Freedom of Speech in America

The First Amendment of the Constitution.

            As I began my research, I had no idea how complex freedom of speech really is. The First Amendment of the United States Constitution states “Congress shall make no law […] prohibiting the free exercise thereof; or abridging the freedom of speech […]” Reading this, it seems pretty simple, the government can’t tell me what to say and can’t punish me for what I do say. If only it were that easy. I decided to look further into the concept of free speech and what I found really surprised me.

            Our democracy depends on freedom of speech and expression; otherwise we lower ourselves to a totalitarian, dictatorship-like style of government. Americans can believe what they want, and according to the Constitution they are allowed to express those ideas. This raises many questions, however, and creates many grey areas. What is okay to say and what is not, and who decides? Two main types of speech I first came across were Obscenity and Libel. In 1957, the Supreme Court stated that “obscenity is not within the area of constitutionally protected speech or press”, however what decides if something is obscene is another story. In a 1973 case, Miller v. California, Chief Justice Warren Burger wrote that “materials were obscene if:

1)   The work as a whole appealed to a prurient interest in sex

2)   The work showed patently offensive sexual conduct that was specifically defined by an obscenity law

3)   The work as a whole lacked serious literary, artistic, political, or scientific value”

You would think that this cleared things up, but during my research I found that whenever something was said or created to answer questions, it ended up raising more questions than it answered. The main question I had and, according to my research, apparently the rest of the country had was “What is considered offensive, hateful, obscene, or permissible?”

            The court system of the United States has to draw the line separating permissible and impermissible speech. The AP Government text gave me great examples of what is considered “permissible”: holding a rally to attack an opposing candidate’s policies and views receives the protection of the First Amendment, however obscenity and libel comments such as threats to overthrow the government do not receive the same protection. Advocates of limiting the freedom of speech would say things such as hate speech (racial insults or fighting words) are “undeserving of First Amendment protection because the perpetrator’s intent is not to discover truth or invite dialogue, but to injure the victim”. I agree with this to some extent because the purpose of free speech is to discuss our disagreements, if these discussions do not occur anger rises and eventually leads to violence. On the other hand, where is the line to be drawn? How many First Amendment rights are we willing to sacrifice in order to stop “hurting people’s feelings”.

A protester's sign claiming "hate speech is not free speech". 

            There are many different routes I could’ve taken with my research, but I decided to pick free speech and social media. Growing up in a time where I can’t go on Twitter or Instagram without seeing someone being called a “fag” or and “idiot” made me want to research this aspect of free speech further. Is calling someone a “fag” not considered hate speech? I understand that the federal court system can’t punish everyone who has ever posted something obscene on the Internet, but I wanted to see if people have actually been punished for their posts. I found that many of the social media sites were concerned with being liable for what people post on their sites. Because of this concern, section 230 of the Communications Decency Act was created. Section 230 immunizes websites from legal liability for the comments of their users. Since this happened, social media has become a place where people can blow off steam by posting something horrible about someone or something without worrying about getting themselves or the company in any trouble.

This is the ACLU's logo.

            The American Civil Liberties Union is an organization that has devoted the last 100 years to defending and preserving the individual rights and liberties of the American people based on the Constitution. According to the ACLU, the Internet should be uncensored and deserves the same protection as books, magazines, and newspapers. They also believe in the right to remain anonymous when online. The US Supreme Court has even said, “Anonymity is a shield from the tyranny of the majority.” This right is given to ensure the safety of Internet users against corporations and the government. These rights should apply to the digital world just as they do to the real world. This makes sense to a certain extent, calling someone a fag on Twitter is virtually the same as walking up to them and saying it to their face, however other types of posts are different.

A picture of Anthony Elonis next to one of his threatening posts on Facebook.

         The main type of speech I encountered when it came to the Internet was libel. Libel is basically written defamation, it can be any print, writing, picture, or any communication in physical form. Libel is governed by state law and since 2014; it is governed by the Supreme Court. In December of 2014, the Supreme Court heard their first case on free speech and social media. This case, named Elonis v. US, forced the Supreme Court to draw the line on social media. A man by the name of Anthony Elonis had just gone through a nasty divorce with his wife and posted some threatening comments on Facebook. His most graphic post said the following: “There's one way to love ya, but a thousand ways to kill ya, And I'm not going to rest until your body is a mess, Soaked in blood and dying from all the little cuts. Hurry up and die b*tch” Reading this actually gives me chills, but he has the right to say it, or at least he thought he did. This case was heard by the Supreme Court and eventually Elonis was sentenced to 44 months in prison. Elonis, however, raised a very good point. Why do rappers win awards for songs about guns and drugs but he gets arrested for putting it on Facebook? His lawyers argued that it was “therapeutic” for him to write these things and that he didn’t mean anything by it, but the wife was legitimately concerned for her life. 

Supreme Court Justice Scalia.

During the trial, Justice Scalia commented on Elonis’ threats to his wife: “If you threatened somebody with violence and don’t actually apply violence, it’s still considered an assault” In this court case, the Supreme Court showed the world where the line is when it comes to social media and free speech.

            The topic of free speech is extremely important to the history of our country. What would have happened if Martin Luther King Jr. wouldn’t have given his famous speech or if Americans wouldn’t have rallied against abortion? Our country as we know it would not be the same without freedom of speech and our other Constitutional rights.

            During my journey through this topic, I realize I have only scratched the surface when it comes to free speech. This topic is more complex than I could have ever imagined and I have great respect for judges across the country. Setting boundaries for something already defined by the Constitution can be extremely difficult and receives a lot of disagreement. I picked this topic because I thought it would be interesting to research and I could not have been more correct. I have learned so much not only about free speech but also about the Constitution and the court system of the United States of America. Whether or not I agree with what is being said, I still believe freedom of speech is vital to our country.

Annotations:

ACLU: This source was a great place for information and a good insight into how people react to free speech. The ACLU is a great organization that fights for people's civil liberties and educates the populus about their rights.
Stanford Law: This source was a good transition into the world of social media and how free speech and the Constitution apply.
Cornell Law: I used this source mainly for a better understanding of libel and everything it entails.
Constitution: I used the Constitution to read the First Amendment and use it in my research/essay.
CNN: I used this source to read about the case taken to the Supreme Court about free speech and social media.
Supreme Court: I picked quotes from a transcript of a Supreme Court case to use in my paper.
AP Government Text: I used this text to get a basic understanding of free speech and the First Amendment.
NPR: I cited this source because it provided me the exact words Elonis posted on Facebook that got him arrested.