by webmaster last modified 2007-12-03 10:56 PM

Perhaps the single most important element of American democracy, our free speech rights are guaranteed by the First Amendment.

Web Sites on the First Amendment/Free Speech

Here are some good sites to read and explore to find out more about your free speech rights:

One of the best sites we've found covering a full range of First Amendment topics (including free speech) is the First Amendment Center of the Freedom Forum.

The ACLU Free Speech Page --The ACLU has a long history of defending those who have suffered for exercising their free speech rights. They've posted an extensive listing of press releases describing free speech issues of all types.

An excellent introduction to free speech can be found on the web site of the Electronic Privacy Information Center (EPIC). The article goes on to discuss free speech in the context of the Internet and other current technologies.

The Free Expression Policy Project (FEPP) focuses on censorship aspects of free speech.

First Amendment Cyber Tribune (FACT) provides excellent and extensive information and links covering all aspects of the First Amendment, including freedom of speech.

The Copley First Amendment Center also maintains a web site with comprehensive information on all aspects of the First Amendment.

Some Basics

The free speech provisions of the First Amendment guarantee individual Americans the right to speak freely on all matters, subject to certain restrictions, which include:

  • Obscenity--speech that (1) an average person would find to appeal to the prurient interest, (2) depicts or describes in an offensive manner specific sexual conduct, and (3) lacks serious literary, artistic, political or scientific value.
  • Fighting Words--speech, directed at a person, that is likely to provoke retaliation, thereby causing a breach of peace. This is based on Chaplinsky v. New Hampshire , a 1942 Supreme Court case in which Chaplinsky called the Rochester, NH City Marshall a "God-damned racketeer" and a "damned fascist." Most legal experts contend that the "fighting words" argument has been largely abandoned by the courts and that offensive speech such as that of Chaplinsky is now given full constitutional protection. However, there continue to be isolated exceptions.
  • Incitement--speech that is likely to incite "imminent lawless action" or where there is a "clear and present danger", or threat. The classic example of this type of speech would be yelling "fire" in a crowded theater.
  • Time Place and Manner--Regulation of the time, place and manner of speech is permissible as long as the regulation is content-neutral and does not interfere with the message--for example, events on a college campus.  However, restricting on-campus speech to "free-speech zones" can be overly restrictive and therefore unconstitutional.   
  • Defamation (Libel/Slander)--Libel and slander are both forms of defamation (harming a person's reputation through false statements), libel being the written (or permanent) form and slander the spoken (or transitory) form--a better definition can be found here. Individuals who are "public officials" or "public figures" must prove that the defamatory statements were made with "actual malice", while "ordinary" people need only prove that the false and damaging statements were made carelessly or negligently.

More on Defamation

Defamation represents perhaps the greatest risk to those exercising their free speech rights, and so is discussed in greater detail in this section. Two excellent introductions to defamation law in the US have been posted on-line by the Freedom Forum and the Abbott Law Firm.

The term "public official" is self-explanatory, but what constitutes a "public figure"? A "public figure" is an individual well known in the community. In terms of school personnel, defamation case law has established that at least school principals, high school teachers and coaches are public figures for purposes of the actual malice standard.

Strategic lawsuits against public participation, known as "SLAPP" lawsuits, are often filed by government officials, corporations and people with substantial resources against individuals with limited resources in order to silence their speech. SLAPP lawsuits specifically threaten speech protected by the petition clause of the First Amendment ("Congress shall make no law abridging the right of the people to petition the Government for a redress of grievances"). A good overview of SLAPP lawsuits is provided by the First Amendment Center of the Freedom Forum, and a 2002 update indicates they are still prevalent. Several states have enacted anti-SLAPP legislation to deter these types of lawsuits--the current status of such legislation by state is shown here.

Lawsuits alleging on-line defamation are becoming much more commonplace since people tend to be more spontaneous and hence less cautious about what they write in e-mails or post in on-line bulletin boards. The defamatory message need not be viewed by a large audience, either.

Journalists also face constant risk of defamation lawsuits--a summary of defamation as it applies to journalists is provided here.

Student Free Speech

Students in public schools have some in-school free speech rights, as determined largely by Supreme Court cases decided over the last 60 years or so. The ACLU web page on student free speech rights provides a simple introduction to the subject. A good history of student free speech is provided in this article and many recent examples of free speech issues in schools are provided here.

