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What you can and can't say: Here's how free speech works under the First Amendment

By Jacob Klopfenstein, KSL.com | Posted - Nov 15th, 2018 @ 2:30pm



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SALT LAKE CITY — Free speech: It’s the right that’s so important that it was the first thing America’s founding fathers added to the Constitution.

But like just about every government document, the Constitution is complicated. Even though the First Amendment is only 45 words long, the language isn’t as cut and dried as it might seem at first.

There are some common misconceptions about free speech, as well as some confusing rules about what’s protected, what’s not and who can police what you say.

And then there’s the ethical question of whether or not you should say something, even if it’s a constitutionally protected form of speech, according to University of Utah law professor and First Amendment scholar RonNell Andersen Jones.

“There’s two separate parallel conversations that we ought to be having," Andersen Jones said, "about how much we are free to say constitutionally and how much we really should be saying and the tone that we should be using in our dialogue on matters of public concern in order to have a healthy, vibrant democracy that solves problems and that keeps America strong.”

Here’s a look at the basics of free speech and what the First Amendment does and doesn’t protect.

Nobody can stop me from saying what I want to say, right?

Wrong.

The biggest misconception about free speech is that people are free to say whatever they want, at any time, with no consequences, Andersen Jones said.

But the First Amendment applies to government entities only.

“It is a right that you have for the government not to stop you from speaking, but lots of other entities may well stop you from speaking,” she said.

That means that anything not government — whether it’s a private individual, a business or another private entity — may have the right to censor your speech. That includes your friends and family members and your employers, too.


What is legal is not always the same boundary as what is appropriate. People are free to say a lot more things than they necessarily should say.

–RonNell Andersen Jones


On the internet, contracts are common for websites that offer a platform for communication, such as social media websites, comment forums and message boards. Users have to agree to terms of service when they sign up for an account on many websites, like Twitter.

If you break one of the terms you agreed to follow, the website may have the right to censor you or even suspend or cancel your account.

“Basically, you’re speaking in their house and that you will … use their communicative mechanism according to their terms,” Andersen Jones said.

What types of speech aren’t protected by the First Amendment?

There are several types of speech that aren’t covered by the First Amendment. But there are very narrow definitions for what qualifies as unprotected, Andersen Jones said.

“Speech can be regulated only as a last resort,” Andersen Jones said. “Only when the reasons are very, very strong.”

Obscenity isn’t protected under the First Amendment, and you aren't protected to make or distribute materials that would be deemed obscene. And there are other specific rules. For example, a student can’t make an obscene speech at a school-sponsored event.

Another form of speech that’s not protected is incitement. That can mean something that would cause the listener to commit imminent lawless action.

One of the stranger types of unprotected speech is “fighting words.” That means something that is so likely to make the listener respond violently that it could be considered the first blow in a physical altercation, Andersen Jones said.

“All these categories I’ve just described are super narrowly defined,” she said.

Other unprotected forms of speech include defamation, including libel and slander, child pornography, perjury, blackmail, true threats (in other words, not an empty threat) and solicitations to commit crimes.

Why is free speech on campus such a contentious topic right now?

Free speech on university and college campuses has become a hot topic in recent years, after several cases in which speakers deemed to be controversial were banned from speaking at campus events.

Just last year, conservative speaker Ben Shapiro’s appearance at the U. drew protests from some campus groups.

The S.J. Quinney College of Law at the U. will host a debate about free speech in the Moot Courtroom from 5-7 p.m. Thursday. The event will feature Lyrissa Lidsky, a dean at the University of Missouri School of Law and Robert Post, a professor at Yale Law School. Andersen Jones will moderate the event.

Lidsky and Post are two of the leading national scholars on free speech, Andersen Jones said. And they have very differing views on the topic, she said.

“I think it’s going to be really, really interesting to hear these two folks talk,” Andersen Jones said. “It’s a very boots on the ground problem in America this very minute.”

So should higher education institutions make free speech their top priority, or is their time better spent focusing on other goals?

That’s the question Lidsky and Post will wrestle with at Thursday’s debate. Lidsky argues that universities ought to be bastions of free speech — that the public’s First Amendment rights should be at their apex on campus, Andersen Jones said.

“On the one hand, we think a university is the place where people go to sort of bask in a wide variety of views and to have their eyes opened to all sorts of things that they might agree with or disagree with,” Andersen Jones said.

But Post suggests that because universities have important academic goals, those might be higher priorities than free speech. Colleges and universities are guiding their students through a particular curriculum and preparing them for the wider world, and Post suggests those priorities are more important, Andersen Jones said.

Post also comes from a unique background because Yale, where he teaches, is a private institution. Lidsky’s employer, the University of Missouri, is a public school that is privy to the Constitution.

It’s a complicated question that isn’t black and white, Andersen Jones said.

“What is legal is not always the same boundary as what is appropriate,” she said. “People are free to say a lot more things than they necessarily should say.”

Those interested in watching Thursday's debate the U. can watch the livestream here.

Jacob Klopfenstein

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