First Amendment:

Silencing & Censorship

By Michael Yoder, Esq. │ Updated February 23, 2021

What are Whistleblowers Protections and How Does the Process Work? 

A whistleblower is someone who discovers illegal activity that is damaging to the federal government or its agencies. Whistleblowers can be, but are not limited to:

  • Section 230 Immunity

  • Free Speech & Censorship

  • Religious Freedom

  • Advertising / Trade Practices

  • Defamation / Anti-SLAPP

  • Fair Use

  • Protestor Rights

  • Anonymous Speech

  • Libel / Slander

What is the First Amendment?

The full text of the First Amendment to the Bill of Rights, reads:

Congress 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. 

The “First“ Amendment was actually the “Third Amendment“ to the original draft Constitution, but the first two amendments were not adopted, thus creating our bedrock “First Amendment“ to the U.S. Constitution, and the beginning of the Bill of Rights. Essentially, the First Amendment guarantees a variety of civil liberties and restricts the government from interfering with freedom of speech, the free exercise of religion, the right to associate with each other, the right of privacy, the freedom to assemble, the right to petition the government for redress of grievances, and further guarantees the separation of church and state.

The courts have interpreted, and in some cases, limited, these freedoms in certain circumstances. For example, there is no mention of the right of privacy or the separation of church and state in the Bill of Rights, however the Supreme Court has recognized the existence of these fundamental rights, as part of what was intended by the framers of the Constitution. Notably, the First Amendment only pertains to actions of the government; whether federal, state, or local. In other words, private corporations or individuals can – and often do – engage in activity that would otherwise violate First Amendment freedoms, without repercussion.

Is All Speech Protected?

The short answer is "no." Only speech that is infringed upon by the government is protected under the First Amendment. However, all speech – and expressive conduct – is presumed to be constitutionally-protected unless it falls into one of the following categories: (a) defamation (false statements of fact published to third parties); (b) child pornography; (c) obscenity; (d) information damaging to national security interests; (e) true threats / fighting words; and, (f) incitement to violence.

  1. Defamation

  2. Child pornography

  3. Obscenity

  4. Information damaging to national security

  5. True threats / fighting words

  6. Incitements of violence

The courts have concluded that the above-referenced categories of speech fall outside the ambit of constitutionally-protected expression, and therefore enjoy no First Amendment privileges. Certain other speech-related activity can also be restricted or criminalized, such as the advertising of illegal transactions, solicitation or conspiracy to commit crimes, and threats of bodily harm such as assault.

The government can restrict the time, place, and manner of certain speech so long as the restriction is supported by a legitimate governmental interest. Publication of speech owned by others can be restricted to protect intellectual property rights. The government can also speak, and its speech is not subject to a First Amendment analysis.

Speech need not take the form of written, audio or visual media. Many expressive acts are protected by the First Amendment if they are intended to convey a message. For example, the act of burning the American flag, or dancing in the nude, are both covered by the First Amendment as expressive activities.

Can My Employer Fire Me For Things I Say Online?

The First Amendment applies only to government employers, not to private employers. For example, teachers at public schools enjoy First Amendment rights regarding their employment activity, while teachers at private schools do not. Government employers are prohibited from terminating employees as a result of their speech on matters of public concern, unless the speech interferes with their job efficiency. Speech relating to matters that do not fall within the definition of ‘public concern‘ may be used as a basis to terminate employees, even if the speech occurs on the employee‘s free time.

Can Websites Censor Things I Say Online?

We are often asked this question from potential clients who have had their online messages or postings removed by forums, message boards, or social media sites. However, as noted above, the First Amendment only applies to government actors, and not to private website operators. Therefore, assuming the website platform is acting on its own, and not at the request or on the behalf of some state or federal government authority, no First Amendment right is violated. A customer’s relationship with a website is usually governed by a set of “Terms and Conditions” that are agreed to during the registration or access process. Those Terms and Conditions often identify the grounds for removal of communications or termination of the customer’s account. Such user Terms and Conditions typically provide wide discretion for the website operator and are usually enforced by the courts.

Is Hate Speech Illegal? 

No, there is no “hate speech” exception to the First Amendment. While certain crimes can be punished more harshly if hate toward certain groups is a motivating factor in committing the offense, the government cannot legally ban speech that is hateful, racist, or vile. Many large online platform providers will censor speech they believe to be hateful or offensive. However, private companies can make their own decisions on moderation of third party content without violating the First Amendment.