Free speech is probably the best known and most revered of our constitutional rights in the U.S. But what exactly is speech? As humans, we have many different ways of expressing our thoughts, opinions, and beliefs. The First Amendment protects these kinds of expression, including:
- spoken and written words
- online blogs, social media posts, and comments
- movies, TV shows, and videos
- theater, dance, and visual art
- video games
- actions that convey a message (known as “symbolic speech”) like burning a flag
- clothes that express an opinion or demonstrate faith, from T-shirts with slogans to religious headscarves
- signing a petition
- political yard signs
- bumper stickers, and
- money, in the form independent spending related to political campaigns (Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)).
The First Amendment also protects the right not to speak (often referred to as a protection from “compelled speech”). In classic examples from U.S. Supreme Court opinions, this means that students may stay silent during the pledge of allegiance (West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)), and drivers may refuse to display a state’s “Live Free or Die” motto on their license plates (Wooley v. Maynard, 430 U.S. 705 (1977).)
Algorithms and "Likes" as Speech
As technology changes, more ways of expressing ideas or opinions come under the “speech” umbrella. For instance, computer code may be entitled to First Amendment protection, to the extent that it conveys information to human beings who understand it (see, for example, Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001)). Some courts have concluded that simply “liking” someone else’s Facebook page, post, or comment is itself a form of speech that’s protected under the First Amendment (see Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013)). And at least one judge found that Google search results are protected free speech.
Questions for Your Lawyer
- I’m a baker who considers decorated cakes to be my art form. If the law says I can’t refuse to make cakes for same-sex weddings—even though homosexuality is against my religion—isn’t that unconstitutional compelled speech?
- I was cited under a city ordinance that makes it illegal to wear sagging pants in public if your underwear shows. Can I fight the citation as a violation of my First Amendment right to express pride and solidarity with African American urban youth culture?
- For me, walking around my gay neighborhood without clothes is an expression of my support for LGBT rights and gay culture, but the city has banned public nudity. Can I sue the city for violating my free speech rights?