An Idiot's Guide to Free Speech

Bros/MRAs/bigots/internet commenters/the population at large: We don’t think “free speech” means what you think it means.

University of Michigan’s Pi Kappa Alpha brothers celebrated America over the weekend (as you do) by taking half-naked photos of themselves wrapped in an American Flag. The invitation circulated around campus and then around the internet, because who can resist frat bros + trying-too-hard-to-be-scandalous party invites? (Sample quote: “America is a place where drinking until you puke means drinking until you win. America invented the blunt. And LSD.”)

In response to the media attention, a PIKE brother emailed to tell us that their chapter had been suspended and asking us for “something between support and advice; whether to succumb to the PR whores and try to make peace, or defend the fact that we violated no University of Michigan standards nor any standards as defined by Pi Kappa Alpha..Please help us support our right to the freedom of expression.”

His well-intentioned response reminded us of a post we’ve wanted to write for a while: a simplified guide to freedom of speech.

Define “freedom of speech” for me, please.

So glad you asked! When people talk about their constitutional right to free speech, they are (at least vaguely) referring to the First Amendment, which states:

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.

But what does that meeeeean??

As an American, you have the right to say most anything you want to say without being penalized by the government. As long as you’re not inciting crime, spewing out “fighting words” (srsly), making true threats, or sharing obscenity as defined by the Miller test/child porn, you’re pretty much good to go. Hate speech is protected pretty strongly here in the U.S. — the landmark SCOTUS Whitney v. California decision determined that “to justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced” and “there must be reasonable ground to believe that the danger apprehended is imminent.” — so congrats, you can call some random person a “Nazi cunt” on Twitter.

What does that not mean?

The First Amendment does not protect you from:

Criticism: If you’re a comedian who makes a bad rape joke, people are allowed to point out that you’re not funny as well as an asshole.
Shame: If you tweet something racist about President Obama on your public Twitter account that’s connected to your first and last name, people are allowed to say that is bad.
The Right to Anonymity: If you take creepy photos of women without their consent and post them on Reddit, people are allowed to try and figure out who you are and post your information on the internet. No one is entitled to anonymity. It’s up to you whether to make it easy for people to find you.
Mockery: Hi, PIKE brothers. Did you deserve to be mocked for your cheesy PG-13 photos? It doesn’t matter. You put yourselves out there, which means your peers (and news outlets) have the right to LOL and comment.
Consequences: If you publicly express yourself in a manner that is offensive, hurtful, or just plain dumb, strangers might contact your friends/family/school/employer and tell them what you did. That is not infringing on your right to free speech; it’s pointing out how you choose to exercise that right. Like the rest of the federal constitution, the First Amendment protects us from the government, not from private companies, which may be able to fire or otherwise punish you for stuff you say, even if it’s outside of work. The laws protecting the free speech of private employees vary from state to state, aside from specifically protected speech like labor organizing. Here are some guidelines for public employees and students.

Wahh, still confused!

According to Whitney v. California, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Basically, speech combats speech: everyone gets to say stuff, but with that freedom comes the relevant repercussions. Which means that if you’re thinking of putting yourself out there — strategically-located American flag or not — it’s probably more important to know the rights you don’t have than the ones you do.