“I do not think it means what you think it means.”—Inigo Montoya, The Princess Bride
One of the most cherished rights we have in the United States is freedom of speech under the First Amendment to the Constitution. The First Amendment reads: “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.” In large part, states are also prohibited from trampling First Amendment rights under the equal protection clause of the Fourteenth Amendment.
Unfortunately, far too many people are decrying their loss of their free speech rights under this amendment when it is simply not true. Here are the top three ways that people get the First Amendment wrong.
Misconception 1: People being banned from Twitter are losing their First Amendment rights
Since Twitter is a private company providing a communications and social media service, they are not the government. The government is restrained from stopping people from expressing their opinions under most circumstances. When someone is banned from a social media platform for expressing racist or bigoted opinions, spreading misinformation, or for any other reason, it is because the account holder has violated the terms under which they signed up to use the service.
Misconception 2: People using their First Amendment Rights to express their opinions are illegally being “canceled,”shunned, and are losing their livelihoods
There is no First Amendment right freeing people from the consequences of expressing their opinions, especially when there is no government action involved. With the ever-growing reach of social media and the increased ability to send opinions far and wide, racist or bigoted statements in particular can end up “going viral” and irrevocably damaging the speaker/poster.
People can decry “cancel culture” all they want, but keep the following things in mind: 1) when people express horrible opinions, it does reflect back on the company they work for, and it could cause them to lose a lot of business for continuing to employ them, so getting fired is often justified as an acceptable business decision; 2) when business owners express horrible opinions, and people may write horrible reviews and tell others not to patronize the business, but they are now exercising their free speech rights, and 3) often, the “canceling” people decry is nothing more than other people spreading the original message with a negative commentary, and people are (and should be) responsible for the words they speak. The First Amendment gives you the right to express disgusting and horrible opinions, but it does not insulate the speaker from negative consequences. This is leading to the promotion of a new phrase, which is “It’s not cancel culture; it’s consequence culture.”
Misconception 3: You can’t be charged with a crime just for something you said because of the First Amendment
The first two misconceptions dealt with private consequences, but now in the third we are talking about the government actually punishing speech. While it sounds like this would be absolutely prohibited by the First Amendment, there are plenty of crimes that solely based on what people said. A mob boss orders his underlings to kill someone, and that is considered the crime of murder. Three people discuss robbing a bank, and that is the crime of conspiracy. The brother of someone on trial tells a jury member that he will burn their house down unless the juror acquits their brother, that is the crime jury tampering.
All of these crimes usually involve gathering physical evidence to bolster the accusation or provide proof of related crimes, such as finding masks, guns, and floorplans of a bank to support a charge of conspiracy to commit bank robbery. However, just a recording of the spoken words or copies of written statements would be enough evidence for a jury to convict the co-conspirators. Clearly in these circumstances, there is no First Amendment protection around the speech, and speech alone can be a crime.
While one of the crowning achievements of our democracy is freedom of speech, the First Amendment is not a blank check for people to say or post whatever they want with zero negative consequences. There are long-standing parameters protecting free speech from government intrusion, but even those parameters do not discount all potential crimes based on speech. Probably one of the best pieces of advice I heard was before saying or posting something, just assume it will be brought up in an interview for your dream job and then decide whether or not to say it. When it comes to social media and the Internet, you can count on your words, good or bad, being tied to you forever.