One way public school students express themselves is through the clothes they wear. Students have been suspended for wearing a variety of shirts, including a Pepsi shirt worn on Coke day, a pro-war T-shirt, an anti-George Bush T-shirt  (the ACLU filed a lawsuit and won), a pro-life T-shirt, an NRA T-shirt, a Twin-Towers T-shirt, a redneck T-shirt (update here), a T-shirt with a Confederate flag on it (more on Confederate apparel here), a lesbian T-shirt, an anti-discrimination T-shirt, an anti-homosexuality T-shirt and a T-shirt with the name of a band on it--Korn.  Student free speech includes the ability to voice one's opinions openly. A 2001 court decision held that schools do have the authority to ban T-shirts containing offensive, vulgar or highly disruptive messages (thanks to in loco parentis), but may not restrict speech that is political (such as on issues of abortion, war, political figures, sexual preference, cola preference, french fries, etc.).  This general concept extends to other forms of student expression as well.

Student also have in-school free speech rights as related to both school-sponsored and underground newspapers. The Student Press Law Center (SPLC) focuses on student press issues, and has compiled a lengthy article detailing the rights of students to publish off-campus newspapers and web sites. In general, schools may restrict the content of school-sponsored publications but have less control over opinions voiced in newspapers or pamphlets published outside of school but distributed on school grounds, provided the content is not obscene or libelous, does not incite other students to break school regulations or the law and does not create a "substantial disruption" of school activities. A recent case illustrates how one school district has rewritten its policies to allow the distribution of underground newspapers at school. While schools have been censoring most school-sponsored publications as "non-public forum" speech since the 1988 Hazelwood decision, a landmark court decision in February 2003 has now clearly defined the criteria in a way that would result in most public school newspapers being considered as either "public forum" or "limited public forum", and this speech may be censored only if it causes a "substantial disruption" in the school environment (the Tinker standard).

For public school students, off-campus speech is protected by the First Amendment and is not subject to regulation by the school unless it causes a "substantial disruption" to school activities. Off-campus student computer use has been an area of much activity (and litigation) in recent years as growth in Internet use by students has outpaced the ability of most school administrators to understand it.

Students at private secondary schools typically have fewer free speech rights than do public school students. This is also the case for students at private colleges.

Public colleges and universities (and those receiving substantial federal funds) generally do a better job of understanding and allowing free speech by students, but not always--at Harvard Business School, for example, protected speech was recently sanctioned , but the situation was quickly corrected. In another case, an off-campus student website providing critiques of professors had been challenged, but the challenge was ultimately dropped. (That web site has now evolved into and reviews professors at most colleges and universities.) A recent (April 2003) court decision has held that student newspapers at public colleges and universities are not subject to prior review or restriction.

One organization that closely watches over free speech rights at American colleges and universities is the Foundation for Individual Rights in Education.

For more on the free speech of students and professors in colleges and universities, visit the First Amendment Center of the Freedom Forum.

Employee Free Speech

An excellent summary of employee rights, including free speech, is located at the ACLU of Massachusetts web site. Aside from public employees, union members and contract employees, the vast majority of workers fall into the category of "employment at will" and have limited free speech rights while at work. A good history of teachers' rights in Utah, including free speech, is available here.  Public school teachers and other public employees do enjoy the right of free speech on matters of public interest, and should not be subject to gag orders.

Anonymous Speech

Anonymous speech is fully protected by the First Amendment, and in fact dates back to the roots of our country. Though often decried as "cowardly" and inviting abuse, there are many legitimate reasons for anonymous speech--when there is fear of reprisal or retaliation, for example, for criticizing an employer or expressing unpopular views. A good discussion of anonymous speech can be found here .

With the advent of the Internet, anonymous speech has proliferated . Postings in chat rooms typically indicate e-mail addresses, but not names. ISP's are today increasingly being forced to divulge the names of customers who have been alleged to have committed some improper act (in on-line defamation lawsuits, such information is subpoenaed during the discovery process). Many organizations are today fighting to protect on-line anonymity rights.

For those seeking additional protection of their anonymity in e-mail communication, "remailers" offer a free service (free because even they don't know who to charge!) that allows e-mails to be sent without revealing the e-mail address of the sender. Read more about on-line anonymity here. Of course, anonymous speech carries with it great responsibility--if you engage in illegal, harassing, threatening or defamatory speech, then you should understand that your anonymity may be compromised by law enforcement authorities or through the legal system.

There are many anonymous remailers to choose from--select one and send an anonymous message--it's your right! Click here for more information.

Many great Americans have made statements supporting free speech and freedom of the press.

Last updated November 2004

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