Freedom of Speech – What it really means

There is a common misconception about what freedom of speech actually means. Hopefully this will clear things up.

The text of the First Amendment

Freedom of speech is enshrined in the First Amendment to the United States Constitution. The text of the First Amendment reads 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.

In a nutshell, the 1st Amendment means that federal, state, and local governments are prohibited from preventing or punishing speech. There is nuance to that in that some speech that is criminal can be prohibited and punished. One classic example is how falsely yelling “fire” in a crowded venue so as to incite a dangerous panic is a crime. Another example would be that speaking to a hitman to have a person killed is also criminal. The fact that both of those crimes involve speech doesn’t run afoul of the First Amendment. But, the point is clear: the 1st Amendment applies to prevent the government from punishing or preventing most speech, and the goal behind that protection is to ensure that political speech is not prevented by the government.  The rationale is that a government which can prevent itself from being criticized will turn tyrannical, and the founders of the country wanted to prevent that from happening.

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The First Amendment (and rest of the Bill of Rights) apply against the Government only

The First Amendment applies only against the government, as the plain language shows. Court case after court case has made that clear. Indeed, that makes sense, as the bill of rights (where the 1st Amendment is found) is there to restrain the power of government, not to control individuals or companies:

  • The 1st Amendment protects people against the government controlling or punishing their speech.
  • The 2nd Amendment protects people against the government infringing their ability to have guns and other arms.
  • The 3rd Amendment protects people against the government forcing them to house and feed soldiers in their homes.
  • The 4th Amendment protects people against the government unreasonably searching and seizing their property.
  • The 5th Amendment protects people against the government making them testify against themselves.
  • The 6th Amendment protects people against the government denying them a jury trial or a lawyer (and other rights of the accused).
  • The 7th Amendment protects people from the government’s federal court in a civil context.
  • The 8th Amendment  protects people from the government imposing excessive bail, cruel punishment, etc.
  • The 9th and 10th Amendments act as a catch-all to say that the government is retrained in general from doing things it is not otherwise authorized to do, thereby further protecting the people from the government.
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Individuals and companies cannot violate free speech

The takeaway here is that the 1st Amendment protects people from the government. The 1st Amendment does not, and was never intended, to prevent private actors such as individuals or companies from deciding who they will hire, associate with, fire, or ridicule.

Indeed, the whole purpose of free speech is to have a marketplace of ideas where the best ideas win out, and the repugnant ideas (and those who embrace them) feel the negative consequences.  By preventing the government from silencing our punishing people for speech, the First Amendment ensures that marketplace will exist – and it would be nonsensical to think that the First Amendment should then be used to prevent the marketplace from working as intended.

When Twitter banned Donald Trump, his free speech rights were not violated. When an actor is fired by a studio for their racism, there was no free speech violation. When a racist relative is uninvited from Thanksgiving or blocked on Facebook, there is no free speech violation. Each of those people are not being silenced or punished by the government, and are free to take their speech elsewhere if they wish. The marketplace of ideas is working as intended.

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Individuals and companies are free to decide with whom they will associate, and who they will allow to use their property. That is true whether the property at issue is Twitter’s server, a movie studio’s building, or an individual’s dining room table.  Indeed, it would actually be a constitutional violation if the government (through a law or through its courts) forced someone to allow another to use their server, building, or dining room table.

Note: For the sake of completeness, please note that there is always much nuance in every complex constitutional issue. The foregoing is intended as an overview, not a 1,000 page treatise that fully explores every facet. Nonetheless, the foregoing is an accurate summary and correctly disposes of the untrue notion that a person’s freedom of speech is being violated when a private individual or company chooses not to associate with someone as a result of their speech.