Thoughts from the Middle

What Does It Mean to Have Freedom of Speech?

By

Robert James Fischer

The Problem and Background

Given the continuing access to various media platforms, a growing number of people and organizations are expressing or re-posting information.  Some information is factual, some is partially true, and some is false.  Some is posted to influence opinion based on fabricated information, and some is hateful, meant to stir anger.  An image of a bloody effigy of a president’s severed head, nasty racial slurs, nooses, and Nazi symbols have become common.  When challenged, those who post point to the First Amendment and freedom of speech.  Is this a valid point?  What does it mean to have freedom of speech?  Here’s what the First Amendment says:

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.

While the words are clear, what was the intent of our founding fathers in regard to speech and press?  First, it is important to know that freedom of expression in the First Amendment cannot be regulated by Congress.  What about the right to say whatever you want whenever you want?  Our founding fathers relied on English common law to deal with public speech and press.

Collectively known as defamation, libel and slander are civil wrongs that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to one’s good name or reputation is affected through written or spoken words or visual images.  The founding fathers relied on common (civil law) to control speech. 

The point seems to be clear.  A person can certainly say whatever they want, but in so doing they expose themselves to possible defamation suits.  Is there a point at which free speech reaches a breaking point, and the person or entity is held accountable?  Today, movements such as Me Too and Black Lives Matter have fueled much controversy, which is voiced in social media, in person, and in the press.  Many of the negative comments can only be described as “hateful”!  Should these hateful comments result in some form of punishment, or are they part of freedom of speech? 

The Law

The Supreme Court has consistently followed Thomas Jefferson’s belief that free speech and press are essential to a healthy democracy.  The public exchange of ideas is essential to problem solving.  The response to offensive speech is to respond in speech. This exchange of ideas is seen on various social media platforms.

Still, the Court has found that certain types of speech are not allowable.  In Schenck v. the United States ( Schenck v. U.S. 249 47 (1919)), the Court found that words or actions that incite actions that would harm others are not acceptable free speech.  In addition to incitement, the court limits free speech in areas such as:

• Defamation
• Fraud
• True threats
• Speech that is integral to criminal conduct
• Obscenity

The Role of Free Speech in Our Democracy

Is the “press” feeding Americans false information?  This is an important question.  The press, as envisioned by the founding fathers and supported by Supreme Court decisions, has two major roles in our democracy.  First, the media provides essential facts that inform the public, who can then debate the issues.  Second, the media, as the fourth estate, serves as a watchdog on government.  When the press is attacked, and its legitimacy is questioned, people begin to question the information.  The issue of what to believe was addressed in an earlier article.

It is clear that our government cannot interfere with most speech. However, the current issues revolve around whether social media platforms can limit or censure speech or actions.  For example, Twitter has banned former President Trump.  Other social media users find their posts blocked on Facebook.  Can a football or baseball franchise fine an individual player for “taking a knee”?  The current belief is that these are private companies, and they have the right to control what their employees or users can say or do while employed or using the services provided by their business.

But, what about news sources?  The Supreme Court has held that the First Amendment allows for the freedom to make false statements. However, defamation suits are still an option.  Recently, Dominion and Smartmatic filed billion dollar lawsuits against Fox News and Rudy Giuliani for making false claims about their voting machines.  If they win, it will likely cause media outlets and persons to avoid making false statements.

Can We Control Fake News?

False news will likely not go away unless subject to government regulation or other types of efforts. The following are a few of the suggested means of combating fake news:

• Providing better education of the people regarding various news sources and their credibility
• Encouraging users to seek the truth through fact checking
• Developing a politician’s “code of ethics”
• Amending the Communications Decency Act to hold content providers liable for the information that they publish
• Enacting legislation that would require publishers to disclose their sources and/or who is sponsoring the information
• Restricting the use of false political advertisements and campaign slander (Some states have already enacted these types of restrictions)

While these measures may provide for some control of fake news, they will not stop individuals from sharing opinions.  It is likely not possible to directly regulate opinion speech, given the First Amendment.  The founding fathers’ belief that counter speech would balance false statements will not work when information is shared so quickly and on platforms that reach millions.  It is almost impossible for most Americans to distinguish truth from falsehood when the amount of information that is false rivals or exceeds the amount of factual information.

A recent article in the Fordham Law Review by Daniela C. Manzi suggests another alternative which does not create a conflict with the First Amendment.  She suggests that a viable solution might involve the licensing of professional journalists.  Through licensing, consumers would be assured that the information being provided is factual and properly vetted.  This move might restore faith in mainstream media.

While licensing would not stop non licensed writers from expressing their views, the public would know that the information provided by the licensed journalist and his/her employer could be trusted.  “Consumers would no longer be as susceptible to manipulation by deceitful speakers because they would have reliable, state-licensed sources to turn to in order to better inform their decisions.” (Daniela C. Manzi, “Managing the Misinformation Marketplace:  The First Amendment and the Fight Against Fake News,” 87 Fordham L. Rev. 2623 (2019))

Summary

Fake news is a threat to our democracy as it manipulates people into believing that which is not true.  In turn, these voters often vote against their own interests based on false beliefs.  The strength of the false beliefs also leads to a distrust of legitimate media sources.  It is in the country’s best interest to seriously consider the problem of First Amendment freedoms that allows for fake news to be disseminated at a rate that our founding fathers could never have imagined.  There are solutions; we just need to decide which ones are best for a country that values freedom of speech!