No-So Free Speech

Spectator

By Stephen Tuttle | Oct. 22, 2022

People saying outrageous things and then being called to account for those statements are once again trying to rely on “freedom of speech” for their defense. It is testament to their ignorance of the limits of their freedom, especially as defined in the First Amendment.

Alex Jones is just the latest to use this gambit. Jones spent months claiming the mass shootings of children at Sandy Hook Elementary in Connecticut and Parkland High in Florida were scams perpetrated by “actors.” He repeatedly demeaned grieving parents, and Jones’ ignorant followers then harassed and threatened those parents. When they sued for Jones’ intentional infliction of emotional harm, Jones cried he had First Amendment free speech rights to say whatever he pleased.

Juries and courts decided Jones did not have such rights and ordered him to pay nearly $1 billion in damages to the parents he had insulted and slandered.

He has his defenders, most prominently U.S. Representative Marjorie Taylor Greene, who echoed Jones’ nonsensical notion that insulting dead children and their families is protected speech. She claims Jones is a victim of “political persecution.”

Ironically, as Greene yammers on about the First Amendment and Jones’ right to say just about anything, her most famous intern, Milo Yiannopoulos, is at the same time calling for “meaningful penalties for insulting, irreverent or contemptuous language about our Lord.” Not content to stop there, he went on to claim the First Amendment’s freedoms should apply only to Christians. Neither the Taliban nor the religious police in Iran could have said it any better, though their intolerance would involve Islam, not Christianity.

Jones, Greene, and others now claiming First Amendment free speech rights haven’t the least clue what the Constitution actually says, and it does not give free rein to those spewing defamatory hatred or slanderous lies. The victimizers now claiming to be the victims stain the actual speech rights of everyone else.

The First Amendment says, “Congress shall make no law… abridging the freedom of speech…” Since neither Congress, nor any other level of government has made any such law, Jones’ unconscionable assaults on decency are not protected speech. The courts have traditionally given wide latitude to speech issues but frequently remind us our speech can have consequences.

(Rep. Greene’s aide Yiannopoulos should be reminded that the First Amendment also says, “Congress shall make no law respecting an establishment of religion…” so his call for government-enforced, Christian-only speech protections would destroy the constitution he claims to support.)

While the Constitution enjoins the government from abridging speech, it does not do so with anyone else. Our freedom of speech is not nearly as free as some of us believe. For example, it’s a safe bet your place of employment has some form of a code of conduct to which you agreed when you were hired. It likely included restrictions on your speech especially as it applied to your opinion of the company for which you now work. (That you didn’t read everything in your new employee packet of material doesn’t mean it wasn’t in there.)

Social media platforms that some users believe are, or should be, bastions of free speech are nothing of the sort. Did you read their interminable policies and terms of use, or did you just scan through as fast as possible before you clicked on the “Agree” button? If you are one of the few to have actually read those policies, you would know there are rules aplenty, including limits on the content of your speech to which you agreed.

Your employer might even be checking your social media activity, and they likely have the right to use that activity against you should you post content that is offensive or violates company rules. Larger companies now even use algorithms that can dredge up your old social media activity when deciding who they might hire.

The government, in any of its many forms, cannot make laws or rules that restrain your freedom to speak. But your place of employment can, the social media you use can, your private school can, and whatever you say, write, or post, protected or not, can and will be used against you. Your speech might be free from government proscriptions, but the First Amendment simply does not apply to the private sector.

(There are, of course, exceptions. The government can prevent you from revealing information in classified documents, and law enforcement, an arm of government, can limit what can be said about ongoing investigations, among other things.)

The government did not and could not silence Alex Jones. But speaker beware; free speech has never been absolute, and our Constitution offers little protection for those who ignore that.