Did You Know
The First Amendment states “Congress shall make no law . . . 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 key word is “Congress.” The U.S. Supreme Court, the ultimate interpreter of the U.S. Constitution, has ruled that “Congress” includes more than just the U.S. Congress. Congress, at least for purposes of the First Amendment, includes any local, state or federal government entity or official.
As a public land-grant institution, the University of Florida is a governmental entity for First Amendment purposes. Students, staff and faculty at UF thus possess First Amendment rights that may protect their right to engage in speech and the ability to peaceably assemble for purposes such as marches and rallies.
The First Amendment does not guard against private censorship. If a private business refused to sell a speech product such as a book, magazine, or video game because it did not like the viewpoint expressed or the content in question, this would not raise a First Amendment issue.
Not only does the First Amendment safeguard free speech and a free press, it also protects “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” These aspects of the First Amendment are known as the Assembly Clause and the Petition Clause, and both help you to exercise your free speech rights.
The Assembly Clause protects, among other things, the right to march peacefully and to hold peaceful rallies and protests in places such as public parks and public sidewalks, subject to what courts call “content-neutral time, place and manner regulations.” In other words, the government may impose restrictions on speech in such places during some times of the day (a time restriction) and on sound levels (a manner restriction), provided those restrictions are not imposed because of the subject matter or the topic of the speech, march, rally or protest. Such restrictions must be imposed neutrally and impartially across all subjects and all topics.
The Petition Clause is one many people overlook, but it is very important. It is what gives one, among other things, the right to stand up at a city commission meeting and speak out about a policy that is under consideration. More recently, the Petition Clause has played a key role in several court decisions prohibiting government officials who use social media platforms such as Twitter and Facebook for governmental purposes from blocking people who post comments disagreeing with them.
The U.S. Supreme Court has held the government cannot censor someone else’s speech simply because the government disagrees with that person’s or entity’s viewpoint. For example, if the topic or subject matter under consideration is abortion, the government cannot take sides and restrict only one side of the debate (for instance, pro-life) while allowing the other side (pro-choice) to speak freely. The same ban on viewpoint discrimination would apply, of course, if the censorship were the other way around. In brief, the government cannot take sides when others are speaking and cannot censor some viewpoints but allow others on any given topic or subject. In other words, any government regulation of speech must be content neutral.
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The U.S. Supreme Court made that observation in a 1989 decision called Texas v. Johnson protecting the right of Gregory Lee “Joey” Johnson to burn the American flag as a form of symbolic protest against government policies outside of the Republican National Convention in 1984.
“Offensive speech” is protected because it is extremely difficult to define what is offensive. What offends one person, for example, may not offend another and trusting the government to draw such lines for its citizens can be a slippery slope. In Cohen v. California, 1971, the U.S. Supreme Court considered the case of Paul Robert Cohen who wore a jacket emblazoned with the words “Fuck the Draft” in a public courthouse. In upholding Cohen’s right to wear the jacket, the court stated “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”
It is very important to note that both of the decisions mentioned above – Texas v. Johnson and Cohen v. California – protected the right of citizens to criticize governmental policies. The two cases thus illustrate another important point: The First Amendment generally protects the right to engage in political speech and, in particular, dissenting political speech (i.e., speech critical of the government).
The U.S. Supreme Court has held several categories of expression are not protected by the First Amendment. These include obscenity, child pornography, fighting words, incitement to violence, true threats and other speech that rises to the level of criminal conduct.
It is very important to notice that hate speech is not among the categories of speech excluded from First Amendment protection by the U.S. Supreme Court. Thus, what many people might consider to be “hate speech” is protected by the First Amendment. This does not bar, of course, the Supreme Court in the future from creating a new unprotected category called “hate speech.” Rather, it is simply the law today in the United States.
Many people mistakenly believe the normal rules of law governing things such as defamation (libel), true threats of violence, copyright, and trademark do not apply to the internet. In fact, a person can be held civilly liable for defamation based upon even a single tweet or a lone Facebook post. Defamation is a false statement of fact communicated to another person about someone else that harms the subject person’s reputation. Similarly, a person can be held criminally responsible for posting a threat of violence towards another person on social media or other virtual platforms. Additionally, intellectual property law such as copyright and trademark apply to the internet. For instance, a photograph taken by another person cannot be posted on the internet without first obtaining that photographer’s consent. In summary, the same laws concerning speech and content apply regardless of the medium through which it is communicated.
A heckler's veto occurs when an audience's hostile reaction or the possibility of a hostile reaction to a speaker due to the speaker's viewpoint is allowed to silence the speaker. The Supreme Court has held that speech cannot "be punished or banned, simply because it might offend a hostile mob." (Forsyth County v. Nationalist Movement, 505 U.S. 123, 135 (1992)). The government generally has the burden to protect a speaker from a heckler's veto. As one federal appellate court recently put it, "[w]hen a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals." Bible Believers v. Wayne County, 805 F.3d 228, 252 (6th Cir. 2015).