Freedom of Speech Does Have Exceptions

The recent Texas appellate court’s decision concerning revenge porn and a Sarasota promposal gone awry have brought to the forefront our constitutionally guaranteed right to freedom of speech and expression.  While many may not have read the Constitution or know how many amendments it contains (27), everyone knows they have a right to free speech.  Freedom of speech is guaranteed by our constitution as a safeguard to individual liberty regardless of whether that speech or expression is deemed offensive by the majority of citizens.

What isn’t so well know is that this constitutional right has some specific limitations. Those exceptions have been confirmed in court cases and include:

  • To incite actions that would harm others (e.g., “Shouting ‘fire’ in a crowded theater.”).
    Schenck v. United States, 249 U.S. 47 (1919).
  • To make or distribute obscene materials.
    Roth v. United States, 354 U.S. 476 (1957).
  • To burn draft cards as an anti-war protest.
    United States v. O’Brien, 391 U.S. 367 (1968).
  • To permit students to print articles in a school newspaper over the objections of the school administration.
    Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
  • Of students to make an obscene speech at a school-sponsored event.
    Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
  • Of students to advocate illegal drug use at a school-sponsored event.
    Morse v. Frederick, __ U.S. __ (2007).

Some of these are straightforward like you can’t shout “fire” in a crowded theater.  Some are not so easily determined such as what constitutes “obscene” materials.  The famous “I know it when I see it” describes how our society has come to understand this exception. The phrase was used in 1964 by Supreme Court Justice Stewart Potter his threshold test for obscenity in Jacobellis v. Ohio.  In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

So, freedom of speech is cherished but controversial.  That’s the price of living in a free country.  Was the Sarasota promposal offensive and stupid?  Yes.  Was it an exception to free speech?  No.  The same can be said about revenge porn.  My last post on the subject of revenge porn made this point.  Yes, it’s offensive but it can’t be attacked by citing exceptions to freedom of speech.

A pluralistic society such as ours must accept more than one opinion even when that opinion is deemed offensive by some.  Our freedom depends upon it.

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