Free Speech

Freedom of Speech ≠ The Free Speech Clause

One key difference: The Free Speech Clause is about governmental restrictions on speech; freedom of speech is about restrictions on speech more broadly.

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This is something of an obvious point, but it's worth repeating, it seems to me.

Lots of laypeople, in my experience, talk about private speech restrictions as violations of the First Amendment. They're not. Generally speaking, if you're kicked off Facebook, or fired by your private employer, or kicked out of your private club for your speech, that's not a First Amendment violation. (There are some complications involving, for instance, private entities following governmental commands, but those are rare.)

This is called the "state action doctrine": The Bill of Rights generally protects you only against action by the state, in the sense of the government (federal, state, or local), not against private parties. It applies to the Second Amendment, Fourth Amendment, and other Bill of Rights protection as well. It's important to know.

But it's also important not to overstate it, by confusing the scope of the Free Speech Clause with the broader principle of freedom of speech. The freedom of speech can refer to freedom from private entities as well as governmental ones.

That's nothing unusual: The right to property can refer to the right not to have your property improperly taken by the government and the right not to have your property improperly taken by private entities. The right to privacy can refer to the right not to have the government invade your privacy in various ways (contested as the scope of this might be) as well as the right not to have other people invade your privacy in various ways. The freedom of religion (or, say, the freedom to wear religious symbols) can refer to the right not to have the government abridge that freedom in various ways as well as the right not to have employers abridge that freedom in various ways. These are important rights; they're just protected not by the Constitution, but by state and federal laws, and sometimes by social or professional norms.

And there can be good reasons to protect freedom of speech (as well as other rights) from private abridgment as well as from governmental one. Private restraints on speech can interfere with self-expression and autonomy. Private restraints on speech can interfere with the search for truth, the marketplace of ideas, or democratic self-government. They may not interfere as much as does, say, the threat of prison for saying certain things; but they may interfere more than some more modest threats imposed by the government.

Now of course protecting freedom of speech from private entities raises its own complicated sets of problems. Some such protections can violate others' free speech rights (e.g., if you extend free speech to include a right to march in someone else's parade or publish in someone else's newspaper). They can violate others' religious freedom rights (e.g., if you bar churches from excommunicating members based on their speech).

And they can limit others' property rights, or others' rights to choose whom to associate with; even if those limitations aren't unconstitutional, they can still be wrong. This is why many libertarians, who strongly value property rights, resist creating such speech-protective but private-party-restricting rules, to the extent those rules protect against firing, expulsion, removal from property, and the like (as opposed to protecting against private violence or vandalism).

But such protections are nonetheless protections for the freedom of speech. To offer some examples,

  1. About half of Americans live in jurisdictions that in some measure protect private employees from being fired by their employers for political speech (sometimes just speech related to elections and sometimes speech more broadly). This helps protect political debate, I think, though of course at some cost.
  2. California law protects private university and high school students from being disciplined for their speech; and there are similar free speech rules promised by many private universities in other states.
  3. A few states (California, New Jersey, and Pennsylvania) protect public speech at large private shopping malls.
  4. Regulations of various public utilities and common carriers, which require them to generally accept all paying customers, incidentally protect people and groups from losing important services because of their speech.

I'm not sure all these laws are sound. But they do protect free speech, whether we think they're on balance justified or not. If that's a position usually associated more with liberals than with conservatives or libertarians, well then the liberals are right about that (though again one can dispute whether those free speech protections are sound, given the countervailing private property rights and associational rights that we might value).

And even beyond legal rules or contractual obligations, some kinds of restrictions interfere with free speech. If, for instance, an important professional organization threatens to expel members who are viewed (often incorrectly) as Communists, racists, and the like, that can deter public debate and political participation by its members.

Perhaps the organization should have the legal right to do that. Indeed, perhaps in some situations the organization's actions might be justifiable—maybe what constitutes improper interference with speech might be different for private organizations than for the government, and might differ among private organizations. But in other situations the organization might rightly be faulted for improperly interfering with the speech of its members, and undermining democratic self-government.

So remember the state action doctrine when it comes to the Free Speech Clause; but remember that there's more to actual freedom of speech than just the freedom from government retaliation.

NEXT: Speech-or-Debate Clause Bars Lawsuit Over House Proxy Voting Rules

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  1. “(There are some complications involving, for instance, private entities following governmental commands, but those are rare.)”

    How do we know how rare these “suggestiomands” (my coinage) are? Is every such suggtiomand made public? And there have been plenty of public ones, too.

  2. Is a state within its rights to divest from a company based on the company’s campaign contributions?

    1. legalizemushrooms

      Is there a jurisdiction where they are illegal? Do tell.

  3. The focus on free speech as a legal concept is too narrow, IMO. As Prof. Volokh rightly notes, outside government actors, legal protections for free speech are few and far between.

