To too many Americans, Free Speech is largely reduced to a weak argument belted in a strong voice when all other excuses fail to justify airing whatever they feel strongly about at that moment.
Several scholars and Constitution mavens have written endless boring papers with their interpretation of the “Congress shall make no law abridging the freedom of speech?” line, each as long and hard to understand as the other.
But what does it really mean to exercise your right to Free Speech?
As an American citizen, you have the right to say pretty much anything you want to say without fear of punishment from the government.
However, as common sense is less common than we should expect, a small number of basic rules apply, which is why it is easier to point out exactly what free speech does not include.
1. Inciting crime
“Let’s all meet at Times Square and hit people on the head with a meat tenderizer mallet” is considered Inciting Crime, not covered under Free Speech. Same with asking people to kill or harm others on Social Media. Or on TV.
2. Making true threats
Telling someone or doing something that makes the other party believe you will harm them, so the person feels in danger, is a no-no. Even if you are really mad. Especially if you are really mad. While the true threat test is subjective, there are plenty of precedents to get you in trouble.
3. Sharing obscenities
The Supreme Court redefined obscenity in 1973, in a case named Miller v. California. Until then, an obscenity was considered anything utterly without socially redeeming value. When the meaning of redeeming was questioned, the test became a little clearer:
Obscenity is which lacks serious literary, artistic, political, or scientific value.
Think Pornography, Child Pornography and similar.
But because what’s pornography to you may be art to your neighbor’s 16-year-old kiddo, the test also takes into consideration other values such as Community Standards in what is called a Three Prong Standard or the Miller Test.
4. Hate speech
You would think that in 2019 this would go without saying, right? Wrong.
The Supreme Court ruled in Whitney v. California that in order to suppress free speech, there must be reasonable ground to believe that the danger is imminent.
In case you were ever curious, this determination is the excuse some media outlets use to get away with veiled hate speech without lawful consequence.
Considering Whitney v. California is from 1927 and what we observe now, it would be fair to say we need an update form the SCOTUS on this matter.
Apparently, there’s an ongoing debate about what “hate” is.
5. Free Speech does not protect you from mockery
A recent example was a tweet sent by Gov. Bobby Jindal ahead of the 2015 State of the Union, in which he says:
“I’ll save you 45 min. Obama will decry Republicans, beat up on private business and argue for more free stuff. Your welcome.”
Twitter wasn’t too kind to Mr. Jindal and in a matter of minutes, hundreds of replies asking “Your what is welcome?” or “Thank you for the grammar lesson” and less polite play on words memes.
Tough crowd, but no laws were broken.
6. Public shame
If you decide to exercise your racism and make it public, we are allowed to figure out who you are, expose you and tell you that’s not OK.
Take Sarah Palin and the Southern Strategy Republican tactic of 2011 as an example.
Say you go around and take a bunch of creepy pictures of your unsuspecting roommate and post it to your Reddit account under the nickname BOZO, without their consent. There are ways people can figure out who you are and ID you as a creepy weirdo on Predditor.
Social Media can be a puzzling universe for some. Yes, we all know BOZO is not your real name.
8. Free Speech does not cover consequences
You’re free to be dumb, offensive, hurtful, unpleasant, distasteful. Just keep in mind everyone else is, too.
Anyone can contact your family, friends, workplace, school and let them know about it.
Remember that pointing out how you chose to publicly exercise your right to Free Speech is not infringing on that right, it’s someone else using their own.
The Federal Constitution protects you from the Government and not from private business and institutions who may choose to punish you for what you say or do even when not at work or school.
In Whitney v. California, Justice Brandeis brilliantly states:
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.
In other words:
Speech is fought back with Speech. Exercise common sense. Engage in meaningful healthy discussion. Not everyone can.