UNITED STATES—As Americans do we truly have the opportunity to say whatever we want on our minds without facing any repercussions? Really think about that question before you deliver your answer, because I know so many people are going to say: absolutely. However, that is NOT the case America. For anyone who has ever taken a constitutional law course or studied the law heavily you know those limitations to free speech. Too bad not many Americans have educated themselves fully on the First Amendment in reference in terms of what you can say and what you cannot say.
I’ve chatted about this before, you might have freedom of speech, but backlash from public opinion is not the same thing. You will be held to the fire by the public if you say comments that some deem inappropriate or decisive. That is a slippery slope and I use the term ‘decisive’ because how one person views something and how someone else views something can be fully perceived differently. Now let’s call a spade a spade, hate speech should NOT be allowed, but then we have to have a bigger question about what is considered hate speech and what is NOT.
In addition, I link hate speech to inciting violence. This is a very important tidbit because not everyone understands what it means to incite violence people. If you explicitly utilize verbiage to get people to enact violence on another person we have a problem in my opinion and it is something that has to be fully highlighted. One of the biggest is defamation of a person’s character. It is one thing to speak your mind, it is another to defame a person’s character by spreading false statements and thinking there will NOT be any ramifications from it.
You cannot defame a person simply because you don’t like them; the law will not allow it people, especially if you are not a public figure. Yes, that is the caveat that a lot of people don’t know. It becomes a bit hard for a person to sue for defamation of character if you’re a high-profile individual or one well known in the public sphere. If it’s spoken its slander, if it is written it is libel. So if you’re putting something out there, you better make sure it’s accurate and factual. In addition, do not intentionally put out false information where you are intending to damage someone’s character. If you do that, it makes the argument in a court of law easier to hold you responsible for libel or slander.
The Clear and Present precedent is perhaps one of the big ones as it relates to freedom of speech because you CANNOT say things that are false that can lead to panic or cause danger for others. Take a look at the case Schneck v. United States, where Charles Schneck and Elizabeth Bauer could not distribute leaflets trying to get Americans to avoid the draft at a time of war, which led to Justice Oliver Wendell Holmes quoting that infamous detail that a man cannot falsely shouting fire in a crowded theatre causing panic and leading to danger. A key element about free speech is all about intent. Is the intent there and can one prove that intent in a court of law?
Another element of speech that tends to cause a lot of confusion is issue of obscenity. What is obscene and what is indecent. They may sound similar they are not people just as in the case Miller v. California from 1973, that involved pornographic material that ultimately led to the Miller test. For my law scholars you know all about this, but for those in the dark the Miller Test determines if speech or expression can be deemed obscene. In order for that to happen the rules in place involve:
1) whether the average person, applying contemporary “community standards,” would find that the work, taken as a whole, appeals to the prurient interest;
2) whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion); and
3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The test is not as easily defined as one would hope, but it was a game changing case by the United States Supreme Court that set a major precedent America. Here is the kicker people: speech or expression is ONLY deemed obscene if all there rules are met. So it cannot be 2 of the 3 or 1 of the 3, it must be all 3.
What I am getting at with this column is that free speech is not free speech even if we like to think it is. You need to be fully aware of what you can say, what you can do, as well as what you cannot say and cannot do. If not you could be in a rude awakening for consequences that could be headed in your direction.
We evoke the Freedom of Speech argument anytime someone questions something we say or that we have written, but I truly wonder how many people actually know what freedom of speech entails, what you can say, what you cannot say and when legal ramifications an become an issue.
Like I said before what the law allows you to say and how the court of public opinion determines your fate is not the same thing. It is unfortunate, but it is the times we live in now.
Written By Jason Jones