The Freedom of Speech is enshrined in First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Fourteenth Amendment further adds “ nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.
Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). - Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
Tinker v. Des Moines, 393 U.S. 503 (1969). - To use certain offensive words and phrases to convey political messages.
Cohen v. California, 403 U.S. 15 (1971). - To contribute money (under certain circumstances) to political campaigns.
Buckley v. Valeo, 424 U.S. 1 (1976). - To advertise commercial products and professional services (with some restrictions).
Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). - To engage in symbolic speech, (e.g., burning the flag in protest).
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include the right:
- To incite imminent lawless action.
Brandenburg v. Ohio, 395 U.S. 444 (1969). - To make or distribute obscene materials.
Roth v. United States, 354 U.S. 476 (1957). - To burn draft cards as an anti-war protest.
United States v. O’Brien, 391 U.S. 367 (1968). - Defamation speech
Hate and violent Speech
There is landmark case of Brandenburg v Ohio in 1969, which lay the foundation of rules governing hate or violent speech. Wikipedia description of the case is worth reading.
Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution.[1] The Court held that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.[2][3]: 702 Specifically, the Court struck down Ohio’s criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927)[4] was explicitly overruled, and Schenck v. United States (1919),[5] Abrams v. United States (1919),[6] Gitlow v. New York (1925),[7] and Dennis v. United States (1951)[8] were overturned.
Background[edit]
Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, contacted a reporter at a Cincinnati television station and invited him to cover a KKK rally that would take place in Hamilton County in the summer of 1964.[9] Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of “revengeance” against “Niggers“, “Jews“, and those who supported them and also claimed that “our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race“, and announced plans for a march on Congress to take place on the Fourth of July.[10] Another speech advocated for the forced expulsion of African Americans to Africa and Jewish Americans to Israel.[11]
Brandenburg was charged with advocating violence under Ohio’s criminal syndicalism statute for his participation in the rally and for the speech he made. In relevant part, the statute – enacted in 1919 during the First Red Scare – proscribed “advocat[ing] … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”.
David French writes in NYT about recent controversy in universities over hate speech. “For example, surprising though it may be, the First Amendment does largely protect calls for violence. In case after case, the Supreme Court has held that in the absence of an actual, immediate threat — such as an incitement to violence — the government cannot punish a person who advocates violence. And no, there is not even a genocide exception to this rule.
But that changes for publicly funded universities when speech veers into targeted harassment that is “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The First Amendment scholar Eugene Volokh has helpfully articulated the difference between prohibited harassment and protected speech as often the difference between “one-to-one speech” and “one-to-many speech.” The legal commentator David Lat explained further, writing, “If I repeatedly send antisemitic emails and texts to a single Jewish student, that is far more likely to constitute harassment than if I set up an antisemitic website available to the entire world.”
As a result, what we’ve seen on campus is a mixture of protected antisemitic (as well as anti-Islamic) speech and prohibited harassment. Chanting “Globalize the intifada” or “From the river to the sea, Palestine will be free” at a public protest is protected speech. Tearing down another person’s posters is not. (My rights to free speech do not include a right to block another person’s speech.) Trapping Jewish students in a library while protesters pound on library doors is not protected speech, either.”
David French writes great concluding paragraph; “Confronting hatred with courageous speech is far better than confronting hatred with censorship. It is obviously important to protect students from harassment. I’m glad to see that the Department of Education is opening numerous Title VI investigations (including an investigation of Harvard) in response to reports of harassment on campus. But do not protect students from speech. Let them grow up and engage with even the most vile of ideas. The answer to campus hypocrisy isn’t more censorship. It’s true liberty. Without that liberty, the hypocrisy will reign for decades more.”
Obscene Speech
Obscene speech is not protected under First Amendment. Initially courts had hard time defining “Obscene”. Even one judge remarked, I know it is obscene when I see it. Ultimately in Miller v California 1973, Chief Justice Warren Burger outlined what he called “guidelines” for jurors in obscenity cases. These guidelines are the three prongs of the Miller test. They are:
- (1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” or “a shameful or morbid interest in nudity, sex, or excretion.”
- (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Defamation Speech
The courts mostly want to err on the side of allowing more freedom of speech than restricting it. It is especially important in cases of public officials who are accountable to public and need scrutiny of their actions by the public and press without fear of defamation law suits which may have chilling effects on free speech. Error is inevitable in any debate and courts do not hold it against the defendant as long as there was no intentional aspect in the error.
When it comes to prosecuting defamation, the law treats regular citizens and public figures or celebrities on different standards. Because criminals, celebrities, and other categories of people that are common topics for discussion and media coverage have in some sense agreed to be talked about, when they sue for defamation, they have a higher burden of proof.
Public Figures & Celebrities; For defamation to be successful the public figures have to prove that not only the published report was false but also the malice. Constitutional actual malice means that the defamation was published with knowledge that it was false or with reckless disregard of whether it was false. Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered. They also have to prove the damage it caused, such as out-of-pocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering.
Private Citizens; Private citizens have to prove only that the information published or statements made against them are false and they do not have to prove malice. They have to prove the damage it caused and the compensation will be limited for actual provable injuries, such as out-of-pocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering. If Private Citizen also prove actual malice, then they will be entitled as well to collect punitive damages.
Recently two Georgia election workers won about $150 million verdict against Rudy Giuliani in defamation law suit. They, as private citizens, proved that Rudy not only made false statements against them, but did so with malice. They won compensation as well as punitive damages. The jury awarded Ms. Freeman and Ms. Moss a combined $75 million in punitive damages. It also ordered Mr. Giuliani to pay compensatory damages of $16.2 million to Ms. Freeman and $16.9 million to Ms. Moss, as well as $20 million to each of them for emotional suffering.
There are three level of evidence used in courts. The ” defamation” cases require clear and convincing evidence. The three level of evidence are;
Preponderance of Evidence; To prove an element by a preponderance of the evidence simply means to prove that something is more likely than not. In other words, in light of the evidence and the law, do you believe that each element of his/her [claim/counterclaim] is more likely true than not? It has greater than 50% chance of being true. This is mostly used in civil cases.
Clear and convincing evidence; According to the Supreme Court in Colorado v. New Mexico, 467 U.S. 310 (1984), “clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue. In other words, the fact-finder must be convinced that the contention is highly probable. In percentage the evidence is about 85% true.
Beyond Reasonable doubt; This level of evidence is used in criminal cases. This means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict. In percentage the uncertainty is about 98%. Beyond reasonable doubt does not mean from any doubt, but the doubt one may have is miniscule, less than 2%.
Sources; I have cut and pasted some parts of the article.