Does Freedom of Speech Really Mean Free? The Extent of Free Speech in the United States

By Arianna Rotondo '28

Guest Writer, University of Central Florida

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Thomas Jefferson wrote that there should be no law that infringes on the people’s free speech. (1) This is the only mention of freedom of speech within the United States Constitution, and its interpretation seems straightforward. No law can be passed that would inhibit what others want to say. So, the term “free speech” is true then. An individual can write or verbalize any thought, and it is fully within their legal rights. That may have been the case at the country’s founding, but now, as America reaches 250 years as a nation, the law operates differently. Certain circumstances limit speech. Particularly in the age of the internet, the issue of free speech has become more prevalent than ever. As such, censors have had to be placed on social media posts, and consequences have been created for expression. This brings into question how far the freedom of speech truly extends. Censorship of speech that is not constructive, true, or diplomatic preserves the country's pillars of truth and freedom.

Words have power. The definition of which words are acceptable has evolved many times throughout the years. Acts that were permissible in the 1700s may not be today. While there is no single piece of legislation governing speech, each constitutional amendment demonstrates that the law must evolve with society’s ever-changing attitudes. Presently, Brandenburg v. Ohio ruled that words that incite violence are harmful and therefore not covered by the First Amendment. (2) Legally, speech is acceptable, provided that it does not harm an individual or a people group. 

The restrictions on freedom of speech are rightfully in place. It was originally written into the Constitution to abandon any tyrannical British influence after the Revolutionary War. Britain’s government was oppressive, so any criticism was prohibited. To preserve the democracy that the country was founded on, concerns must have a space to be voiced. Unfounded or deconstructive criticisms should not have a place online or otherwise, as they can divide the country. Rather, individuals should use available resources such as calling or writing to government offices, so that there is documented evidence to look back on. Constructive criticism is how a country can grow and evolve, but discourteous language can destroy it.    

The United States swiftly realized that not all speech is beneficial, especially when criticism was directed at those in power. As America was on the cusp of war with France, John Adams faced vicious slander, prompting the Adams administration to pass the Sedition Act of 1798. Most commonly known as the Alien and Sedition Acts, the laws targeted any opposition from the Democratic Republicans in the press. (3) Any false, scandalous, or malicious writing that criticized the government was subject to prosecution. (4) This is the first instance of any restriction on free speech—it sets the precedent that speech is subjective. The weight of the words is dependent on who they are directed towards. If there are federal bans on what can be said, this changes the interpretation of the First Amendment; there should be no law infringing on free speech or press, as long as it is edifying. The Alien and Sedition Acts exist today as 18 U.S. Code § 871, which protects against threats towards the president or those in line for it. (5) This code holds that speech intended to harm is not protected under the First Amendment. 

Certainly, a country at war must be united; words have the power to divide it. In the landmark case Schenck v. United States, certain forms of rhetoric are not protected under free speech. Similar to the Sedition Acts, pamphlets opposing a war draft are classified as criticism of one’s country. Published work is right at the intersection of freedom of the press and freedom of speech. The timing of the case is particularly important, as the pamphlets opposed the Great War. When every man is needed to end the war, hindering it is an act of clear and present danger, even treasonous. (6) Had Schenck written a pamphlet during a less tumultuous time, the case may not have garnered much traction or had significant consequences. The severity of speech is decided by the circumstances that surround it. Words on their own do not carry connotation; they are social constructs put into place to protect the government or the people. 

The level of offense is a sliding scale that, legally, is manipulated depending on the time and place in which the words are uttered. The Supreme Court may have ruled at the time of war that the publications could cause great harm, but today the level of offense has increased significantly. Words do not have a fixed meaning, so this freedom is often left to interpretation.  It is one of the most limited amendments due to societal standards. 

Many of the limitations on freedom of speech stem from precedents set by the press, one of the earliest forms of advertising and opinion. Moody v. NetChoice dictates that editors and publishers shape and select other parties' opinions in their speech; it does not change purely because the medium is virtual rather than physical. (7) Free speech is free to the extent that, if social media creates expressive products, they are protected in the same way as editorial companies. (8) Since social media and the press have similar goals, they ought to be ruled similarly.

Writers express themselves through publication, and social media users express themselves through likes, comments, pictures, and videos. Most media consumed today is online, which spreads information faster than ever before. As it becomes easier to be more informed, it becomes harder to ascertain what constitutes freedom of expression and what is harmful enough to warrant censorship. 

Thus, speaking ill of authority at such times should be censored. If a country is at war, it should present itself as a united front. The speed at which news spreads domestically and abroad means that the precedent is needed more than ever. If the country were to go to war and social media platforms exploded with negative remarks about the United States, the perceived strength would change. Censorship should apply to the original creator.  During tumultuous times, the nation should not be overly critical of government efforts, and, if necessary, a precedent exists to prevent danger to the country as a whole or to society. It is not as strictly enforced at present because the nation is not at war, which allows for more outspoken opinions. Still, amplifying unverified, negative claims about the government undermines national unity and casts a weakened image internationally. 

