The Limits Of Free Speech

For those that might care about the limits of free speech (e.g., perhaps someone owning Twitter), this article provides a summary of speech (written or oral) that can trigger civil or criminal liability and that is emphatically not free, on-line or otherwise:

1. Obscenity. There are valid, enforceable laws against obscenity, limited by the Supreme Court to pornographic material that violates contemporary community standards and has no serious literary, artistic, political, or scientific value. Since the test is based on local standards, an internet app with a national reach is at risk if it includes pornographic material that any locality finds offensive.

2. Child Pornography. Enough said.

3. Revenge Porn. Many states have enacted laws against so-called “revenge porn,” where not-so-nice people post sexual pictures or videos of former lovers. While the Supreme Court has not weighed in on this, my bet is the laws will be enforced given the current leaning of the Court.

4. Defamation. For all those that think they can spew whatever falsities they want about others, just ask bankrupt Alex Jones how he plans to pay the $1 billion judgement against him for defaming the parents of the children shot at Sandy Hook. And it is worth noting that companies and their products can be defamed, just in case the issue comes up, say, in any cases dealing with false allegations against voting machines.

5. Incitement to violence. Most states have laws against speech intended to incite violence, which the Supreme Court has limited to speech intended to incite imminent lawless action. This might apply, for example, to a speech to an armed mob suggesting that they march on the Capitol to resolve an election with trial by combat.

6. Threats. There are valid, enforceable laws against making threats, limited by the Supreme Court to statements or acts expressly or implicitly threatening unlawful violence against others, such as cross burning by the Klu Klux Klan or threatening violence against someone on-line.

7. Copyright infringement. Unless an exception applies (notably, “fair use”), people are not free to post content that is created by others that is protected by copyright laws.

8. Prohibited Disclosure. There are numerous valid enforceable laws prohibiting disclosure of various information, including classified government documents, medical records, identity of victims in certain cases, embarrassing private information of non-public figures, and attorney-client privileged information.

9. Fraud. There are numerous valid laws criminalizing fraudulent statements of numerous kinds, generally defined as false statements aimed at making others detrimentally rely on it. These laws encompass, for example, outright fraud to steal money, false advertising, perjury, falsely yelling “fire” in a crowded theater, and misrepresentation in contacts

10. Foreign Countries. Oh, by the way, most countries do not have any concept of freedom of speech, and many countries have laws banning all kinds of speech that is permitted in the U.S., and social networks need to comply with them.

So it is time to reign in the notion that too many people have that they can say and post whatever they want with impunity under the rubric of free speech. It just ain’t so.