What the First Amendment says – 4 basic principles of free speech in the U.S.

https://www.mtsu.edu/first-amendment/post/3910/what-the-first-amendment-really-says-4-basic-principles-of-free-speech-in-the-u-s

by andsoitis • 3 years ago

34 64 3 years ago

mtsu.edu

LinuxBender2• 3 years ago

It does not apply to interactions in other nations, nor interactions between people in the U.S. or companies. If the government is not involved, the First Amendment does not apply.

I believe this should be tested in the Supreme Court of the United States of America. Governments are using Twitter as their primary and sometimes only means of communications to and from the people. It is not clear to me if this was intentional or a mistake. Are they abusing "It's a private platform ..." and/or that is how they felt citizens could be reached?

If the primary means of communication is or should be email or telephone then I believe we should make that clear and Twitter posts from government officials should be labelled as "Unofficial Communications from the {insert government office}. Call: nnn-nnn-nnnn to speak directly to this representative" and probably also mouse-over labelled as "Potential Opinion, Potential Misinformation, not an official stance of {insert government office}."

If this is not an option then all government members should be prevented from having an Official Twitter account and instead they must be labelled as Private Personal Account and the government must instead have their own Mastodon and Matrix instances on government networks.

armada651• 3 years ago

How does the government using Twitter as a means of communication infringe anyone's freedom of speech?

Just because the government uses the services of a corporation does not make that corporation a government agency. Twitter doesn't suddenly lose its right to moderate speech on its platform just because the government uses that platform.

kstrauser• 3 years ago

Right. It can and should restrict how the government uses those services, but not the service itself.

LinuxBender2• 3 years ago

Twitter doesn't suddenly lose its right to moderate speech on its platform just because the government uses that platform.

I think it does, if that is the only means of communication with them. Meaning they only engage on Twitter/X and let their voicemail boxes fill up. That is why I believe this should be tested in the supreme court.

[Edit] I should also that that with the former federal agents that managed to get planted in Twitter that were colluding with active duty federal agents that puts Twitter and the US government position in control of speech. I have no idea if Elon removed all of those people or not or if it makes a difference at this point. For all intents and purposes regarding speech the federal government has functional control as if they had used eminent domain but without getting approval to do so.

I assume speech on Twitter is highly curated at this point. Curated speech has no place in government communications with its people.

sdenton4• 3 years ago

It's not totally clear what, exactly, you're unhappy about here.

Should the government also not be allowed to use newspapers to transmit information? What's special about using social media as a communication medium?

There have been decisions about /how/ government officials can use social media. Most notably, Trump was not allowed to use Twitter's 'block' feature to silence critics, because of the first amendment.

https://www.nytimes.com/2019/07/09/us/politics/trump-twitter...

dfxm122• 3 years ago

I think it's important here to clarify that Trump wasn't allowed to block people because it precluded the people he blocked from seeing Trump's tweets, which were judged to be a matter of national interest. He often made announcements via twitter.

It wasn't about him not being allowed silence critics; he could still do that via the "mute" feature.

seiferteric• 3 years ago

I think my only issue is when the Government applies pressure to private companies to censor when they otherwise wouldn't. That seems to be a gray area since it is de facto the Government taking this action. Also in TFA it says it is only about the Government and not individuals, but according to this: https://www.brownfirmpllc.com/can-an-individual-violate-my-f... it is not always the case, if Gov't conspires with individuals, they can both be liable.

Also I think we need some baseline law for ISP's, not sure if common carrier covers it or not, but I don't think they should be allowed to selectively block.

JoeAltmaier• 3 years ago

Fix that title: 'in US law'

The US has a long culture of endorsing freedom of speech in public, regardless of the presence or government. It's a US principle, which of course resulted in the insistence that the constitution be amended to support it in government activities.

By no means is Freedom of Speech supposed to begin and end with that amendment.

Spivak2• 3 years ago

We do? What's your definition of free speech that people in the US actually adhere to? There are plenty of things you can't say that will cause people to not associate with you, block you, not hire you, not do business with you, refuse you service, ban you from community spaces and events, and at the margins lay you out flat.

