One of the things you regularly encounter online is the fetish Americans have for free speech; not entirely a bad thing, but some of what they believe is a bit of a myth. Part of the problem is that the first amendment to the US constitution is just a little vague and handwavey :-
or abridging the freedom of speech, or of the press
First of all, what is that word “abridging” supposed to mean? It literally means shortening which makes the phrase nonsense even if it was supposed to be read as if “restricting” was the word used. Of course the meaning of language does change and it could well be that at the time, “abridge” would have unambiguously meant restrict. And “freedom of speech”? We normally take that to mean any form of expression whether spoken, written, drawn, or generated in some other way. But was that what was meant?
But now onto the myths … the first is a simple one and there is no real debate about it.
The right of free speech does not give you a right to be published by a third-party. If you are on Facebook for example, there is no right to free speech there – Facebook can decide to arbitrarily restrict what you can say perfectly legally. The government cannot restrict what you self-publish, but your publisher (including forum admins, mailing list admins, etc.) is free to refuse to publish for any reason at all.
Ultimately the only recourse to such censorship is to self-publish which is relatively easy on the Internet.
The second “myth” is a bit more debatable, but arguably the right to free speech is more about being free to criticise the government; in an era of lese-majesty and seditious libel, the major concern of the American revolutionaries was with political free speech. And whilst there has been free speech, there have always been restrictions on that freedom or consequences :-
- Obscenity (as determined by the Miller test).
- Inciting imminent lawlessness such as encouraging a lynch mob. Although this one can be a dangerously slippery slope given it’s historical use against people protesting the draft.
- Commercial speech including advertising, and copyright.
- Libel and slander.
So when looking at a particular restriction on free speech – such as hate speech (i.e. racial or religious hatred) – it is perfectly feasible for a law to be enacted to make such speech punishable in some form.
