Freedom of speech: what it is and isn't

by Ansley Skipper

​The phrase “freedom of speech” is frequently tossed around in everything from casual conversation to campus protests. In light of recent events such as the Charlottesville “Unite the Right” rally and the University of California at Berkeley’s “free speech week,” Ansley Skipper more closely examines free speech and the way it’s misunderstood today.

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The Bill of Rights was created to limit the power of the government established in the articles of the Constitution. The first of the amendments reads:

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.
U.S. Government teacher Mr. Moore defines this amendment as “our ability to speak about or be critical of the government and be free from retaliation.” This retaliation could be anything from censorship to imprisonment. However, many people throw around the term “free speech” without a true understanding of its meaning in a Constitutional sense.

Moore points out that many believe free speech gives them a license to say anything at any time without any ramifications. In actuality, the First Amendment only guarantees that Congress will not make any law that infringes on the freedom of speech of citizens. This amendment does not apply to private conversations or what happens at private corporations. Moore explains that you can, in fact, be fired because your company does not like something you said, but you cannot be jailed because the government doesn’t like what you said. The First Amendment doesn’t make us immune from the social consequences of our speech — the impact that our expressions of sentiment have on our fellow citizens.


But there seems to be an apparent disconnect in understanding between the Constitutional definition of freedom of speech and the ways in which it is interpreted and applied today. In recent history, many have used the blanket “freedom of expression” — a phrase not directly stated in the Constitution itself — to defend anything from campaign donations to refusal to provide services based on religious beliefs. In short, freedom of expression amounts to our freedom to have our own beliefs and to then communicate those to others. The idea of freedom of expression, which the American Civil Liberties Union (ACLU) defines as “Freedom of speech, of the press, of association, of assembly and petition,”  is so broad that it is easy to understand the confusion and misunderstanding on the part of some people. Between what the Constitution says, the ACLU’s definition, and what we hear in the news, no wonder we are confused about our rights.

However, there are certain expressions that the courts have definitively decided the First Amendment does not protect. Moore says the ideas of “libel, slander, obscenity, copyright infringement, and incitement, which would be yelling ‘fire’ in a crowded theater,” are all limits on our free speech. The government does reserve its right and other citizens’ rights to “retaliate” in these circumstances, as seen with the legal treatment of hate groups like the Ku Klux Klan. Notably, the Supreme Court ruled in Virginia v. Black (2003) that a cross burning is not considered protected expression because it is a so-called “true threat,” a physical threat of violence. However, the American people, and our courts, still find room for interpretation; it is all subjective.

Eighth grade civics teacher Ms. Zimmerman raises concerns about the consequences of expression. She says, “I guess my question would be ‘does this expression deny someone of something?’” This raises a valid question about the limits of our rights.

Our rights end where someone else’s begin. This is generally understood as the non-aggression principle, a philosophy formulated by many thinkers from John Locke to Ayn Rand and defined by theorist Herbert Spencer as, “Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man.” Again, infringement is subjective, so this definition rarely helps clarify the boundaries of our rights. Despite the lack of definitive legal backing for this foundation of our rights, it is a sound moral principle to bear in mind on an individual level.

One definition of the non-aggression principle relies on the idea that a rights infringement is an abridging of only the natural rights: life, liberty, and property. Using this definition, offensive comments should be allowed because people don’t have a “natural right” not to be offended. This, then, is where the theory proves not always moral. It is not moral to use a racial slur, but it might be theoretically acceptable. The non-aggression principle does provide a generalized method of determining the limits of our freedom of expression, but theoreticals and technicalities only mean so much when individuals or entire groups of people feel threatened.

Zimmerman points out that even court decisions lead to inconsistencies in the application of the First Amendment because the courts change with the appointments of each new administration, and most new administrations interpret the First Amendment differently than the last.

It’s hard to say whether or not it is the right of a millionaire or corporation to make a large donation to a particular candidate because of his/her right to free speech and expression. The Supreme Court ruled in Austin v. Michigan Chamber of Commerce (1990) that restrictions on the political contributions of corporations didn’t violate the First Amendment. However, in Citizens United v. Federal Election Commission (2010) just twenty years later, the Supreme Court overturned Austin, citing the First Amendment right to free speech as making government restrictions on corporate political contributions unconstitutional. Bakeries defend their right to refuse to bake cakes for same-sex weddings both by claiming religious freedom and freedom of expression. Proponents of non-discriminatory service, however, argue that the First Amendment does not grant vendors the ability to accept only certain customers based on things like sexuality. In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017), the Colorado Supreme Court sided against the baker who had denied baking a same-sex couple a wedding cake, stating that baking a cake was the baker’s usual business and not an expression of free speech. However, this case will be on the Supreme Court’s docket this session, and because Masterpiece will be the first case of its kind that the Supreme Court will hear, it will set a legal precedent for this issue. With even our courts wavering on the extent of the First Amendment’s protection, it’s not surprising that we ordinary Americans are unclear about the right to free speech.

The First Amendment serves a practical purpose as a protection of individual rights from government infringement, but more importantly it encompasses a powerful American ideal of freedom of expression. Free speech today is more a moral ideal than a hard and fast Constitutional right. It is not a free license to speak without consequence, but it has fostered an environment of liberty and free thought in the United States unlike anywhere else in the world for the last 240 years. But the independence afforded to us by our Constitution will endure only so long as people are willing to defend not only their rights, but also those of others — even, and especially, those with whom they disagree.