When Elon Musk purchased Twitter last year, some praised the move as a win for free speech. The issue of free speech is a frequent topic of national debate, invoked in conversations both about perceived censorship on social media and the dangers of misinformation.
This constitutional right is enshrined in the First Amendment, but what exactly does that mean and how far does one鈥檚 right extend?
鈥淥ne thing people frequently get wrong about the First Amendment is the idea that you have a right to speak,鈥 said Ashutosh Bhagwat, a 新澳门六合彩内幕信息 Davis constitutional law professor who specializes in First Amendment issues. 鈥淭he constitutionally protected right is not a right to speak; it鈥檚 a right to be free of government restrictions on your speech. For that reason, it鈥檚 incoherent to say Twitter or Facebook limit your right to free speech.鈥
First Amendment Text
鈥淐ongress 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.鈥
An individual鈥檚 right to free speech is very broad, with a few exceptions that include threats, obscenity and incitement to violence. But companies like Facebook and Twitter also have a right to free speech.
鈥淔acebook, Instagram and Twitter all have policies that prohibit hate speech,鈥 said Bhagwat. 鈥淭hey can do that because they are not the government. Hate speech is fully protected by the First Amendment.鈥
Bhagwat said the law and the courts have not yet come to terms with the internet and social media. Social media provides the platform for anyone to easily share content with people from around the world. But it also provides a new ability for anyone to defame people, transmit lies or incite to violence. Consider that Facebook boasts nearly 2 billion daily active users and Twitter has more than 200 million.
Another issue is that many different types of speech are considered equal under the law. Bhagwat referenced a number of legal cases that reinforced free speech protections for depictions of animal cruelty (United States v. Stevens, 2010), violent video games (Brown v. Entertainment Merchants Association, 2011) and deliberate lying (United States v. Alvarez, 2012).
鈥淪peech about the next election and who to vote for or what we should do about inflation are viewed the same under the law as non-consensual pornography,鈥 he said. 鈥淭he Supreme Court doesn鈥檛 have a way to distinguish between speech that does harm and speech that doesn鈥檛.鈥
Bhagwat argued that there should be some gauge to judge speech that does harm.
The free speech debate becomes more complicated on college campuses. The First Amendment doesn鈥檛 just limit what Congress can do; it also applies to public institutions like 新澳门六合彩内幕信息 Davis and to its professors.
鈥淎s a public university, we can鈥檛 protect speech at any cost whatsoever. Free speech is enormously important to us, but so too are other values like advancing knowledge and ensuring inclusion,鈥 said Brian Soucek, a 新澳门六合彩内幕信息 Davis law professor and a recent fellow at 新澳门六合彩内幕信息鈥檚 National Center for Free Speech and Civic Engagement.
鈥淲hen we hear people talking about the marketplace of ideas, where free speech is not constrained 鈥 like parks, sidewalks and traditional spaces 鈥 hate speech is allowed. False ideas are not regulated. People can be intemperate and hostile and rude and offensive. All of that is allowed,鈥 he said.
There鈥檚 no shortage of those sorts of places to speak your mind, including on campus, Soucek said, but the university also has a mission to serve the diverse state of California.
鈥淚f universities were just internet chatboards, what would be the use?鈥 Soucek said. 鈥淲e want people from all backgrounds and political persuasions to feel equally free to speak their minds and, more importantly, to learn from others.鈥
College campuses are unique in that different spaces have different rules and varying degrees of free speech protection. Soucek identified three types of spaces, which he calls the quad, the bulletin board and the classroom.
The 鈥渜uad鈥 represents public spaces where people gather, discussions are wide open and speech has the greatest protection under the First Amendment. This includes the 新澳门六合彩内幕信息 Davis Quad, but also sidewalks, streets, parks and other public forums.
The 鈥渂ulletin board鈥 includes spaces set up by the university for shared expression. In these situations, the university can set limits, such as restricting use to a specific department, but it can鈥檛 discriminate because of viewpoint. At 新澳门六合彩内幕信息 Davis, past issues with controversial speakers would also fall into this category. The university can decide that student group funding can never be used on outside speakers. But if it allows student group funding to be used on outside speakers, it cannot then prevent a student group from bringing in a speaker with abhorrent views.
The third campus space is the 鈥渃lassroom,鈥 which is more closely managed. Professors guide expression in all sorts of ways that would violate the First Amendment out on 鈥渢he quad,鈥 Soucek said. These include staying on topic (content discrimination), cold calling students (compelled speech) and grading, which involves viewpoint discrimination.
Soucek said professors have a First Amendment right to make academic judgments about how to run their classes. And he worried about widespread efforts across the country to limit what teachers are able to say on topics like critical race theory and gender identity.
鈥淎cademic freedom, which the First Amendment also protects, means that decisions about what and how to teach should be made by experts within the university, not legislators or others outside of it,鈥 he said. Beyond social media and college campuses, the First Amendment plays another important role.
鈥淭he reason we protect speech is to protect democracy,鈥 said Bhagwat. 鈥淵ou can鈥檛 run a robust democracy without robust discussion. You need wide open discourse and discourse that is sharply critical of leadership and others.鈥