The U.S. Constitution frames free speech rights as a negative, by prohibiting restrictions on those rights. In what’s known as the free speech clause, the First Amendment says that “Congress shall make no law ... abridging freedom of speech.” Originally, that language applied only to the federal government. But as a result of several U.S. Supreme Court decisions in the early 20th century, the First Amendment now applies to actions by federal, state, and local government to outlaw speech (“prior restraint” in legalese) or punish people after they’ve already expressed their views. All branches of government are covered, including:
- state and federal legislatures
- local legislative bodies, such as city councils and county boards of supervisors
- other elected officials
- government agencies
- courts and judges
- police officers and law enforcement agencies, and
- public schools and universities
Clearly, the government category covers a lot of territory—and a lot of potential for censorship. But because the First Amendment doesn’t apply to nongovernmental actions, private businesses, organizations, and individuals are free to limit speech however they wish, as long as they aren’t violating contracts or other laws (including federal antidiscrimination laws or state laws protecting political activity by employees).
For example, it’s generally not a violation of the First Amendment if:
- a private employer fires a worker for expressing political opinions the boss doesn’t like
- a private religious school disciplines or expels a student for wearing a T-shirt with a pro-LGBT message
- a private media company won’t publish content that doesn’t align with the owner’s political views
- an Internet service provider refuses to host a website that embraces white supremacy
- a private homeowners’ association bans political yard signs, or
- a bookstore only sells books with a conservative viewpoint.
Free Speech and Civil Lawsuits
Even though the First Amendment doesn’t apply to censorship by private parties, people who are being sued for the harmful effects of their speech may claim their rights to freedom of expression as a defense in the civil lawsuits. In a case involving a protest by the Westboro Baptist Church at a veteran’s funeral, the Supreme Court held that the church members were entitled to First Amendment protection from a lawsuit filed by the vet’s father, who claimed that their virulent anti-gay signs had caused him emotional distress. (Snyder v. Phelps, 562 U.S. 443 (2011).)
Questions for Your Lawyer
- My local public transit system refuses to accept my paid advertising that decries police violence. The agency says the ads have disturbing images, but I think it’s because of the political content. Can I force them to take the ads?
- I work for a private employer that gets all its work from government contracts. Can my boss fire me for a Facebook post that criticizes the government?
- Can I sue the owners of a large shopping mall for violating my First Amendment rights by stopping me from passing out flyers in the public walkways at the mall?