As a litmus test the number of physical spaces I could theoretically carry around or display a confederate flag is basically limited to inside my house and public sidewalks. As soon as you step into somewhere privately owned people will absolutely kick you out for it.

You have cultural freedom of speech inasmuch as regular citizens can't use violence in the way the state does but literally every other consequence that can be imposed by private citizens is imposed for speech.

abfan1127• 3 years ago

being free to say things does not preclude you other free individuals to deny you freedom of association with them.

linksnapzz3• 3 years ago

This is a relatively recent phenomena, w.r.t. the confederate flag.

Bud• 3 years ago

Apparently this has to be reiterated:

https://xkcd.com/1357/

ethanbond• 3 years ago

The US has a long culture of endorsing freedom of speech in public

so long as you're the right color/gender/sexuality/faith/wealth status for the particular time and place in question (and it applies in every direction -- there is stuff you effectively cannot say in rural Alabama just like there's stuff you effectively cannot say in lower Manhattan). This has always been the case and is in fact itself a component of free speech: other people are allowed to call you an idiot fuck and not associate with you.

yieldcrv2• 3 years ago

“Congress shall make no law”

has nothing to do with the courts autonomously creating restrictions, as the courts were incorporated in parallel within the constitution

so far, courts have interpreted that to include the courts but their gag orders and heavier punishments based on a person’s speech are all constitutional

“free speech” is a fickle symbiosis people are relying on, an inspirational idea that people like

linksnapzz3• 3 years ago

Courts beneath the Supreme Court are creatures of state and federal law, not the Constitution.

Punishments based on intent (which can be inferred from speech), is Constitutional.

yieldcrv2• 3 years ago

Good points thank you, I had considered that, so the Supreme Court theoretically could outside of its goal of just interpreting the constitution

If original jurisdiction was expanded

bcrosby95• 3 years ago

Note that the first amendment isn't the only word on free speech in the US, and there are states with laws that force private companies to honor the free speech of citizens in certain circumstances.

https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...

NotYourLawyer• 3 years ago

Free speech as a principle is much broader than what’s protected by the first amendment.

mindslight• 3 years ago

Exactly. This article is from that vein of attorneys explaining things in terms of the law as written. It's true in the sense of legal technicalities, but misses the forest for the trees. And being thoroughly steeped in descriptivism, they generally end up straying from their lane and making incorrect statements like "They can be booted off Twitter and any charges of 'Censorship!' don't apply." (it most certainly is censorship - it's just not illegal censorship).

Ultimately the US's Bill of Rights is flawed, having been created before the discoveries of formal logic and complexity induced contradictions of the early 1900's. Framing rights in negative terms allows entities that aren't the de jure government yet still have de facto coercive power to exercise their "rights" at scale, unconstrained by any sense of equity versus individuals' rights. It's why "The Twitter Files" is such a Rorschach red herring - you either see government employees doing the exact same thing that corporate power brokers routinely do over golf games etc, or you get triggered by "government" while ignoring the rest. Either way ignores questioning the sheer majority of censorship. And as corporations become more powerful and unavoidable, they encroach on ever more of our human rights, with no fundamental legal basis to reign them in.

bitwize3• 3 years ago

Governor Newsom in California is proposing a constitutional amendment that radically limits the absolutism of the Second Amendment. It's high time we do the same for the First Amendment -- specifically a money-is-not-speech amendment and an amendment criminalizing hate speech. Free speech absolutism got us Kiwi Farms, Gamergate, and Trump and put marginalized folks at risk of harassment, injury, and death.

(One nice side effect of these amendments is the Republican Party may well shrivel up and disappear, as moneyspeech and hate speech are the Republicans' stock in trade. Every plank and policy in their platform is traceable back to one of those two. The Democrats have an enormous moneyspeech problem too but there at least exist principled Democrats willing to do the right thing without input from corporate masters.)

One of the things the Germans realized is that if you want to enjoy a functioning democracy, you must silence people who hold antidemocratic views well before they become too powerful to be stopped. Accordingly you face criminal charges in Germany for spreading Nazi propaganda. Most of the freest, most democratic nations in the world are like this. Why isn't the USA?

