GUEST POST from Don – Free Speech?

FREE SPEECH?

OK, so almost everyone knows of the American Constitutional RIGHT to free speech.  I’ve written about that before.  

What few GET is that the GOVERNMENT cannot restrict speech as long as it doesn’t include violence.  What the government CAN do is regulate when and where that freedom can be restricted.  For example, no one has the right to enter your property.  Their speech right ends at your property line.  Also, it is illegal to use “free speech” to overcome anyone else’s right to “free speech” or any other right under the Constitution.  Like, a protester cannot enter a church and say what he or she wishes.  That is “trespassing.”  Like I said, your right to speech ENDS the moment you cross a property line.

Public speech is permitted in public spaces.

What about in print?  Well, again, your speech right ends the moment you damage another’s rights.  You cannot “slander” another.  You cannot take away the right of free movement of another with your speech.  You cannot verbally threaten another with bodily harm (legally).

What about on public airwaves?  That’s a bit on the tricky side.  If you are clearly speaking your opinion and not proclaiming it to be fact (proclaiming it is true) there is great leeway.  The moment you cross that line between opinion and fact while “reporting” news your right ends.  If you are clearly saying what you believe there’s more flexibility.  But proclaiming it as “news” has greater restrictions.  You had better have sources.  News programs and statements purporting to be factual have to conform to the FCC standards.  You can be wrong, but not purposefully.

What many misunderstand, however, is that your boss doesn’t have to allow you to have free speech while representing the company or while on the clock.  The Constitutional right is about government, not business.  Your boss can fire you without any other cause if you paint a bad light on the business.  Even if that organization is part of the US Government and you are an employee, you don’t have the right to speak your mind while “in uniform,” or with the business e-mail system, or as a “spokesman” for the company.  Your personal interests or opinions, while doing business, are not always allowed.  So, if you refuse to allow someone to order a cake because you personally disagree with that person’s politics … you could be fired.  The business may have the right to refuse, but YOU may not.

While off the job, in most instances you retain free speech rights, but if you are wearing a cap with the name of the business on your head your boss could still fire you.  And if you are a member of the military you are considered “on the job” even when on leave.

Jimmy Kimmel got into trouble because he said stupid stuff (that he proclaimed to be true) which hurt the company brand.  The company had the right to fire him (they needed no other reason).  On the other hand, Kimmel’s free speech rights have not been hindered.  He still can repeat the stupid stuff to anyone who will listen, or on some random street corner in California.  He could even rent a dance hall with a sound system and repeat his words over and over and over until his money runs out.  He just can’t do it on the public airwaves while employed by ABC if they won’t allow him.  Their business … their rights.

There is a question whether the Constitutional right of free speech applies only to individuals.  This has been tested a few times, but the answers have been very specific and not general enough to give an answer that satisfies.  Again, the issue is not “can a business say anything it wants?”  That is clearly, “No.”  For example, the label on your soup can cannot claim it contains chicken if it does not.  The issue is, “Can a business have an opinion?”  The answer to that is “Maybe.”  It took the Supreme Court to decide that a business could have a moral opinion when it came to providing health insurance to its employees.  That’s fairly recent.  By the way, those employees maintained the right to circumvent the employer health plan by purchasing their own if they wished.  So, neither the rights of the business, nor the rights of the employees have been denied.

Then, there are odd aspects to the right.  For example, under oath one cannot tell a lie without risking legal consequences.  Yet, as a political candidate one can tell random untruths about an opponent without any legal consequences.

Another, one cannot use free speech to cause physical harm.  Like, you cannot yell “Fire!” in a crowded movie theater if there is no fire, but you CAN yell the same thing in a cow pasture.  If your words can cause panic and hurry to escape, don’t do it!  You also cannot use electronic communication devices to give false reports (calling 911, for example), but you CAN give false reports while standing on a milk crate on a busy street corner.

The right of free speech also comes with responsibilities.  First is the realization that OTHERS also have the right.  When THEY have applied for a permit to protest or gather for any reason, your right takes a lower priority.  Consider also that you have a choice between sanity or lack thereof.  Don’t jump on the insanity bandwagon if you want your opponents to hear your concerns.  Understand that although you might be allowed to proclaim to anyone who will listen that you hate Jimmy Frank so much that you wish he were dead … you probably should not.  If Jimmy Frank is murdered, you become the number one suspect.

So, it is a complicated right.  It is not a one-size-fits-all issue.  It certainly has dark corners and pokey points.  Many people are confused about how it is legally practiced.  Remember, your right of free speech is principally that the government cannot tell you what you must or must not say.  (In some countries, speaking your mind can result in that government shortening your life.)  However, free speech is not about what you can say on private property.  For instance, while standing in a restaurant you cannot loudly proclaim that their tomato soup does not have tomato in it.  They have rights, too.  You may be arrested for “trespassing.”  On the other hand, you can legally proclaim the same thing on city transit.

Here’s the final thought.  Your right to say it does not give you the right to make me hear it.   Using a megaphone at midnight is “disturbing the peace.”

Copyright 2025 Donald Whelpley

[PLEASE NOTE that Don is always open to discussing the thoughts and opinions he shares here and welcomes comments as shared in the comment section. He doesn’t use other social media platforms and won’t see whatever you’d like to share with him if you post it elsewhere.
ALSO, Don is always open to offer his thoughts on various topics. If you have a specific request, you can let him know in a comment; he reads – and replies to – them all. ~ Sherry]

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