I know I have First Amendment rights – but where and when do they apply?

Discussions about the First Amendment have picked up considerably in the context of social media, employment, and politics. The “right to free speech” may seem simple and straight forward, but whether you do, in fact, have the right to say what you want is much more complex than one might think.

The first thing is to consider whether your speech is being limited by the government or a private entity, such as a business. Remember, the First Amendment only protects against the government infringing on your right to Free Speech – it does not apply to private corporations. For example, your employer may have a policy that limits your ability to make political statements on social media. Similarly, while many believe that users’ First Amendment rights are violated when Facebook, Twitter, or Instagram censor posts, such censorship is actually permissible because these social media companies are private companies.

Government-imposed speech restrictions are much more limited. Generally speaking, the government may not limit a citizen’s speech, unless the limitation complies with the specific framework set forth by the U.S. Supreme Court. In analyzing a governmental limitation on speech, the first step is to determine whether the restriction is limiting content (e.g. messages, ideas, or subject matter), or is content-neutral (expression without regard to its substance). Content-based regulations are almost always unconstitutional, with a few exceptions. Content-neutral limitations, however, are often held to be constitutional.

For example, in Heffron v. International Society for Krishna Consciousness (1981), the U.S. Supreme Court reviewed the constitutionality of a content-neutral limitation that prohibited the distribution of any merchandise, including printed material, at the Minnesota State Fair. The Supreme Court held that this limitation was constitutional because it (1) furthered an important government interest and (2) did so by means substantially related to that interest. This two-prong test is known as “Intermediate Scrutiny.”

In Heffron, the Supreme Court held that the state’s interest in “protecting the safety and convenience of patrons” was important, satisfying the first prong. Turning to the second prong, the Court then reviewed whether the limitation was “substantially related” to effectuating the state’s important interest in protecting the safety and convenience of the fair’s patrons. In doing so, the Court asked whether the limitation was a reasonable “time, place, and manner” restriction. SCOTUS held that it was, because the merchandise distribution ban applied equally to all groups, regardless of the message, and the ban only covered distribution on the state fairgrounds during the hours the fair was open. Without the ban, “allowing all religious, nonreligious, and commercial groups to move about the grounds distributing literature and soliciting funds would result in ‘widespread disorder’ which would be potentially dangerous to the fair’s visitors.”

By contrast, had the Minnesota State Fair merchandise distribution ban only applied to limit distribution of Christian literature, the analysis would be different, because in this hypothetical the restriction would be based on content (e.g., Christian speech versus non-Christian speech), unlike content-neutral restrictions. Generally speaking, when government limits speech based on its content, it must satisfy a much more rigorous “Strict Scrutiny” test – the highest and most difficult constitutional muster to survive. Under Strict Scrutiny review, the government bears the burden of establishing that the restriction is “narrowly tailored” to a “compelling governmental interest.” In other words, the government must show that it is compelled to achieve the objective, and in doing so, the government is using the least restrictive means to achieve that objective.

Other narrow exceptions to unfettered “free speech” exist, in the form of limitations on categories of speech that are considered not to be entitled to First Amendment protection. For example, state laws prohibit defamation (e.g. libel and slander), and entitle one who has been defamed to sue the speaker for damages suffered. Similar laws prohibit speech that constitutes fraud. Further, citizens can contract away their right to free speech, such as when they enter into a non-disclosure agreement, or sign a non-disparagement clause in a contract, and they can be sued for damages if they break their agreement by speaking in the prohibited ways. The U.S. Supreme Court has also prohibited speech that is “obscene,” or that is directed to inciting “imminent lawless action” – though how these terms are defined is forever a moving target in First Amendment jurisprudence.

As clear from this short discussion, while one’s right to “free speech” may sound straightforward at first blush, in fact this fundamental right is governed by complex laws, conflicting interests, and decades of cases that define the parameters of speech in this country. If you believe your speech is being illegally restricted, the First Amendment attorneys at Dhillon Law Group would be happy to speak with you to discuss your legal options.

Michael Yoder is an associate who handles constitutional law matters at Dhillon Law Group Inc.