The First Amendment of the United States Constitution declares Congress can’t pass a law abridging the freedom of speech.
But that doesn't mean Americans can say whatever we want without consequence — from the law, from an employer or from society at large.
Nadine Strossen is a constitutional law scholar and the former president of the American Civil Liberties Union. She said the line between what’s protected and what’s not is thin and circumstantial.
“If somebody goes up to a Jewish student or an Israeli student and starts spewing antisemitic or anti-Zionist statements in their face, that is unprotected harassment,” Strossen said. “But if that very same student is standing in the middle of the quad and chanting those very same statements to a general audience, not targeting any particular individual, it may be controversial, it may be offensive, but it is constitutionally protected.”
Imminent and targeted threats are not protected. And, the government can impose viewpoint-neutral restrictions on speech — that means, they can’t restrict because they don’t agree with the statement, but they can impose time, place, and manner restrictions.
“Yes, you may burn the flag, but not in a place where it's likely to cause public harm, which means that you can't burn anything in a certain public place, whether it's a flag or whether it's leaves or whether it's a book,” Strossen said.
And, “speech” is no longer just spoken words. The Supreme Court has extended free speech laws to art, social media, movies, and demonstrations, like parades.
Strossen answered a few scenarios in a lightning round (followed by longer, legal explanations).
Here’s the exchange:
WSHU: Is this protected by the First Amendment: saying you hate the government?
Strossen: Yes.
WSHU: Calling for a group of protesters to storm a government building?
Strossen: Probably yes. I'll explain later.
WSHU: Saying the mayor is stealing from the city when you know that it's not true?
Strossen: Probably yes. I'll have to explain why.
WSHU: And saying WSHU is the best public radio station?
Strossen: Absolutely! Defense of truth.
On “calling for a group of protesters to storm a government building,” Strossen said the situation does not seem to constitute a prohibited intentional incitement of imminent violence. People who storm the building can be held culpable. But the speaker would have to be proven guilty of intention to incite.
“I think in a couple of cases where the Supreme Court has enforced that standard, it has upheld freedom of speech,” Strossen said. “In one case, for the leader of a Ku Klux Klan organization, in the other case, for a leader of the NAACP.”
On “saying the mayor is stealing from their city when you know it’s not true,” Strossen said the Supreme Court and common law tort standards have been in favor of allowing such statements to encourage vehement and strong rhetoric about public officials.
“We don't want to deter people for fear that they're going to be subject to defamation,” Strossen said.
Saying WSHU is the best public radio station, Strossen said, needs no explanation.
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