Correcting Misconceptions About Free Speech

By Georgia Ray
Georgia Ray is a freshman at the University of Pennsylvania studying cognitive science with a minor in American public policy. 

The First Amendment is a hallmark of American democracy, allowing American citizens to voice their identity and express their views without fear of persecution from the government. This creates a more collective political discourse as well as a generally less fearful population. In full, the First Amendment 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 of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [1]  However, for an amendment so fundamental to the country, Americans exhibit an astonishing lack of understanding in regards to their right to free speech. Three misconceptions stand out.

Many people do not understand the designation between free speech in the public realm and free speech within private institutions. Jimin He, writing for the Harvard Civil Liberties Law Review, argued “private universities are not subject to heightened constitutional examination of their policies.” [2] That is, private institutions have the ability to reprimand one based on his or her’s words with impunity.  Jimin He cites universities specifically, but this protection extends to other private institutions as well.

Additionally, people tend to forget the First Amendment protects all people, including those that act in a vile or discriminatory manner. In the wake of events in Charlottesville [3], indignant citizens called on the government to admonish the behavior of the Klu Klux Klan and affiliated groups. However, using the First Amendment selectively to protect the stances of certain groups or interests is not an option. As the American Civil Liberties Union writes, “we fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground.” [4] Part of protecting divergent views in our society is allowing a forum for even the most unpopular and abhorred speech.

A historic case that created this ‘forum for unpopular and abhorred speech’ is Texas v. Johnson. [5]  Famously, Greggory Lee Johnson burned an American flag during the 1984 Republican National Convention. At the time, Texas had a law prohibiting the burning of the American flag, and Johnson was prosecuted accordingly. Ultimately, the issue went to the Supreme Court where they ruled the burning of an American flag fell under the purview of “symbolic speech” and, as such, was protected under the First Amendment. In stating the viewpoint of the majority opinion, Justice William Brennan remarked, “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 final misconception is all speech is protected. In fact, nine categories are outside the realm of the First Amendment including obscenity, ‘fighting words,’ defamation, child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, and solicitations to commit crimes [6].  These categories are not protected under the First Amendment and can be punished as such.

An example of a governmental responsibility to limit free speech to protect against ‘incitement to imminent lawless action,’ is Schenck v. United States. [7] This case ruled that one cannot say something that urges illegal or dangerous behavior: Shouting fire in a crowded movie theater is the classic example. Schenk dealt specifically with a man who sent pamphlets to drafted men during World War I that had “Do not submit to intimidation” written across them, referring to the government’s attempt to enlist them. The court, in return, established the precedent with regards to free speech that, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."  

Another historical case that is important for understanding freedom of speech is Tinker v. Des Moines with its famous line: “Students don't shed their constitutional rights at the schoolhouse gates.” [8]  However, this ties to the differentiation between rules in public and private realms because, although Tinker holds for public schools, there is more leeway for private schools to admonish and suppress speech.

A more recent example where free speech has been questioned is with the case of several Sigma Alpha Epsilon (SAE) fraternity brothers at the University of Oklahoma chanting obscene things, particularly using offensive language towards African Americans in their community. [9] The brothers were heard chanting “You can hang him [an African American] from a tree, but he’ll never sign with me.” Video of the chant was leaked, and the students were subsequently expelled. Some have called on the standards of Tinker v. Des Moines (the University of Oklahoma is a public institution), arguing the fraternity brothers did not shed their freedom of speech when they walked through the university’s door. [10] However, upon their expulsion, University of Oklahoma President Boren wrote, “You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” [11] This creation of a “hostile learning environment” was considered a true threat, and therefore falls under speech not protected under the First Amendment. [12]

Our right to free speech is nuanced and complicated. It has evolved over time, and the Supreme Court continues to issue rulings that alter its interpretation. Ultimately, there are some basic misconceptions that must be overcome in order to have an elementary understanding of what it means and what we, as citizens, as well as the government can and cannot do. A basic understanding of our liberties and the government’s rights is what separates American constitutional democracy from the tyranny and authoritarianism of elsewhere.  

[1] Bill of Rights amend. I
[2] He, Jimin. “First Amendment on Private Campuses.” Harvard Civil Liberties Law Review, December 1, 2015. Accessed February 20, 2018. http://harvardcrcl.org/first-amendment-on-private-campuses/
[3] Romero, Anthony D. "Equality, Justice and the First Amendment." American Civil Liberties Union. August 16, 2017. Accessed February 20, 2018. https://www.aclu.org/blog/free-speech/equality-justice-and-first-amendment.
[4] Ibid.  
[5] Texas v. Johnson, 491 US 397 (1989)
[6] Ruane, Katherine Ann. “Freedom of Speech and Press: Exceptions to the First Amendment.” Congressional Research Service. September 8, 2014. Accessed February 20, 2018. https://fas.org/sgp/crs/misc/95-815.pdf.
[7] Schenck v. United States, 249 US 47 (1919)
[8] Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969)
[9] Fernandez, Manny and Richard Perez Pena. “As Two Oklahoma Students Are Expelled for Racist Chant, Sigma Alpha Epsilon Vows Wider Inquiry.” The New York Times. March 10, 2015. Accessed February 20, 2018. https://www.nytimes.com/2015/03/11/us/university-of-oklahoma-sigma-alpha-epsilon-racist-fraternity-video.html
[10] Volokh, Eugene. “No, it’s not constitutional for the University of Oklahoma to expel students for racist speech” The Washington Post. March 10, 2015. Accessed February 20, 2018. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/10/no-a-public-university-may-not-expel-students-for-racist-speech/?utm_term=.1da6252cf863
[11] Gray, Eliza. “Expulsion of Oklahoma Sigma Alpha Epsilon Members Raises Questions.” Time, 10 Mar. 2015, time.com/3739268/sigma-alpha-epsilon-university-of-oklahoma-expel-free-speech/
[12] Fernadez and Perez Pena. Two Oklahoma Students Expelled for Racist Chant.
Photo Credit: Flickr User wiredforlego
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