Hint: the USA is not a democracy. It is an oligarchy of the power elite, formed by the power elite for that very purpose. It's functioning as designed, and radical rethought of the Constitution is well past due.

karaterobot• 3 years ago

I wasn't aware that a state Governor could propose an amendment at the federal level, that would be quite a move on his part. Is it possible it's just a PR stunt?

BHSPitMonkey• 3 years ago

He hasn't proposed an amendment, he's proposed proposing an amendment. An actual proposal would require 2/3 approval by either Congress (both houses) or states' legislatures.

bitwize3• 3 years ago

It's a (likely to pass) bill before the California legislature to call for a state constitutional convention. If 2/3 of the states pass such a measure, a convention may be called after which 3/4 of the states may ratify the proposed amendment. It's a means of amendment specified in Article V of the Constitution that can be undertaken without involving the federal Congress.

samanator• 3 years ago

"First they came for the Communists... Then they came for me And there was no one left To speak out for me"

- Martin Niemöller

One man's hate speech is another man's freedom of expression. Who will arbitrate the definition of hate speech?

What if you don't agree with their definition? What if saying you don't agree with their definition also gets labeled as hate speech by the arbitrator?

It's a slippery slope...

bitwize3• 3 years ago

"First they came for the Communists... Then they came for me And there was no one left To speak out for me" - Martin Niemöller

And the reason why there hasn't been a repeat of that in 80 years is because now they come for the Nazis. Somehow, the slope hasn't been slippery enough that the Germans had fallen down it again in all that time.

Again, responsible censorship, including arbitrating what is and isn't hate speech is something that's been successfully done in functioning democracies for decades now. Only in the USA does this seem to be a great big mystery.

Vaslo3• 3 years ago

You lost everybody at Gavin Newson. Chatgpt probably could have wrote the rest of your rant. You are basically one of the typical “free speech as long as it furthers my left wing views otherwise Nazi Nazi Nazi” Lol I swear to God I only read the first two paragraphs before I wrote the above and then I just skimmed the rest of your comment and you quoted Nazi Germany!!!! To be clear, as long as there are people like you, they’ll always be people like me to make sure you don’t stay in power long.

Georgelemental• 3 years ago

criminalizing hate speech

Hmm, this comment by bitwise seems really hateful against free speech protections. I propose that we throw them in jail to punish them for their hatred. /s

One of the things the Germans realized is that if you want to enjoy a functioning democracy, you must silence people who hold antidemocratic views well before they become too powerful to be stopped.

No, you must get your act together and fix your country's problems so that duplicitous demagogues don't have a receptive audience of depesperate people who have lost trust in the system. Nazism would never have taken over Germany if it wasn't for the hyperinflation and economic disaster of the Weimar years, the Soviets would never have won in Russia if the Czars hadn't impoverished the Russian people with serfdom and war, Putin would not be in power today if Yeltsin hadn't let the oligarchs loot the Russian people in the 90s… After WWII, the US invested a fortune through the Marshall plan to rebuild Western Europe economically, that was the most impactful measure for stopping extremism.

Hint: the USA is not a democracy. It is an oligarchy of the power elite, formed by the power elite for that very purpose.

The USA is a constitutional federal republic. It's far from perfect, but it is the freest, most prosperous, most technolgically advanced, and most socially mobile nation of comparable size in history. I wasn't born here, but I live here now and have no plans of leaving; when you know what the real oligarchies are like, it gives you some perspective.

But, let's assume for the more moment that you are correct, and that the US really is run entirely by evil power-hungry oligarchs. Why in the world would you want to give them more power? Do you support the oligarchs?

ToValueFunfetti• 3 years ago

In a real democracy my political opponents would lose all of their elections and would be forbidden from expressing the beliefs I disagree with. Instead we're stuck with whatever you call it when people convince each other to vote for the wrong people. It's time to ban antidemocratic views.

linksnapzz3• 3 years ago

Governor Newsom in California is proposing a constitutional amendment that radically limits the absolutism of the Second Amendment.

