Free Speech: First Amendment v. Common Misconceptions

Free speech; two words that are constantly called forth in an attempt to justify opinions, ideas and insults hurled across the internet. Freedom of speech is critical to our identity as Americans and central to our societal idea of what it means to be free. The concept of freedom of speech is also one of the most commonly misunderstood and misused ideas that exist in the collective American consciousness. Before picking apart the ways in which free speech is misused and misunderstood, it is first important to have a working understanding of what the first amendment says and what it does mean.

The first amendment to the United States Constitution is as follows:

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.

The language of the first amendment is simple and clear. The government shall make no law respecting one religion over another, the government shall not abridge the freedom of speech, the government shall not restrict the freedom of the press, and the government shall not disallow people from protesting peacefully. These tenants are some of the most foundational aspects of the freedom upon which the United States is built.  

The freedom of speech aspect of the first amendment is the promise from the founding fathers that one can speak out against the government without fear of government reprisal or facing arrest.  Indeed, one can say just about anything (save threats of direct violence) and not get arrested or have the government come after them. However, freedom of speech going beyond this, beyond the possibility of governmental reprisal, is where it begins to become commonly misunderstood and often misused and abused.

Freedom of speech does not mean freedom from consequences, particularly when the government is not directly involved. As Americans we have the right to free speech, but this does not mean that we have the freedom from criticism and consequences, especially in terms of other citizens or private businesses and corporations. For instance, when one is on a private company’s platform, such as Facebook, that company has the right to set their own standards on what kind of material they will allow to be published. It is not a violation of our first amendment rights when a private company sets standards and bans people (temporarily or otherwise) for violating those standards.  

It seems that people sometimes forget that private companies are allowed to have their own rules in terms of what is allowed to be published or expressed on their platforms. A simpler example would be a service at a church. If one walked into a religious service in a church building and began hurling insults or opinions loudly at the minister while he or she was conducting the service, that person would almost certainly be kicked out from the Church building / service. It is not a stretch to say that if this behavior continued on multiple occasions, that person would also likely be banned from that Church building at some point, and the private entity (in this case, a Church) would be within their right to ban this person from their private property. Why then should an online platform such as Facebook or Twitter be any different? 

If an individual was banned from a private company’s platform, such as Twitter or Facebook, for consistently violating their standards, and this led to the Government arresting this person or prohibiting them from doing business directly, that would indeed be a violation of that person’s first amendment rights in which they should consult with a first amendment lawyer. However, these private companies are not the government and their enforcing of their standards is within their right. An old adage says, “The right to swing your fist ends before your fist hits my face.” What exactly this means, where that line is drawn, is up to society as a whole.  Our societal standards and norms are ever changing and evolving. Finding oneself on the receiving end of social consequences (and thereby often personal economic consequences) very rarely means that one’s right to free speech is being violated. The right to free speech that we are each promised in the first amendment of our constitution is vital to our identity and freedom as American citizens. This right does not outweigh the rights of private companies and individuals from holding their own standards and enforcing them.

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