Myths vs. Facts: Free Speech
Freedom of speech is one of the most important rights we have as Americans, so it is important we understand what activity the First Amendment protects.
Free speech has been a highly discussed and debated issue in 2024. There have been several threats to free speech so far this year, such as violent riots breaking out in reaction to speech on college campuses like UC-Berkeley. Additionally, there has been illegal activity, such as trespassing, taking place at the recent anti-Israel encampment protests, that is mistaken for free speech.
Freedom of speech is one of the most important rights we have as Americans, so it is important we understand what activity the First Amendment protects.
Below are five common myths surrounding free speech:
Myth #1: Protests blocking roads are protected free speech.
Fact: Blocking a road is not free speech protected by the First Amendment, and federal and state governments have the right to prohibit blocking traffic.
This form of protest has been commonly used this past year. For example, protesters have blocked roads leading to Ronald Reagan Washington National Airport (DCA) and several major bridges in New York City in the past few months.
Some argue that the massive inconvenience caused by these protests forces people to pay attention to their cause. Regardless, blocking roads is not a form of protest protected by the First Amendment and can create a potentially dangerous situation for drivers on the road.
Think about it this way; if someone was blocking a road and was not protesting, it would without a doubt be considered an illegal act. Just because someone is expressing support or opposition for a cause while blocking a road does not make the act of blocking a road legal. The act of speaking freely and protesting is not what is illegal; blocking traffic is.
The same argument can be made for other illegal activities wrongly described as free speech. For example, the encampments on Columbia University’s campus and others are not always considered legal protests since most schools do not allow overnight camping on their property. If students choose to violate this policy, they are trespassing, and can be met with law enforcement.
This is also true of blocking entrances and exits to buildings while protesting, as protesters are creating a potentially dangerous situation in the event of a fire or medical emergency. This occurred at UC Berkeley earlier this year when a Jewish club invited an IDF soldier to speak on campus, and a group of protesters blocked the entrance.
As long as regulations on speech are content neutral, narrowly tailored to serve a significant government interest, and allow other avenues for speech, they are legal restrictions that do not violate the First Amendment. These restrictions are called “time, place, and manner” restrictions, and they have been upheld by Supreme Court cases, such as Ward v. Rock Against Racism (1989).
If Virginia, the state DCA is located in, for example, created a law only prohibiting anti-Israel protesters from blocking roads, that would be considered a free speech violation since it is not a content neutral regulation. However, that is not the case. Virginia’s law prohibiting the blocking of roads does not discriminate based on viewpoint and is therefore legal.
Myth #2: All universities have the right to cancel events if they believe they are too controversial.
Fact: While private universities in most states do have the right to permit speech based on viewpoint, public universities cannot.
This is because they are public entities funded and operated by the government. The purpose of the First Amendment is to protect individuals’ right to free speech from government infringement, so when a public university censors speech, this is a violation of the First Amendment, as they are government actors.
Supreme Court cases, such as Tinker v. Des Moines Independent Community School District (1969) and Healy v. James (1972), have upheld the right to student free speech on public university campuses and ruled that these universities cannot censor speech based on viewpoint.
Myth #3: Private institutions and residences are required to allow all speech.
Fact: For the most part, people have the right to decide who they want present on their property and can limit speech based on viewpoint.
A few weeks ago, Dean Erwin Chemerinsky of UC Berkeley Law School hosted a dinner at his house for graduates that was overtaken by a group of anti-Israel protesters who shouted down and disrupted the event. Dean Chemerinsky told the students they must leave. Then, the students who were forced to leave claimed their free speech rights were violated. However, this is not the case.
The government is required to allow free speech in public spaces because they are meant to be open to the public, but they cannot dictate how an individual, organization, company, etc. enforces speech on their own property.
There are some exceptions. California, for example, has a law referred to as the “Leonard Law,” which protects free speech at public and private colleges and universities by prohibiting disciplinary action against a student for speech that would be protected by the First Amendment outside of campus. However, California is the only state with these protections for private colleges and universities, so most private institutions do not have to follow the same requirements when it comes to speech.
Myth #4: Shouting down a speaker is protected free speech.
Fact: Shouting down or seriously disrupting someone else’s speech is not free speech. In fact, it is the opposite.
When a speaker is disrupted, even by someone else’s speech, that speaker’s right to free speech is being violated, as it is suppressing someone else’s speech. The act of using speech to stop or disrupt someone else’s speech is referred to as the “heckler’s veto,” and it is not protected by the First Amendment.
It is important to not disrupt speech and allow individuals and groups with opposing views to be heard. Everyone should have the right to hear all perspectives and come to their own conclusions on what they believe.
Myth #5: Offensive speech is not free speech.
Fact: Even offensive speech is considered free speech, as long as it is not threatening violence.
This has been affirmed by Supreme Court cases, such as Brandenburg v. Ohio (1969), where the Court ruled that the First Amendment protects hateful speech, unless it directly incites lawless action.
It is important to defend the right for all to speak, even if the speech is offensive. It is also dangerous to allow the government to define what “hate speech” is, as it is a vague phrase that can be used to label any speech one opposes.
The best solution to offensive speech is to use your voice to speak out against it, something we all have the right to do because of the First Amendment. People should be able to hear why this speech may be wrong and come to that conclusion on their own, rather than just silencing what is deemed to be hateful. Discussion and debate is much more effective in countering hate speech than censorship.
Conclusion
It is clear based on actions seen on college campuses especially over the past few months that many Americans both do not value free speech and do not understand it.
ALEC model policy, the Forming Open and Robust University Minds (FORUM) Act both protects free speech on public university campuses and requires these universities to educate students on their First Amendment rights. States looking to improve their students’ understanding of free speech should look to this policy as an example of how to do so.