Breaking down the misconstrued protections of the First Amendment

By Kaitlin Dunn

Elm Staff Writer

The First Amendment of the United States Constitution states, “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 peaceable to assembly, and to petition the Government for a redress of grievances.”

Freedom of speech is often invoked to argue for the ability to say inflammatory things or, in modern times, post hateful speech on social media with no repercussions. However, the First Amendment is not as black and white as it may seem, and there are many stipulations to what it does and does not protect.

So, what does freedom of speech actually apply to? To answer this, it is first necessary to address what freedom of speech does not protect.

In a column published in The Washington Post, Chief Executive of PEN America Suzanne Nossel outlines five myths regarding free speech: “Speech cannot cause harm by itself; Government prohibitions can suppress hateful ideologies; The best remedy for disfavored speech is more speech; We all enjoy the same speech rights; and Social Media restrictions are a form of censorship.”

The argument that speech cannot cause harm by itself — meaning the belief that words are not able to directly cause harm or incite violence — is countered by two Supreme Court cases, Schenck v. United States and Brandenburg v. Ohio.  

In Schenck v. United States, the case involved Charles Schenck, who had been charged with espionage for distributing flyers to conscription-eligible young men, encouraging them to resist the draft during World War I. Schenck took his case to the Supreme Court, arguing that the Espionage Act violated the First Amendment. 

In this case, Justice Oliver Wendell Holmes argued that expressions with criminal intent that posed a “clear and present danger” were not protected under the First Amendment.

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” Holmes said.

Brandenburg v. Ohio entailed Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, who had been charged with using inflammatory speeches to advocate violence against minority groups in America. In this, the Supreme Court ruled that the Ohio law that Brandenburg had been charged with was unconstitutional, ruling that the state could not criminalize speech.

Although Holmes’ decision in Schenk v. United States was partially overturned in Brandenburg v. Ohio, the latter still upheld the idea that freedom of speech does not protect that which “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In line with the belief that speech cannot cause harm by itself, there are many who believe that hate speech, such as language that would be considered offensive to marginalized groups, is not protected under the U.S. Constitution. Despite Brandenburg’s language being considered hate speech, the difference in the two cases lies in the fact that Brandenburg technically did not directly call for actions of groups, even if his language had the potential to incite violence, whereas Schenck called for a direct action in telling men to resist the draft.

In Brandenburg v. Ohio the Supreme Court held that the U.S. government is unable to punish inflammatory speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 

In citing these cases, one can draw again on the myth Nossel addressed, that “government prohibitions can suppress hateful ideologies.” Brandenburg v. Ohio reinforced the basis that hate speech is free speech, and that the government has no true authority to suppress free speech.  

More recently, many have argued that President’ Trump’s suspensions from apps such as Twitter and Facebook are considered governmental censorship and is therefore illegal and unconstitutional under the First Amendment.

Business Insider’s Tyler Sonnemaker said that viewing Trump’s Twitter ban as a violation of the First Amendment is “a complete misunderstanding of what the First Amendment says.” 

“[The First Amendment] … bans the government from infringing on free speech (with some limited exceptions),” Sonnemaker said. “What does that mean for social media companies? Not much.” 

This means that since companies such as Facebook and Twitter are privately owned, they do not have to abide by the First Amendment. This is how Tik Tok and Instagram are able to remove posts if they go against community guidelines.

Despite what some may believe, there are many stipulations on freedom of speech as outlined in the Constitution. However, the large amount of variance in what the First Amendment does and does not protect leads to more harm than good.  

It is understandable that some states choose not to criminalize language, as this leads to a slippery slope where it becomes difficult to pinpoint whether certain language should or should not be criminalized. When noting the difference between Schenck v. United States and Brandenburg v. Ohio, there is an argument to be made for a sort of hypo-criticism in the ruling of the judges.  

If the First Amendment does not protect language that incites violence, why was Brandenburg allowed to speak in a manner that could have led to harm inflicted on marginalized groups? 

More recently, there have been many an online argument regarding the “canceling” of people who have been caught using racial slurs. These people may argue that it is their First Amendment right to say these things, and that doxing them or getting them kicked out of school for their words violates the Constitution. They are only partly right.

Yes, the First Amendment protects an American’s right to freedom of speech, but it is not extended to freedom from consequences.

Featured Photo caption: The Constitutional right to free speech has long been misconstrued, with many Americans using it as an excuse to use hate speech and then evade punishment. Photo by Trish Rana.

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