CONSTITUTIONAL CONVERSATIONS . . .
What Do We Mean By Free Protected Speech in America?
by
M.E. Boyd, Esq. – Miss Constitution . . . Simply Civics
The following is the first in a series of columns on the United States Constitution and American history and philosophy. Miss Constitution hopes you enjoy the journey into civics and history and that these columns assist you in becoming a quintessential American citizen.
Of all the clauses in the Bill of Rights, “Congress shall make no law . . . abridging the freedom of speech” this is probably the most discussed and the least understood. It is, arguably, the Jewel in the Crown of the first ten Amendments to the United States Constitution, ratified by the states in 1791.
It is best understood, first, by what it is not. It is not license to say whatever you want to whomever you want at whatever time you want. It is not permission to be rude. It is also not permission to hurl obscenities in anyone’s direction as obscenities are not protected speech. Obscenities are simply obscenities and not appropriate at any time or any place. The F-bombs, ugly name-calling, and in-your-face confrontations aimed at other speakers or just plain people going about their business are outside the protections of the free-speech clause of the United States Constitution and subject to being silenced if they create a true threat of imminent violence. Sometimes, as we shall see, government actors have a duty to interfere with obscene speakers, but most times society deals with it by shame and shunning – age-old behavior modifiers.
Second, like all rights in the Bill of Rights, “free” protected speech has restrictions. It is these restrictions that are not readily understood. Let’s take a look at them as a series of questions.
Is it speech? Constitutionally protected speech may be express (what is said aloud) or it may by symbolic (what is worn or carried) or it may be proxy (what is said on behalf of someone else). It is not behavior and it is not thought. You are free to think anything you would like but you are not allowed to carry out those thoughts through proscribed behavior.
Is the speech about public policy or social issues? What the Constitution protects is speech that involves government policy or a government actor. It is intended to give full vent to opinions about the direction of the nation or the direction of government policy. We call this the “marketplace of ideas” by “we the people” and the content or ideas may not be abridged by governments that do not want to hear it.
Is the speech being delivered in the right forum? There are public forums for free political or social speech such as public parks and spaces and traditional venues associated with voicing opinion such as outside public buildings or in front of the Supreme Court or the White House sidewalk. Yelling about public policy on someone’s front yard or at their front door or while they are eating is not the right forum for protected speech even if the person is a part of the government. What might be free speech is now just rude and intimidating speech and should be stopped.
Has the speaker or speakers met time, place, and manner restrictions? Public safety often requires that those who wish to voice an opinion obtain a permit that states a specific time and place for the speech. This is so that officers who have a duty to protect the speaker are adequately prepared as public safety is their top priority. Time, place, and manner restrictions cannot involve such excessive fees that the speaker is effectively silenced. We call government silencing of speech “chilling” free political or social speech and it is highly frowned upon by the Supreme Court of the United States.
So, let’s say that we have speech (not behavior); it is about a political or social issue (not obscene or rude); it is to be delivered in the right forum; and the speaker or speakers have met all time, place, and manner restrictions. Now what?
No government or state actor can prohibit the speech as protected by the free speech clause in the Bill of Rights of the United States Constitution. They cannot bar viewpoint or content-based speech that has met all the requirement and restrictions. But what if the government actor does not approve or like the content of the speech? That is just too bad. What about hate speech? It is protected. What about speech that would advocate the overthrow of the government itself? It is protected unless it calls for an action that would overthrow the government.
Public schools and public universities and colleges or any entity that has a substantial linkage to public funds is a “state actor” for the purposes of protected free speech. The public actor has a duty to protect the speaker no matter what the content of the speech and may not put up artificial roadblocks to speech it does not want to hear. Speech involving children is a separate matter.
My suggestion to you is that you keep a simple checklist to determine whether the Constitution is involved: is it speech; is it about public policy; is it in the right forum; is a state actor trying to prohibit it; has the speaker met reasonable restrictions. If all the answers are “yes” any subsequent issues involve the Constitution of the United States and potentially the Supreme Court of the United States.
© M.E. Boyd, Esq. “Miss Constitution” 2019
All Rights Reserved