    But free speech is also a culture. Ideas and debate should be tolerated, within very broad limits. Unfortunately, in the last 20 years or so, the culture of free speech has seriously eroded in many quarters. In many cases, this is a result of cynical manipulation — anyone who disagrees with me must be racist/sexist/homophobic or whatever out-of-bounds opinion is au courant. By and large it is the culture of free speech, not the legality of free speech, that is in jeopardy.

    1. If the culture of free speech dies, the courts will stop enforcing the legality, and the presence of the 1st amendment in the Constitution will avail us naught. It might take a while, but it will happen.

      The worst thing about this, is it isn’t the culture of the general population that matters, or the voting population. It’s the culture of the governing elites that the courts follow, because they’re the people picking the judges and justices. So it is entirely possible for the majority to want freedom of speech, and judges to cooperate in destroying it anyway.

      1. Good point. The other day someone mentioned German judge Lothar Kreyssig who, “on firm legal grounds,” stood up against the Nazis’ euthanasia program and concentration camps. As the article makes clear, the laws were there, it was just a matter of enforcing them. But Judge Kreyssig was forced out, and no one else was willing to stand up to Hitler’s regime. It is unlikely that Hitler & Co. would’ve proceeded with their murderous plans if more German judges had followed Mr. Kreyssig’s example.

  4. “Generally speaking, if you’re kicked off Facebook, or fired by your private employer, or kicked out of your private club for your speech, that’s not a First Amendment violation.”

    Generally, if you kick someone out of your business for political reasons, like advocating transgender surgeries on children, or speaking in favor of killing babies, that’s not an equal protection violation. Unless the kicked out is homosexual, black, or a socialist. Then it is.

    1. You are alluding to civil rights statutes, which apply to certain situations (employment, housing, public accomodations) and protected classes (race, sex, religion, and in some states, sexual orientation). These do apply to private actors, but their focus, for the most part, are not free speech.

      California also protects employees’ political beliefs, so there is some protection there.

      1. Translation, government protection and force for me but not for thee.

  5. I believe this post hits the nail on the head, linguistically.

    I also think that the point needs to be made indicates that many people are so focused on constitutional rights, that they are tempted to define many concepts like “freedom of speech” with respect to those rights. But judges have reason to interpret these rights somewhat narrowly (in order to create room for Congress to try to balance competing interests that are very important based on the outcome of elections… but within certain boundaries, so that minority rights are not trampled). We should not confuse rights as interpreted by judges as exhausting discussion of a topic, since Courts, concerned about separation of powers, define floors but not ceilings with respect to rights.

  6. The misunderstanding i see most often and most deeply is the reverse. Because the government is not directly censoring censorship is fine and dandy and there is no argument against it as if free speech is just a legal technicality that should be checkboxed instead of a value we should work toward.

    The direct misunderstanding of free speech with the 1st Amendment i find surprisingly rare. At least when stated with the same certainty and pendantic arrogance as the ‘its fine because the government isnt censoring” crowd.

    1. Amos,
      Literally no one, on any side of the issue, EVER, has suggested that censorship is just fine & dandy (ie, that there are no plausible arguments against censorship). Aside from you; there are 7.6 billion people on earth who–to the extent that they think about the issue–recognize that there is nuance and there are ALWAYS costs…even with policies they 100% agree with.

      I sometimes can’t tell if you are arguing in good faith (but you’re really that far off the reservation), or, if you’re here trolling.

      1. No, what they’ll say is that censorship is just fine and dandy, even morally obligatory, for speech that’s beyond some boundary. Not for ordinary speech, obviously.

        Where that boundary just happens to be right smack between what they agree with, and what they disagree with. But that’s just coincidence, because only really eeevil people actually disagree with them.

  7. Now if we could just convince schools to teach this post instead of CRT, we’d be back on the right track.

    If, for instance, an important professional organization threatens to expel members who are viewed (often incorrectly) as Communists, racists, and the like, that can deter public debate and political participation by its members.

    Perhaps the organization should have the legal right to do that.

    Presumably, “should” in this case would hinge on whether the important professional organization enjoys some sort of state sanction?

  8. This misunderstanding isn’t limited to freedom of speech. A lot of people fail to grasp the distinction between wrong and illegal / unconstitutional. I once said (in an online discussion): “…the 1964 Civil Rights Act went further, prohibiting racial discrimination by completely private entities. That was wrong.” Someone replied: “The Supreme Court said otherwise.” Total lack of understanding.

  9. BuT tHiS iS aMeRIca. I aM fReE tO Do wHatEvEr i wAnT.

  10. NOT correct.
    The POTUS can infringe on Free Speech as long as congrab makes no law authorizing him to do so

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