Governor Newsom ought to consider the removal of planks from his own eye, ere looking to remove the splinters from other's eyes.

It's high time we do the same for the First Amendment -- specifically a money-is-not-speech amendment and an amendment criminalizing hate speech.

Who gets to make the decision as to what speech is which?

Free speech absolutism got us Kiwi Farms, Gamergate, and Trump

Those are all meh, with but a few moments of hilarity; but as Free Speech also gave us the collected works of Monty Python && all of Richard Pryor and Eddie Murphy's comedy albums, I must reject Spavined Gruesome's attempts at meddling with the 1st.

One nice side effect of these amendments is the Republican Party may well shrivel up and disappear

The party apparatus may or may not disappear, the people who hold their nose and vote (R) will still exist...

One of the things the Germans realized is that if you want to enjoy a functioning democracy, you must silence people who hold antidemocratic views well before they become too powerful to be stopped.

Democracy is when the majority is only allowed to have the Right Opinions.

Accordingly you face criminal charges in Germany for spreading Nazi propaganda.

The occupying governments ...outlawed the iconography of the previous regime? Totally endogenous, I'm sure. The german state is threatened more by the numerous unreconstructed GDR Stalinists in its political and administrative circles than by skinhead knuckleheads in SS drag mincing about in the streets.

Most of the freest, most democratic nations in the world are like this. Why isn't the USA?

This would have a long answer, but to simplify:

Voltaire, Madison, Roger Williams > Karl Popper

Hint: the USA is not a democracy.

Thank goodness. The people who wrote the Constitution knew what eventually happens to those...

jdkee2• 3 years ago

". . . and an amendment criminalizing hate speech."

And who gets to decide what "hate speech" is?

dfxm122• 3 years ago

Interesting timing. Given the recent sentencing to death of a Saudi citizen because of tweets (and YT activity), is Musk still talking about how free speech on Twitter is a "bulwark against tyranny"?

(This is largely rhetorical. I know that KSA is a huge investor in Twitter and Musk's principals are malleable depending on how much money there is to be made.)

lostlogin• 3 years ago

Musk's principals are malleable depending on how much money there is to be made.

I don’t think this is the case. Have his principles increased Twitter’s value? Has he improved the business at all?

Tao33002• 3 years ago

omelet : eggs :: cause : martyrs

infogulch2• 3 years ago

The Bill of Rights — the other name for the first 10 amendments to the U.S. Constitution – like the Constitution itself and all the other amendments, sets limits only on the relationship between the U.S. government and its people.
If the government is not involved, the First Amendment does not apply.

The interesting point where this intersects Twitter is from before Musk took over. The Twitter Files clearly demonstrated that government agencies, from the FBI to the DHS and more, were in intimate contact with internal Twitter moderators and frequently made demands to Censor (wording!) Americans by banning or deranking their posts. Often despite significant protest by Twitter staff! Hell, there was an internal welcome group and onboarding packet for 'former' FBI agents that were hired on to Twitter, sometimes the same people that used to be on the government side of email chains.

The government can't just hide its Censorship behind supposedly independent actions of a private company.

If it's government action in disguise the First Amendment still applies.

Musk's anomalous takeover suddenly and unexpectedly exposed rampant government-directed Censorship happening inside Twitter. There's no such thing as one cockroach. If you see one, there are a hundred hiding that you can't see. The scary part is that the same thing is almost certainly happening across the tech industry.

octonion• 3 years ago

The only things I saw were occasional perfectly reasonable requests, not demands, in areas such as disinformation and invasions of privacy. Furthermore, the internal files were never released as far as I know, but were only given to certain political extremists and then cherry-picked. Am I incorrect? This is why nothing ever came of any of it.

