First Amendment - John Bandler

The First Amendment and "Free Speech"

by John Bandler

The First Amendment protects us from government restrictions on speech, religion and more.

Here's what it says (I added the line breaks to separate each phrase).

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.

Remember that the law on speech and expression starts with the First Amendment, which is the highest law on the topic. All other laws and government actions need to comply with the First Amendment.

I devote a chapter to the First Amendment in my 2025 book on Cyberlaw, and forthcoming book on Introductory law.

Consider that the phrase "free speech" means different things to different people, and it is often hard to have a productive discussion with that phrase. Do they mean the freedom to say anything without any consequence from anywhere?

It is better to first understand what the law and the First Amendment provide. Then we can have better discussions about what speech should be allowed or not, and why.

Remember also that the First Amendment applies only to government actions. It does not apply to private actions or consequences.

Interesting 1st Amendment facts and conclusions by John

Ratified 1791
Word count: 45
Words unchanged since 1791 (232 years)
Number of words written since 1791 about what these 45 words mean? Millions and probably billions!
The phrase "free speech" means totally different things to different people.
To be more precise, instead of talking about "free speech", first consider what the First Amendment protects.
The First Amendment protects from government limitations upon speech.
Government limitations upon speech could be criminal (e.g. an arrest and criminal prosecution based on speech or expression)
Government limitations upon speech could be civil (e.g. using the power of the civil courts to make someone pay money because of their speech or expression, such as in a defamation lawsuit (libel, slander).
One of my frequent corrections is reminding students to capitalize First Amendment, since it is a proper noun.

Speech categories and my diagrams

Let's outline a way to categorize speech, starting with the biggest category (everything) and then smaller and smaller subsets of that.

I think my diagrams help categorize different types of speech, and what consequences might result from that speech. Think of these six categories.

All speech (any speech or expression)
Annoying speech (speech that annoys at least one person)
Unfriending speech (speech that annoys a person enough that they take some type of action, like their speaking, unfriending, boycotting, etc.)
Protected speech (speech that is protected by the First Amendment in some way)
Civilly actionable speech (a very small subset of the above, speech that someone could sue for and make the person pay money in damages)
Criminally actionable speech (a tiny, infinitesimal subset of the above, speech that could get someone arrested and prosecuted).

Within those six categories, three relate to government consequence, or not:

Protected speech
Civilly actionable speech
Criminally actionable speech.

John's diagram part 1 - the categories

Here we show the five main categories, but they are not to scale, they are big enough so you can see the color scheme, the labels, and a little bit of description.

The categories are:

All speech
Annoying speech (might annoy someone)
Unfriending speech
Civilly actionable speech
Criminally actionable speech

John's diagram part 2 - "Protected speech"

Now we are highlighting "protected speech" with this diagram.

Of course, this is a bit of a simplification.

Note that certain speech might be "protected" from any criminal prosecution, but fair game for a civil litigation.

Remember the key point which is protection from government interference.

Just because speech is protected from government interference does not mean the speech can be made without any type of consequences at all. People might protest, boycott, and etc.

We can debate "cancel culture", but if we are talking about the First Amendment, we need to remember the First Amendment is about what government can do, not about what "society" and individuals can or should do.

John's diagram part 3 - closer to scale!

This diagram is a little bit closer to scale.

The main takeaway here is the vast majority of speech is protected by the First Amendment. A small sliver could be subject to valid civil claims, and a really tiny piece could be criminally punished.

A seventh category

We have covered six important categories, but we need to introduce a seventh.

The six categories deal with negative effects on the listener, and whether they might take an action in response to punish that speech, such as by making a complaint to the police, or seeing a lawyer about filing a civil lawsuit.

We need to explore speech that might even have a desired effect, we call that:

Influencing speech.

This might influence the listener for good or for bad, it might even be manipulation. As a society we need to explore how powerful the internet is, and how that power is concentrated among a relatively small number of tech companies and billionaires.

Let's get lawyerly

[This section is a work in progress]

Court decisions and the law need a process for deciding whether statements are criminally actionable or civilly actionable. And for deciding whether a government action regarding speech is lawful or violates the First Amendment.

So here are some principles.

Is the government restriction on speech "content neutral" or "content based"?
- Content neutral means the restriction does not depend on what the content of the speech is
- Content based means the restriction is about certain types of speech
Certain speech restrictions will get "strict scrutiny" by the courts
If the government restriction on speech is not content neutral, it needs to be narrowly tailored to serve a significant government interest, and will get strict scrutiny
Government may restrict or punish speech that presents a "clear and present danger" or "imminent" danger
"Fighting words" are not protected speech. Fighting words are words that inflict injury or tend to incite an immediate breach of the peace. (Chaplinksy v. New Hampshire, 1942)
Defamation: A civil cause of action for defamation. Defamation can include libel (written speech) or slander (spoken). A plaintiff must establish that the defendant said something false, and that it caused financial harm (damages). If the plaintiff is a public figure, they must also show actual malice.

"Free speech for me but not for thee"

There are a lot of people that prefer their own free speech to that of people they disagree with.

Meaning, they want to muzzle others, but ensure their own speech is allowed without any consequence.

Let's work to understand the law and apply it consistently, not selectively.

First Amendment Chronology and Case Progression

[This section is a work in progress]

An evolution of law and interpretation.

First Amendment ratified in 1791

Interesting concepts and cases that touch upon the First Amendment

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In this civil defamation case, the U.S. Supreme Court provides greater protection for speech about public officials and public figures, requiring a defamation case to show "actual malice". Actual malice means the person knew what they said (or wrote) was false, or said it with a reckless disregard for whether it was false.

Brandenburg v. Ohio, 395 U.S. 444 (1969). In this criminal case, the U.S. Supreme Court limits what speech can be charged criminally as an incitement to violence, requiring intent and a likelihood of imminent lawless action.

There is a lot of speech out there

There is a lot of speech out there, and a lot of it contains false information, conspiracy theories, hateful speech, criminal speech, and more. Whether for profit, political gain, nation-state advantage or simple ignorance, there is lots of propaganda, misinformation, and disinformation.

Let's hope enough people will seek, rely upon, and act upon reliable information, facts, logic, and reason.

Disclaimer

This short article cannot be expected to capture all nuances of the law in this area.