Censorship and acceptance are under even more scrutiny than ever before, especially with the classifications of hate speech, misinformation, and harassment. These, again, are constructs that society or the government has deemed impermissible. (9) This reinforces that speech is subjective to who is hearing it, who it is directed towards, and what the subject is. For the law to determine what classifies speech as harmful, society must decide whether speaking ill of authority and the country is as offensive as speaking ill of one’s peers. Stare decisis, or cases such as Chaplinsky v. New Hampshire and Cohen v. California, would hold that slanderous or false criticism is harmful to a person or to the country as a whole. (10) Therefore, the extent to which free speech is truly free is determined by whether it is deemed innocuous.

The question, then, is how words acquire their connotations. If the connotation of phrases or places is based on the emotions they elicit, then there cannot be an absolute way to make one word always positive or negative. It will constantly evolve, as it has historically. Therefore, the method must eventually be reworked approximately every decade. The next method of censorship would be shock value, but that, again, varies by decade. Despite these failures, there must be a holistic approach to determine the connotation. That way, the law can be applied fairly to best suit any given situation, and opposition can still stand to make the country the democracy it was founded upon. 

It seems natural to censor words that are harmful or incite violence, whether through banning accounts or legal action; however, harmful phrases are not on a fixed scale. Something harmful to one person or group does not translate to all. The religious, cultural, and regional differences across the United States cause semantic shifts. Therefore, that metric is not fully sound. Words are less tangible than actions, making their offense harder to define. With society’s constant shifts, tolerance for certain words and actions changes, so not all speech will be free. Limitations on free speech can benefit the nation, but too many limitations threaten the foundations on which the United States was built. These limitations prove that speech is not actually free. Individuals can write or say anything, but are not free from the consequences that some phrases hold. Therefore, it would be fairer to deem it a freedom of opinion, since there are limitations to the ability to voice it. To balance the scales, the precedent of clear and present danger is a sound metric. If it causes a nation or others to become violent or is blatantly slanderous to authority, it is no longer beneficial speech. If concerns are valid, individuals must be allowed to voice them, but politely and democratically. 

Therefore, proper censorship is healthy for a nation for unity and safety. To do this fairly, there must be a holistic approach that takes into account the statement’s accuracy, platform, tone, and purpose. If the statement is misleading or false, broadcasting that information through the news or social media does not reflect honesty or truth. Since social media and the news can spread faster than ever before, censoring misinformation is imperative. Additionally, a statement posted online will garner more attention than one that is made within a private circle.

Regarding tone, voicing substantiated concerns can improve a country. To avoid a fallen democracy, it is vital to examine how statements are being presented. If the language is vulgar and disrespectful, it can be rephrased to be beneficial. Lastly, purpose is imperative. As with banned books, if the purpose of the material is selfish, uneducational, or intended to degenerate the country or individuals, this is a healthy use of censorship. If the purpose of a statement or action is to incite violence or revolt, it becomes a danger to the country. Using the other categories to examine speech negates corruptive and biased censorship while keeping the government and country in check.  

Endnotes

1. Library of Congress, "First Amendment," Constitution Annotated, https://constitution.congress.gov/constitution/amendment-1/.

2. Brandenburg v. Ohio, 395 U.S. 444 (1969), LexisNexis, https://advance-lexis-com.eu1.proxy.openathens.net/search/?pdmfid=1519360&crid=66ec6569-8834-4292-93e7-3d174c78b27c&pdsearchterms=brandenburg+v.+ohio%2C+395+u.s.+444&pdstartin=hlct%3A1%3A1&pdcaseshlctselectedbyuser=false&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdoriginatingpage=bisnexishome&pdqttype=and&pdquerytemplateid=&ecomp=g248k&prid=0808d586-9b88-4135-bd73-728c13101cea.

3. U.S. House of Representatives, Office of the Historian, "The Sedition Act of 1798," History, Art & Archives, U.S. House of Representatives, https://history.house.gov/Historical-Highlights/1700s/The-Sedition-Act-of-1798.

4. Ibid.

5. Legal Information Institute, "18 U.S. Code § 871—Threats against President and Successors to the Presidency," Cornell Law School, https://www.law.cornell.edu/uscode/text/18/871. 

6. Schenck v. United States, 249 U.S. 47 (1919), LexisNexis, https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1519360&crid=a6bceb9c-1ca3-4903-b8ed-d2cdc7b0752c&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-F6Y0-003B-S14F-00000-00.

7. Moody v. NetChoice, LLC, 603 U.S. 707 (2024), LexisNexis, https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1519360&crid=aabb9c52-a83a-4eb0-ae32-52f0551602bf&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A6CCN-KH13-SCGV-8440-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A6CCT-5C13-RRKF-H388-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=08a05e47-9b9f-4003-9a02-bc9a13725d0f.

8. Ibid.

9. Ibid.

10. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), LexisNexis, https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1519360&crid=a5f55f85-7ea6-4d11-a8eb-7a0bc61dfa12&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-5HB0-003B-74NR-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A7XW4-F5B1-2NSF-C47M-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=7be6bcd3-6985-4ccb-9e06-0d5f6a404ef5; Cohen v. California, 403 U.S. 15 (1971), LexisNexis, https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1519360&crid=dbb946fc-a289-4a27-97eb-81ddd7f1b9b3&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-DJ80-003B-S29D-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A7XW4-F561-2NSF-C057-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=b07192a0-38fb-44bf-b78f-ee9baac87713.