Of all the clauses in the Bill of Rights, or the first ten amendments to the United States Constitution, “Congress shall make no law… abridging the freedom of speech” is probably the most discussed and least understood.
It is best understood by what it is not. It is not a license to say whatever you want, to whomever you want, at whatever time and place you want. It is not permission to be rude. It is not permission to hurl obscenities as obscenities are not protected speech.
Speech protected by the United States Constitution comes with restrictions. It is these restrictions that are not readily understood. It is easiest to examine these restrictions as a series of questions that should always be asked when deciding whether or not certain speech might be protected by the Constitution.
First: is it Speech?
- Express: or what is said.
- Symbolic: what is worn or carried.
- Proxy: what is said on behalf of someone else.
It is not thought and it is not behavior.
Second: is the speech about public policy or social issues? Specifically, the speech needs to be about government policy, whether state or federal policy or the government’s position on a social issue.
Supreme Court of the United States – Equal Justice Under the Law
Third, is the speech delivered in the proper forum? There are public forums for protected speech about public policy. These do not include someone’s front yard or a restaurant where one is enjoying a meal. Public spaces are traditional venues as are university classrooms where issues are debated or presented.
Fourth, has the speaker met time, place, and manner restrictions? Public safety often requires that those who wish to voice an opinion obtain a permit that states a specific time and place for the speech. This is required so that officers, who have a duty to protect the speaker, are adequately prepared. Security fees may be required but may not be excessive, as excessive fees may “chill” free speech.
So, let’s say we have met all four of the requirements above, now what? No government can prohibit the speech as it is protected speech under the 1st Amendment of the United States Constitution. No government can bar the viewpoint or the content unless it is obscene or calls for an action (behavior) that is intended to overthrow the government actor. This is true even if the government does not like the content of the speech. As an example, a public school or university is considered a “government actor” and may not bar a viewpoint on campus it does not want to hear. The university may not use the excuse of “public safety” as a reason to ban the speech and must, in fact, protect the speaker not the protest of the speaker.
The reason for protecting all speech regarding public policy is that we, in America, value a marketplace of ideas before creating law. The free-speech clause of the 1st Amendment is considered by many to be the jewel in our Constitutional crown.
If you don’t like what is said about public policy or social issues speak out against it. This is how it is supposed to work in a free society.