The First Amendment to the Constitution protects freedom of speech. However, there are limits on our ability to say and communicate whatever we want.
The most common example of an exception to freedom of speech involves yelling “fire” in a crowded building. In such an instance, people could be hurt or killed as all people seek to immediately exit that building. Limiting that speech is obviously important.
Generally, we also can be precluded from saying something when we agree to not say it (as in a confidentiality agreement).
Libel and slander are also exceptions to free speech. Libel is a written false statement designed to damage someone’s reputation. Slander is essentially spoken libel. Of course, to complicate things, there are exceptions to libel and slander.
Pornography and certain obscene statements or representations can also be prohibited under the Constitution. Of course, what is pornographic and what is obscene changes as the morals (perceptions of right and wrong) of society change.
Another subjective exception to free speech is communication that is intended to and is likely to produce imminent lawless action. In other words, if a person eggs on another person to start a fight, the person whose words triggered the fight may have some legal responsibility because such words are not necessarily protected by the Constitution.
Thus, in summary, there is a lot of speech that is not protected by the Constitution, which is speech that the government can make illegal.
The most important free speech issue that has arisen lately has surrounded social media and whether social media companies are legally responsible for illegal speech.
Presume that a paper company produces paper from trees. A publishing business (such as a newspaper or magazine) then buys that paper and writes libelous, slanderous, pornographic or otherwise illegal statements on the paper and distributes that paper. The government does not hold the paper company responsible for fines, orders or other punishment for that illegal speech created by and distributed by the publishing business.
However, the publishing business can face fines, orders or other punishment for that illegal speech. It does not matter if the publishing business paid for the illegal speech in the articles it printed or not. Notably, whether newspapers are legally liable for letters to the editor is not always clear. However, newspapers are often legally responsible if they print letters to the editor that include illegal speech.
Until now, social media companies have argued that they are essentially paper companies. They provide a blank canvas upon which users post their own content. Thus, if something on Twitter or Facebook is illegal speech, Twitter or Facebook argue that they are not responsible.
However, Twitter and Facebook are beginning to remove from their platforms user posts that violate their “community standards.” As social media companies exercise control over their content, social media companies are likely to eventually become legally responsible for all of their content, even though that content originates from other people, just like the legal responsibilities imposed upon newspapers and magazines.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.