RcouF1uZ4gsC• 3 years ago

The other way that the government tries to do skirt the First Amendment is by having hearings where the Congresspeople/Senators publicly berate and threaten the CEOs of social media companies over content that is protected under the First Amendment

hellojesus2• 3 years ago

The CEOs need to simply inform Congress of 1A. For the life of me, I have no idea why a congressional hearing is threatening to them.

test098• 3 years ago

The Twitter Files clearly demonstrated that government agencies, from the FBI to the DHS and more, were in intimate contact with internal Twitter moderators and frequently made demands to Censor (wording!) Americans by banning or deranking their posts.

the twitter files showed that twitter does this no more than any other social media company for natsec reasons, and the US gov't never (let alone "frequently") made demands to censor anyone.

wturner• 3 years ago

I remember Noam Chomsky being critical decades ago of the major news channels and saying that due to the nature of commercial TV, speech is restricted to soundbites making authentic analysis and criticism inherently difficult for the left. The response by most right wingers was "Those are private companies they can do what they want".

When social media companies put the clamp down on some of these violence peddling wing nuts like Alex Jones, all the right wingers said their freedom of speech was "violated". All the previous talk saying "They're public companies they can do what they want" went right out the window on the right.

Elon Musk is a walking one man government contract. Him buying Twitter should demonstrate that free market ideology is a farce and always has been. The intertwine of Government and big business should become more crystalized when a billionaire buys "the public square". Instead, the opposite has happened and right wingers and libertarians double down on their ideology while hyping up a phony sensationalist narrative that Elon is really exposing corruption!

How many right wingers or libertarians are advocating for systemic change to get money out of politics? Is Elon? No - because he believes money is free speech, he has the most money so he has the most free speech. Until that is addressed, then the rest of this talk is fluff.

raincom• 3 years ago

Government 'subverts' the fourth amendment using the third-party doctrine. Now, extend that logic to every amendment. Use private companies to curtail the first amendment.

breadbreadbread• 3 years ago

I think you conveniently stopped reading before point 3.

The government does, in fact, have the power to regulate some speech. When the rights and liberties of others are in serious jeopardy, speakers who provoke others into violence, wrongfully and recklessly injure reputations or incite others to engage in illegal activity may be silenced or punished.

The twitter files only showed that the government lobbied for changes, and that Twitter agreed to some changes. There is also evidence in those files that Twitter also refused some requests. we can hem and haw about the validity of the requests all day but I want to ask this: If you were a big enough media site that you become a potential public safety/national security risk (something like 90+M American users), what do you propose you should do when the government takes notice and starts contacting you?

Do you think Twitter should have just ignored all emails from the government about public safety threats? Do you think they should have had a policy of just throwing government correspondence in the big ole customer service heap and handled national security and public safety issues in 10-12 business days? when government agencies contact you about potential threats/issues would you take them seriously or laugh in their face? Did these government actors threaten Twitter with legal action or just request action be taken about certain content?

I don't want to be in the position of defending the FBI or a big corporation here, but I think if you have concerns about the conduct of Twitter or government here, the 1st amendment can't be your legal foundation here. You need to 1) contact your representatives about reducing FBI/DHS overreach and potentially restructure their responsibilities and funding. If you have an issue with the FBI we can do something about it together other than yelling about liberal bias at Twitter 2) actually have meaningful conversations about how you think social media should handle things like misinformation, extremism, and hatespeech. Because 0 moderation is not the answer and will never create healthy communities. And 3) think critically about what avenues government can and should use to make requests when it comes to issues of public health. Government is always going to want to keep tabs on what goes on in public forums and have concerns and it's the platforms decision as to whether or not to heed advice. I agree that we should be concerned about any legal threats are attached to requests, but I dont think you'll ever stop government from contacting major platforms that have a major affect on their constituents altogether.

denton-scratch2• 3 years ago

when he spoke the words that day, "And if you don't fight like hell, you're not going to have a country anymore," his intent was to incite the violence that followed.

Is that right? IANAL, but I would have thought that intent is immaterial; if it's forbidden to incite violence, and you incited it, then what you meant to do is neither here nor there.

