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North Hills Monthly

What Constitutes Freedom of Speech?

Jan 01, 2018 02:04PM ● By Hilary Daninhirsch

The 2017 Women's March in Pittsburgh

"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."

Those mighty words that our forefathers crafted more than 200 years ago are the foundations for the First Amendment. In particular, freedom of speech represents the most democratic ideals that our country holds dear. But it is often the most controversial, as its definition is frequently litigated in the highest judicial body in our land, the U.S. Supreme Court.

Brenda Lee Green, a board member with the Pittsburgh chapter of the ACLU of Pennsylvania and a member of their speakers’ bureau, explains the power of the First Amendment and what it allows, as well as its limitations. 

North Hills Monthly (NHM): Why is the First Amendment crucial to a free society?

Brenda Lee Green (Green): The First Amendment is the bedrock on which all of our other freedoms are built. When James Madison wrote the first draft of the Bill of Rights, this was truly revolutionary. The idea that a citizen could speak openly and criticize the government was unheard of anywhere in the world. The idea that we can speak our minds without fear of arrest or persecution or losing our jobs or being evicted from our homelands really is exceptional.

NHM: Freedom of speech is not unlimited, correct?

Green: It is not, and that is true for most of the freedoms we treasure as Americans. The government is to protect the rights of the minority opinion, which is why the First Amendment is so important.

NHM: What are some specific limitations on freedom of speech?

Green: Violence is never protected speech. Your First Amendment right is absolute but it doesn’t give you the right to break other laws. For example, you have every right to protest outside corporate offices but you can’t trespass on private property or block traffic. 

The legal standard for ‘incitement to violence’ was established in Brandenburg v. Ohio, which concerned the Klan’s right to march. The Court set up the ‘imminent lawless action test,’ which is still the standard today. To be able to be constitutionally barred, the speech has to expressly advocate imminent violence, and the violence has to be likely to occur.

NHM: What about hate speech?

Green: Speech that causes violence isn’t protected, but hate speech is protected. Hate speech is very controversial because emotions are so high, and that is understandable. There was a recent U.S. Supreme Court case, Snyder v. Phelps, in which the Westboro Baptist Church protested a Navy Seal’s funeral in Bucks County, PA. Although the police did an exceptional job of making sure no protestors got on private land and did a good job of shielding the family from the signs, the family saw some of the signs, and the father sued and won an astronomical settlement. The church appealed on First Amendment grounds and it went to the Supreme Court. Chief Justice John Roberts said that we can feel for the family and we can be angry, but it doesn’t give us the right to silence free speech.

NHM: What is protected speech?

Green: Political speech is protected; the idea that as a citizen of a republic, not only do you have the right to criticize your government, but you have the responsibility to do that. The government cannot silence you.

We will continue to debate artistic speech—art vs. obscenity. Often that standard has been based on community standards, and it usually follows in the areas of art, theater, and painting that it is protected speech. Student speech is another area that is often controversial; it is less clear-cut when school districts can silence student speech.

NHM: Can you talk about symbolic freedom of speech, meaning freedom of expression?

Green: A lot of key cases over the years have dealt have with symbolic speech, which often involves the flag. It inflames passions, but the Supreme Court has consistently ruled that it is protected speech. That is the beauty of the flag: it represents the public and protects even those who disdain it. 

NHM: The forefathers could not have predicted the Internet and social media—how do these complicate the interpretation of the First Amendment?

Green: Life is a lot different than when Madison and Jefferson were working on the Bill of Rights. The constitution is a living, breathing document that adapts as we go along. The Internet is the new frontier. A lot of these decisions aren’t made yet, because cases are still working their way through the courts. As social media keeps expanding and becomes more pervasive in our lives and people are using it to bully others, it causes a lot of harm. So the question is, when does it become a privacy issue or a First Amendment issue?

I liken that analogy to medical science and ethics: in vitro fertilization and organ transplants pushed the bounds of medical ethics and asked how far we can go. 

The issue really is continuing to evolve. It’s tough because the technology keeps changing.

NHM: The First Amendment begins with “Congress shall make no law…,” but what about private employers? What are they allowed to do in terms of curtailing your speech or social media posts?

Green: Private employers have a lot more leeway. The way I define it is hard and soft censorship. Hard censorship is clearly government censure, which is unconstitutional; the government cannot tell you what you can think, watch, say, wear—any of that. Soft censorship is a spectrum. I work at an employer, and there are certain codes I must abide by or my employer can reprimand or discharge me. 

NHM: Why do you think free speech is such a hot button issue?

Green: I think because it often pushes buttons in other areas, involving obscenity, nudity, sex and profanity. And often religion and patriotism is brought into it.

NHM: Are the courts interpreting freedom of speech more broadly these days than in days past?

Green: Even though we had this remarkable document, it wasn’t really enforced in the first hundred years. Broadway was censored, police were in the audiences in theaters, labor unions were tremendously censored, etc. Over the years, there were sweeping changes where each decision was better than the last. Now we have a more conservative court, but even the most conservative judges on the court generally support the First Amendment; my hope is that it will continue.

NHM: How does the ACLU help defend the First Amendment?

Green: We have a very large public education network, including a speakers’ bureau. At a very basic level, we are educating citizenry about their rights. We also have advocacy volunteers and staff that work with the legislature.

People think of us as a legal organization, and we are—we are the country’s largest law firm. We have 300-plus staff attorneys nationwide, but that is a drop in the bucket: we also have thousands of volunteer attorneys. We have one client and one client only, and that is the Bill of Rights and the U.S. Constitution.