How Free is Free Speech?
The roots of free speech are deep, wide, and ancient. In 431 BC, a statesman in Athens extolled the democratic values of open debate and tolerance of social dissent. In ninth-century Persia, an ascetic denied the possibility of prophecy and published his views, citing the traditions of philosophy, literary criticism, and the basics of art, language, and literature. In 1582, a Dutchman insisted that it was “tyrannical to… forbid good books in order to squelch the truth.”
In 1770, Denmark became the first nation in the world to abolish any and all censorship. And in 1789, in Amendment I of the Constitution, the United States declared that Congress shall make no law abridging the freedom of speech. In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion, even an unpopular or unsavory one, without fear of government censorship. It thus protects all forms of communication, from speeches to art and other media.
Not all speech is protected under the Constitution, however. Those that are not include shouting “fire” in a crowded theater, offensive material such as child pornography, libel and slander, plagiarism, and inciting illegal actions or soliciting others to commit crimes. Obscenity, “fighting words,” perjury, and blackmail are also excluded.
A term often tossed about in culture these days is “hate speech.” While not a legal term, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected free speech under the First Amendment.
Free speech, as set out in the First Amendment, has been called in some federal lawsuits “uncommonly vague,” and challengeable under the Fourteenth Amendment’s due process clause. A recent concurring opinion by Supreme Court Justice Neil Gorsuch provides a strong originalist defense as to why the due process clause should foster skepticism toward vaguely worded laws. “Vague laws,” he said, “invite arbitrary power.” Unfortunately, vaguely worded laws have been employed on college campuses and in other settings to suppress disfavored speech.
In May 2018, the National Football League (NFL) implemented a policy that requires all players and team personnel who are present on the sidelines for the National Anthem to “stand and show respect for the flag.” This policy caused many to ask if refusing to stand, or “taking a knee,” is a free speech right.
The First Amendment does not apply to private employers or to private schools, but that does not mean they can restrict free speech in any manner they choose. There are many state and federal laws that protect employee free speech.
In April 2022, the Department of Homeland Security stirred up controversy by creating a Disinformation Governance Board, though it was never entirely clear what the board would do. Since the First Amendment says Congress shall make no laws abridging free speech, DHS Secretary Mayorkas said he was more interested in mis- and dis-information. He stated the board would be used to counter Russian cyber and election misinformation. “We just established a mis – and disinformation governance board in the Department of Homeland Security to more effectively combat this threat, not only to election security but to our homeland security,” he said. But an anti-censorship fervor arose, suggesting the initiative amounted to policing free speech. Businessman Elon Musk said many had “likened it to the Ministry of Truth from George Orwell’s book 1984.”
Senator Rob Portman of Ohio said, “I do not believe that the United States government should turn on the tools that we have used to assist our allies to counter foreign adversaries onto the American people. Our focus should be on bad actors like Russia and China, not our own citizens.”
Although there was no evidence that DHS planned to censor the sharing of online disinformation by ordinary citizens, for example, the board plans were put on pause just three weeks later, in mid-May.
As for social media platforms, their ability to moderate user-created content has been ruled to be protected by the First Amendment. Florida passed a law to stop big tech “censorship,” but the law itself infringes First Amendment rights. A similar law was struck down by the Supreme Court in 1974.
The attorneys general of Missouri and Louisiana have filed suit against President Biden’s administration regarding the cooperation of the government with large tech companies to censor and suppress speech. They allege that this collaboration during the response to the pandemic became pervasive and that similar infringements upon speech are being implemented in other areas as well. The suit states that these actions are violating the free speech protections of the First Amendment.
God’s Holy Word cautions regularly about how you speak. Ephesians 5:4 states, “Let there be no filthiness nor foolish talk nor crude joking, which are out of place, but instead let there be thanksgiving.” James likened the tongue to a rudder on a ship (3:4) and, after listing the fruit of the Spirit of God, the apostle Paul wrote “against such there is no law“ (Galatians 5:23). Let the Word of Christ guide your speech each day (3:16).
How then should we pray?
- That the Supreme Court would continue to protect the right of free speech for the people of the nation.
- That government officials would cease attempts to create panels or boards that would try to interfere in the expressions of its citizens through censorship.
- That candidates, politicians, and others in authority would speak the truth with transparency.
- That social media platforms would be cognizant of the rights of all people to give a voice to their ideas and ideologies, rather than determining which views are permissible.
- That believers’ speech would be “always gracious, seasoned with salt, so that you may know how you ought to answer each person” (Colossians 4:6).
