The Beginner's Guide to Free Speech

If you’ve been following the news lately, you probably already know that Donald Trump has been permanently suspended from Twitter. On January 8, 2021, the social media company posted the following statement to their blog:

“After close review of recent Tweets from the @realDonaldTrump account and the context around them – specifically how they are being received and interpreted on and off Twitter – we have permanently suspended the account due to the risk of further incitement of violence...”

Though most of Twitter rejoiced, his supporters immediately began to talk about censorship and freedom of speech. Some threatened to delete their own accounts; others cried that Twitter’s reaction was Orwellian, and that Trump’s First Amendment rights were being violated.

With all this talk about free speech and First Amendment rights, you might be feeling a little confused. Maybe you don’t remember your high school history class, or maybe you’re from another country and want to keep up with the news in the United States. Maybe you can’t even name all five First Amendment rights, so you’re just curious.

This is your brief, beginner’s guide to free speech.

What happened?

Let's recap: on January 6, 2021, pro-Trump extremists stormed the United States Capitol in Washington, DC. They believed false claims (spread by Mr. Trump and other Republican politicians) that the 2020 presidential election results were fraudulent, and that President-elect Joe Biden was not the true winner.

The mob interrupted the counting of electoral college votes, triggering a lockdown in the Capitol and the evacuation of important political figures. Five people died during the attack, including Capitol Police officer Brian D. Sicknick, who was hit in the head with a fire extinguisher; one woman was shot by police while attempting to crawl through a window, and three members of the mob died from medical emergencies.

They were invited to DC by Trump himself, who addressed the crowd that morning and told them to fight to take back the country. After the riot, he addressed them again, calling them “great patriots” and telling them to go home, adding, “We love you.”

On January 8, 2021, the same day Twitter permanently suspended his account, Trump finally conceded and condemned the “heinous” attack against the Capitol. He has since announced that he will not be attending Biden’s January 20 inauguration, leading some to suspect his supporters have something planned for that day.

What does this have to do with the First Amendment?

Much of Trump’s inciting speech and behavior is expressed online, using sites like Twitter and Parler to address his followers. Because this was happening on their platform, Twitter decided to permanently suspend his account to avoid further incitement.

To his followers, this is a form of censorship that violates his First Amendment right to free speech.

So, what is the First Amendment?

The First Amendment was ratified in 1791, along with nine other amendments to the Constitution. These ten amendments make up the Bill of Rights, which was introduced after several delegates of the Constitutional Convention refused to sign the Constitution without it.

"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 to peaceably assemble, and to petition the government for a redress of grievances."

In simpler terms, the First Amendment states that Congress cannot pass legislation that: establishes an official religion, enforcing the separation of church and state, or prevent citizens from worshipping other religions; regulates the expression of citizens, either in speech or print; prohibits people from gathering for peaceful reasons, or prevent people from asking the government to right a wrong.

Are there exceptions to the First Amendment?

Yes. Since it was passed in 1791, Supreme Court cases have helped define citizens' rights under the First Amendment. Though most speech is protected, there are certain categories of speech that are NOT, such as:

• Incitement

• Fighting Words

• Obscenity

• Defamation

• Commercial Speech

Incitement

Inciting others to violence is not protected speech. In Gitlow v. New York (1925), the Supreme Court ruled that states had the right to punish citizens for “utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the peace.”

You might consider hate speech a form of incitement, but some hateful speech and acts are protected by the First Amendment, while others are not. In Brandenburg v. Ohio (1969), the Supreme Court chose to overturn the conviction of KKK member Clarence Brandenburg, stating that his anti-Semitic and anti-black statements were unlikely to incite action.

In Virginia v. Black (2003), they ruled that states had the authority to ban cross-burning and arrest individuals who broke that law. Because cross-burning had been used for years by white supremacists to intimidate and incite violence against black Americans, therefore becoming a symbol of violent bigotry, the Supreme Court decided it did not fall under the protection of Mr. Black’s First Amendment Rights.

Fighting Words

“Fighting words” were first defined in Chaplinsky v. New Hampshire (1942). They are defined as words which, “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”

Essentially, you can’t say something that presents a clear and present danger to someone else.

Obscenity

Obscenity has been difficult to define; Miller v. California (1973) inspired the “Miller Test” to determine whether something is obscene. The material is considered obscene if it lacks value (be it literary, artistic, or scientific), depicts or describes sexual conduct in an offensive way, and if the average person would find the material to contain sexually desirable content. Courts use the Miller Test to determine whether a material is truly obscene.

The only exception to the Miller Test is child pornography, which is inherently obscene and not protected by the First Amendment, in any form.

Defamation

Defamation is a statement that harms the reputation of a party. It includes libel (written statements) and slander (spoken statements), and the statement must include these key elements: the statement is false but presented as fact; it is published or communicated to others; the offending party is at fault due to negligence; and the statement caused some sort of harm to the subject.

In The New York Times Co. v. Sullivan (1964), the Supreme Court ruled that false statements against public figures need to be made with “actual malice.”

Commercial Speech

Commercial speech refers to speech that promotes some type of commerce. The four-part Central Hudson Test is used to determine whether government regulation of commercial speech is constitutional. If the speech passes the first step, it is considered protected speech; this first step looks at whether or not the speech is misleading and if it concerns lawful activity.

In Zauderer v. Office of Disciplinary Counsel (1985), the Supreme Court ruled that states may have their own rules regarding commercial speech, such as requiring an advertiser to disclose certain, relevant information.

Were Donald Trump’s First Amendment rights violated?

No, they were not. Twitter is a private company; they have the right to remove content that doesn’t fit their community guidelines and ban individuals who are posting harmful content on their platform. In the same way Twitter would remove content depicting self-harm or sharing revenge porn, they have to remove content that incites violence, as Trump’s tweets have done on many occasions.

His violent rhetoric is a danger to our democracy. He encouraged civilians to trespass on federal property, putting the lives of everyone inside the Capitol at risk. His words got five people killed, including a Capitol Police officer. He could still be impeached, but it's important he not have a public platform on which to spread his bigotry.

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