America’s experiment with free speech

Written by The Likely Voter

November 16, 2023

Amid the war between Israel and Hamas, people across the globe have made their opinions and voices heard, often through public protests. In response, some countries have taken action to silence the voices of those they disagree with. For instance, France has banned protests that express a pro-Palestinian message.

“That seems so strange to us here in the United States,” said Bill Duncan, Sutherland Institute’s constitutional law and religious freedom policy fellow, in a recent interview. “We’re used to a robust feeling of ‘if I want to share my opinion, I’m free to go out and do it.’”

In the global context, legal protections for and cultural support of free speech in the United States are somewhat unusual. As such, protests and government responses surrounding current events can offer an important reminder for Americans to understand what is protected under the First Amendment’s freedom of speech clause and what is not. Duncan outlined three good examples.

Hate speech

In general, it is unconstitutional to punish someone for advocating for something that may be deemed hateful, Duncan said. Over the years, the .S. Supreme Court has protected the right to engage in hate speech.

Duncan referenced Brandenburg v. Ohio, a case where the Supreme Court overturned a Ku Klux Klan member’s conviction, holding that government cannot punish abstract advocacy of force or law violation.

Where such speech may be curtailed, according to Duncan, is when it directly leads to violence.

“Even though we may find their speech reprehensible, they have the right to say it as long as it doesn’t incite violence or create a clear and present danger to the public,” Duncan explained.

Interest group membership

Americans have the right to join groups that advance their beliefs and opinions without disclosing their membership. This can also be categorized under the First Amendment’s protection for the people to “peaceably assemble.”

One potential application of this: allowing membership and donations to be private “prevents undue termination of employment or harassment” by neighbors, Duncan said. Even if others may disagree with someone’s group affiliation, having a culture that allows for freedom of affiliation is another core principle of America’s freedom of speech.

Symbolic speech

The government cannot force people to agree with an opinion they dislike. One of the most contentious examples is flag burning.

In 1989, the Supreme Court decided in Texas v. Johnson that burning the American flag was constitutional.

In its decision, “the court categorized the action as political expression and symbolic speech,” Duncan said. “Just because sincere offense was taken by the action does not mean it is worthy of prohibition.”

America’s experiment with free speech has produced broad protections that ensure diverse ideas and opinions have their place in public debate.

Even when speech, group affiliation, symbolic acts or protests are seen as reprehensible by elected leaders or a majority of citizens, as long as such expression falls within certain bounds as to avoid violence/destruction, it is under the protection of the First Amendment in the United States.

Whenever protests or other public displays on contentious current events claim the headlines, voters should keep the protections and boundaries of free speech in mind.

For a more in-depth perspective on this article, read our Insights piece here.

Takeaways: the most important things voters need to know. For civically engaged citizens.  

  • The legal protections in support of free speech in America are unique in their reach.
  • Though some speech may be believed to be reprehensible, it is still protected under the First Amendment.
  • When protests and contentious issues arise, it is important to keep these protections in mind.

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