Published On: June 1st, 2023

Miss Constitution has written a number of columns on the free speech clause of the 1st Amendment to the United States Constitution, but she thinks a “refresher” is necessary as the rules regarding Constitutionally protected speech are often counter-intuitive.  Emotions in America are high right now, and our civic discourse ever coarser, as institutions our nation has relied upon for centuries for stability crumble under the weight of the cultural revolution we are now experiencing.

With rhetoric at fever pitch, what are the rules around “free speech” that we are required to follow?

First, there is no “free” speech in America.  There is speech within certain rules.  The rules are different for children than they are for adults and there are certain verbal courtesies associated with gender and age.  The rules for speech fall into three of the four categories of the Rule of Law:

  1. Moral Law rules
  2. Positive Law rules
  3. Unwritten Law rules

One is required to follow the rules in all three categories.  Moral Law tells us that we may not take the Lord’s name in vain.  Unwritten Law tells us our language toward each other must be courteous and polite, but may be firm.  There is no justification for cursing at children or anyone else.  Obscenities, either verbal or symbolic, are not protected by any of the three categories of the Rule of Law.  Works of literature and other forms of art often depict or describe the obscene as a way of making a particular point, but these are indirect representations of speech and generally protected as intellectual property.  What is a work of art versus what is patently obscene is a constant source of societal discussion.

This brings us to the Positive Law rules that are associated with the 1st Amendment to the United States Constitution.  Our national constitution, along with the common law (judicial decisions in state and colonial courts and common law inherited from Great Britain), state and federal statutes, administrative rules, local ordinances, and state constitutions, form what most people think of as the “Law”, and is called Positive Law.  Here are the rules for speech within Positive Law and protected from censorship by the US Constitution:

  1. “Speech” is defined as verbal or symbolic (a message on a t-shirt, for example) but not obscene
  1. The speech is delivered by a government actor or by a representative of an entity that receives substantial public funds or is delivered by citizens peacefully assembling
  1. The speech is about public policy
  1. The speech is delivered in a public forum and adheres to time, place, and manner restrictions
  1. If all the above four requirements are met, no government actor may censor the speech and those in authority must protect the speaker without comment.

Second, if on public policy there is no such thing as “disinformation.”  All points of view on public policy are valid.  The public decides what information is correct and what information is not correct.  No government actor makes that decision for the public.

Third, “hate” speech is Constitutionally protected speech if all the rules are followed.

Miss Constitution, hate speech is not illegal?  No, not necessarily.  Here are three examples:

  1. Rashid Tlaib is a Congresswoman from Michigan and an ardent supporter of Palestine. She has called Israel an apartheid regime and an illegitimate country.  She considers the Jewish state a catastrophe (Nabka) for her people and the world.  Many Jewish groups consider her anti-Semitic.  In a recent presentation in the Senate of the United States, Rep. Tlaib blasted United States support for Israel’s 75th anniversary.

Was Rep. Tlaib’s presentation “speech”?  Yes. Was it delivered by a government actor?  Yes. Was the speech about public policy? Yes. Was it delivered in a public forum? Yes. However hateful to some, is this speech protected by the US Constitution’s 1st Amendment Free Speech Clause?  Yes. On the other hand, when elected, Rep. Tlaib said, as part of her victory address, “We’re going to impeach the Motherf_ _ _ _r.”  Is this “speech”?  No, this is obscene.  It is not constitutionally protected.

  1. In 2017, a number of groups opposing the removal of Confederate statues in Charlottesville, VA got a permit from the city to march on a certain day at a certain time. They carried protest signs and banners offensive to many.  They also yelled their ardent positions on behalf of those states that seceded from the Union.

Were the banners, flags, signs, and chants “speech”?  Yes. Was it delivered by government actors? No. Was it delivered in a public forum following time, place, and manner restrictions? Yes. Was the speech about public policy? Yes. Is this speech protected by the US Constitution?  Yes, it is protected in a citizen’s right to peaceably assemble and speak if all rules are followed. The marchers were attacked and violence ensued including one death.  Are the marchers liable? No. The authorities were required to protect the marchers by separating those hostile to them and in their official positions are not allowed to comment on the content of the speech.

  1. At Hunter College, recently, a professor of art approached a pro-life information table and proceeded to berate the students personally and accused them of “triggering” her students. One student put a plastic fetus in her mouth, chewed on it, spit it out, turned her back to the information table and said, “Go kill yourselves.”

Was the professor’s diatribe “speech”?  Yes and no.  Regarding abortion – yes; the profanities – no. Was the student’s epithet “speech”?  No, it was not about public policy.  Was the act of chewing on the fetus and spitting it out “speech”?  Yes, symbolic, but hateful to many.  Was it delivered in a public forum following time, place, and manner restrictions?  Yes and no.  The College might be public but this was not part of a specific class.

How then, should “Go kill yourselves” be characterized?  Miss Constitution would call it an aside. It would be hateful if directed at a particular person.  There is great confusion in our country regarding the parameters of constitutionally protected speech.  A checklist helps.  The most important of the rules are the requirements of common courtesy and restrictions on censorship. “I’m sorry” is not mentioned in the US Constitution but is certainly within its spirit.

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    About the Author: Miss C

    M.E. Boyd, "Miss Constitution" is an attorney, author, and instructor in Business, Educational, and Constitutional Law. She has appeared on television and radio and speaks publicly on American history, the founding documents, and current political issues. Her mission is to help citizens understand the Founding philosophies behind the system so that we can-together-help preserve the blessings of liberty and prosperity. Read more about Miss C