As a writer and proponent of limited government, I find no right more important than the freedom of speech.
But it’s clear there is some broad confusion about the nature of this right.
I hope to clear some of this confusion up with you today by looking at the two biggest myths about free speech. Let’s begin with reading the words of the 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.
Myth #1: Anyone can violate your free speech rights
The absolute biggest misconception about the freedom of speech clause is that anyone can violate your First Amendment right. The First Amendment applies only to government action.
First Amendment protections originally applied only to laws passed by Congress. But since 1925, First Amendment protections apply to government at any level — federal, state, and local. A private business can still censor your speech. And the government has no official responsibly to protect you from that.
What that means is private companies and organizations are allowed to censor what you say. If you post something on a private company’s website such as Facebook or Twitter, regardless of the content, the company has every right to take it down. This is not a violation of the freedom of speech. Because again, the First Amendment applies only to government action.
If you walked into a church and started yelling obscenities, the church has every right to toss you out. The same thing applies to a baker who refuses to write something on a cake, again, regardless of the content.
Free speech protections have been recently thrust into the spotlight with Facebook’s ban on Alex Jones and InfoWars. But let me ask you this: Would you really want the government to restrict private companies like Facebook from limiting speech?
Myth #2: Free speech is absolute
Another major misconception about the freedom of speech clause in the First Amendment is that free speech is absolute. It’s not.
Scholars have identified nine different categories of speech that are not protected under the First Amendment. They are:
- Perjury
- Blackmail
- Incitement or solicitation of a crime
- True threats
- Plagiarism
- Obscenity
- “Fighting words”
- Slander, libel, or defamation
- Child pornography
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The government has the authority to restrict, and even prosecute, any of these offenses. Of course, some of these can fall into gray areas. And the courts have spent years trying to define things like obscenity.
Among these categories, incitement is particularly a problem today. What counts as incitement? What will incite someone else may not incite me.
A great example of this is the actions of the Westboro Baptist Church, who protest military funerals with signs like “God Hates America” and “God Hates Vets.” If you’ve read one page, you know the God of the Bible doesn’t “hate” anything. To me, this is very clearly incitement.
The tactic is to provoke any mentally unstable military individuals into confrontation, then sue them for damages. This is very obviously the Westboro Baptist Church’s plan, seeing as they spend more time in court than they do in church. Of course, the courts have disagreed with me and still allow the organization to operate.
What incitement really boils down to is the intent of the speaker. If the intent of the speaker is to provoke or incite someone else into committing a crime, the government has the duty to step in and censor that speech. Unfortunately, however, only the individual ultimately knows his own motives.
The problem is some people are not as dumb as they try to act. I think it’s clear there are many people who are, in fact, trying to incite others into violence or crime while hiding behind the First Amendment. And they know exactly what to say and what not to say.
If incitement is a speed limit of 60 mph, there are people trying to take their speech to 59.9999 mph.
You know you can’t (or shouldn’t) yell “bomb” in an airport or “fire” in a crowded movie theater. And I think you’re smart enough to understand why.
As the nation spirals deeper into the free speech debate, I think it’s likely we’ll see lawyers continue to blur the lines between what is and what is not protected under the First Amendment.
For you and me, however, it’s most often better to keep our mouths shut to avoid problems. Just remember: Abstinence is not agreement. Just because you abstain from arguing against a position doesn’t mean you agree with it. In short, you don’t have to argue to disagree.
Until next time,
Luke Burgess
As an editor at Energy and Capital, Luke’s analysis and market research reach hundreds of thousands of investors every day. Luke is also a contributing editor of Angel Publishing’s Bull and Bust Report newsletter. There, he helps investors in leveraging the future supply-demand imbalance that he believes could be key to a cyclical upswing in the hard asset markets. For more on Luke, go to his editor’s page.
