The First Amendment's guarantee of free speech is worded as an absolute, there are no exceptions in the text.
However, no functioning society could allow unlimited free speech. There are many exceptions to the First Amendment – fraud, perjury, defamation, death threats, "shouting fire in a crowded theatre", speech in violation of privacy or duties of confidentiality, etc.
I don't think the original authors of the First Amendment meant it to be unlimited. They didn't intend it to legalise fraud or perjury or defamation.
But, given they didn't leave any guidance in the text as to which exceptions are valid and which are not, it is basically up to SCOTUS to decide. And which exceptions SCOTUS accepts as valid change as the moods of its majority changes – and will likely continue to change in the future.
The equivalent provision in the European Convention on Human Rights is Article 10, which says: "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
I think that's better than the First Amendment in that it acknowledges in the text the reality that exceptions are necessary, and makes some attempt to outline what the exceptions are. However, there is still a lot of room for interpretation by the European Court of Human Rights as to the proper scope of all those exceptions, especially regarding what is "necessary in a democratic society" and what isn't. Few would claim the Court always gets it right. But, at least, the European Court of Human Rights is arguably a far less politicised institution that the US Supreme Court.
This would imply there are interpretations where it isn't allowed even in the cases of the worst most extreme content. Does any organization/group advocate such an interpretation? As far as I'm aware all groups either support an interpretation that allows the government to censor some speech or supports considering some speech as not counting as speech so it can be censored without censoring speech (using sophistry to hide censorship of speech).
There's nothing intrinsically superior to either SCOTUS or any group or organization's interpretation.
I'm pretty sure you are able to interpret it as not allowing even in the worst and most extreme cases, you just don't want to. There's no need for an argument from authority.
> This would imply there are interpretations where it isn't allowed even in the cases of the worst most extreme content.
That would be the interpretation where someone actually reads the text of the Constitution instead of making up exceptions out of whole cloth.
> Does any organization/group advocate such an interpretation?
Yes, obviously. The Libertarian Party is one example:
>> … we oppose all attempts by government to abridge the freedom of speech and press, as well as government censorship in any form …[1]
>> We support full freedom of expression and oppose government censorship, regulation, or control of communications media and technology.[1]
Direct threats of harm are still actionable, of course. In that situation you aren't punishing the speaker for what they said but rather defending yourself in response to a reasonable expectation of imminent and irreversible harm. The speech is merely evidence of intent.
skissane|5 years ago
However, no functioning society could allow unlimited free speech. There are many exceptions to the First Amendment – fraud, perjury, defamation, death threats, "shouting fire in a crowded theatre", speech in violation of privacy or duties of confidentiality, etc.
I don't think the original authors of the First Amendment meant it to be unlimited. They didn't intend it to legalise fraud or perjury or defamation.
But, given they didn't leave any guidance in the text as to which exceptions are valid and which are not, it is basically up to SCOTUS to decide. And which exceptions SCOTUS accepts as valid change as the moods of its majority changes – and will likely continue to change in the future.
The equivalent provision in the European Convention on Human Rights is Article 10, which says: "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
I think that's better than the First Amendment in that it acknowledges in the text the reality that exceptions are necessary, and makes some attempt to outline what the exceptions are. However, there is still a lot of room for interpretation by the European Court of Human Rights as to the proper scope of all those exceptions, especially regarding what is "necessary in a democratic society" and what isn't. Few would claim the Court always gets it right. But, at least, the European Court of Human Rights is arguably a far less politicised institution that the US Supreme Court.
stale2002|5 years ago
Even the line that you quoted demonstrates this when it says things like "for the protection of morals".
I really do not want the government infringing on speech rights, due to something as overly broad as "morals".
SkyBelow|5 years ago
This would imply there are interpretations where it isn't allowed even in the cases of the worst most extreme content. Does any organization/group advocate such an interpretation? As far as I'm aware all groups either support an interpretation that allows the government to censor some speech or supports considering some speech as not counting as speech so it can be censored without censoring speech (using sophistry to hide censorship of speech).
felipeko|5 years ago
I'm pretty sure you are able to interpret it as not allowing even in the worst and most extreme cases, you just don't want to. There's no need for an argument from authority.
nybble41|5 years ago
That would be the interpretation where someone actually reads the text of the Constitution instead of making up exceptions out of whole cloth.
> Does any organization/group advocate such an interpretation?
Yes, obviously. The Libertarian Party is one example:
>> … we oppose all attempts by government to abridge the freedom of speech and press, as well as government censorship in any form …[1]
>> We support full freedom of expression and oppose government censorship, regulation, or control of communications media and technology.[1]
Direct threats of harm are still actionable, of course. In that situation you aren't punishing the speaker for what they said but rather defending yourself in response to a reasonable expectation of imminent and irreversible harm. The speech is merely evidence of intent.
[1] https://www.lp.org/platform/