By Jan S. Gephardt
When it comes to freedom of speech, we have a lot of latitude. We’ve all heard someone say, “It’s a free country! I can say anything I want!” But is that right? Can you literally say anything? Last week I started a series of posts on the First Amendment to the United States Constitution.
The section of the First Amendment relevant to today’s post says, “Congress shall make no law . . . abridging the freedom of speech . . . .” That seems pretty straightforward, but there are wrinkles.
Protected speech has always had exceptions. Today I’d like to address the “criminal element.”
When speech is a crime
Let’s start with slander. Slanderers make false statements that defame and damage a person’s reputation. You’re not free to do that, because it’s just a wrong, unfair thing to do. But then come the questions: How can you prove it’s false? Is it still slander if your victim is famous?
What if you honestly thought it was true when you said it? If you’ve ever forwarded a shocking meme without checking to make sure its “facts” were accurate, you should fold up your righteous indignation, and stick it right back into the cabinet.
Related but different, perjury is a crime because it interferes with the rendering of justice. Doesn’t keep it from happening, but it’s not legal, either.
A particular kind of wrong
How about obscenity and child pornography? People immediately start arguing about “what is obscene?” “To whom?” “In what context?” The so-called “Miller test” defines three points by which to evaluate whether something is obscene, but it’s not perfect, either.
Child pornography, which is extremely destructive to its underage victims, is considered a sex crime—but people have tried to defend it as a First Amendment question.
No freedom for criminal conduct
“Speech integral to criminal conduct” is a broad category, it turns out. The formation of a more perfect union is never served by con artists swindling people, for instance. They have no First Amendment right to defraud someone.
Another prohibited category includes false advertising, which is a kind of swindling. There are a lot of people who think the “false advertising” test should include gaslighting in the political arena (“Pizzagate,” anyone?). So far, however drawing the line between opinion and falsehood or misleading representation has eluded many of us.
Inciting physical harm
Inciting others to commit violence is another kind of speech that’s not free, because it can lead to harm. For instance, ,inciting a mob to do violence, can lead to people getting hurt or killed, property destroyed, etc.
Likewise, making false statements to set off panic (the infamous “falsely yelling ‘fire!’ in a crowded theater” scenario) is not protected. You can’t solicit someone to commit a crime (such as hiring a hit man to take out your inconvenient spouse).
Inconvenient though some might find it, the First Amendment won’t defend extortion or blackmail, either. Except, perhaps, when you’re a president extorting a foreign leader for political aid, and the Senate won’t impeach you?
Hounding your boyfriend via text messages until he kills himself, as Michelle Carter learned, is also not protected. Indeed, true threats, harassment, stalking, and cyberbullying are all criminal behavior, although they can be difficult to prosecute.
For what seem like pretty obvious reasons, filing a false police report is also a crime. That’s what got Amy Cooper, currently the poster child for the “Karen” stereotype, in hot water with the law. Not for her racist rant, which is protected speech. That “only” got her internationally shamed, fired from her job, and her dog adoption rescinded.
For a while, a certain group of online gamers thought “swatting” was pretty funny. This is making calls to police departments to prank them into responding in force to a hapless victim’s address. Hilarious, right? Tyler Barriss thought so, too, until his false call got Andrew Finch, a Wichita man, killed. For this and other “swatting” calls, he’ll spend 20 years in a Federal prison.
Speech is powerful. When used for peace and progress, art, or enlightenment, it can transform communities and uplift lives. When used for evil ends, it can harm, impoverish, or kill. It behooves us all to mind our tongues in certain important ways.
Next week we’ll look at freedom for less-than-popular forms of self-expression that are protected. Even though some people think they shouldn’t be.
If you have thoughts on the things I’ve written here, please let me know in the comments below!
Many thanks to Indivisible Door County, WI for the text of the First Amendment. The “Allegations Denied” image is from @CelebDirtyLaundry via Twitter. I appreciate Quotestats providing the Robert Green Ingersoll quote, and AZ Quotes for the Alan Greenspan quote. Deepest gratitude to Rolling Stone and illustrator Sean McCabe, for the “Pizzagate” illustration. The full illustration has been cropped in the image I used, but is shown in its entirety lower on the source-page. Many thanks to WMMT Channel 3 of Grand Rapids, MI, for the “aftermath of the riot” photo. I’m grateful to Rogue Rocket for the Trump/Zelensky illustration, and also deeply so to photographer Fernando Salazar, the Wichita Eagle, the AP and the New York Times for the photo of the scene outside Andrew Finch’s house the night he died. I appreciate you all!