Intent seems to be a difficult area of law; judges and juries are not telepathic. I don't think there are many crimes that I can commit, for which I would be acquitted if I said I didn't mean to do it.

enoch_r3• 3 years ago

Intent is absolutely part of the law: https://www.law.cornell.edu/uscode/text/18/373

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

Intent is also one of the key factors that distinguishes between different categories of murder - it varies by jurisdiction, but generally premeditated murder (you intended to kill the person in advance) is different than a "crime of passion" (you intended to kill the person at the moment you murdered them), which is in turn different than an "accidental" murder (you didn't mean to kill the victim, but you did).

denton-scratch2• 3 years ago

OK, Thanks. I forgot that the subject was the US constitution.

freejazz• 3 years ago

You can testify that you didn't intend all you want, it doesn't mean anyone will believe you

brightball2• 3 years ago

I don’t know why but it always bothers me when people comment on an amendment in long form like this but only include the excerpt instead of the full context.

The article…

It simply states: "Congress shall make no law … abridging the freedom of speech."

The entire first amendment…

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.

Tao33002• 3 years ago

The article is only addressing that one particular guarantee. The only relevant context they left out was maybe the "or of the press" part.

brightball2• 3 years ago

Still, when you're making a point about the amendment it's helpful to show the entire amendment to the reader is fully aware that no other important context is being left out relative to the position being stated.

anonymousiam2• 3 years ago

This article is all correct, but omits an important distinction in Section 1. The government WAS involved in censorship activities on social media.

https://judiciary.house.gov/media/in-the-news/house-gop-want...

eesmith2• 3 years ago

That is a copy of a New York Post article at https://nypost.com/2022/12/23/house-gop-slaps-fbi-with-prese... .

It describes claims made by some House Republicans in response to the Twitter Files.

As far as I can tell, the link you provided does not demonstrate censorship activities.

For example, the NY Post story you linked to has:

An internal Twitter document published Monday by journalist Michael Shellenberger said that the FBI reimbursed Twitter to the tune of nearly $3.5 million for time spent processing law enforcement requests around the 2020 election.

From https://en.wikipedia.org/wiki/Twitter_Files

Shellenberger shared screenshots of an email from 2021, which included a communication from Twitter's Safety, Content, & Law Enforcement (SCALE) team that Twitter had received $3,415,323 from a 2019 program designed to meet the "statutory right of reimbursement" for the cost of processing requests from the FBI. Musk claimed in a tweet that this payment is proof of the U.S. government bribing the company "to censor info from the public", despite such payments being commonplace for processing legal requests. Twitter's guidelines under law enforcement state that "Twitter may seek reimbursement for costs associated with information produced pursuant to legal process and as permitted by law (e.g., under 18 U.S.C. §2706)". Alex Stamos, former chief security officer at Facebook and partner at cyber consulting firm Krebs Stamos Group, wrote that the reimbursements from the FBI have "absolutely nothing to do with content moderation".

At the very least, please point to the specific example of censorship, rather than a set of second- or third-hand claims.

anonymousiam2• 3 years ago

Is this a better source?

https://en.wikipedia.org/wiki/Twitter_Files

Vaslo3• 3 years ago

For people outside the US, keep in mind the author has a very far left interpretation of the First Amendment. This is obvious with a quick google search of the authors name and the periodicals she writes in and the topics she covers. There is another side to this, her opinion about the amendment is far from absolute.

I don’t want to give her too much publicity but in one opinion piece for example she pretentiously lectures a black Supreme Court justice on what diversity is. That’s all I need to know about her.

jdkee2• 3 years ago

How is her view "far left"? What she wrote fully comports with most constitutional scholars understanding of the First Amendment.

Vaslo3• 3 years ago

Don't get me wrong, I agree with a good bit of what she says, but she lost me a bit with whole sections on "Only for the government" and "Don't conflate legal with morally correct".

There's no consensus that people should lose their job because they say something questionable, except by liberal lawyers who would fight for your right to burn a flag or disparage someone on their right, but will suddenly clam up when one of their political opponents does something they find "morally reprehensible". Who decides what's "moral"? The extremes are easy to see - but what about someone who doesn't want to go along with someone's pronouns? Should they be fined? Should they lose their jobs?

ChrisArchitect• 3 years ago

Actual post from February 2023: https://theconversation.com/what-the-first-amendment-really-...

What the First Amendment says – 4 basic principles of free speech in the U.S.

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