How the First Amendment Protects Your Right to Be a Jerk




Is it just me or could they be twins?

While the First Amendment goes much further than many international laws in protecting speech, there are certain classes of speech that are unprotected or much less protected. For example, the government can punish speech if it is directed at causing, and likely to incite, imminent illegal activity. Just ask this guy in California, who was sentenced to 7 years in prison for posting “dead or alive” signs threatening his daughter’s boyfriend — not ironically — because the signs appeared to be soliciting murder. The other obvious case is child pornography. Although film and photography are generally consider classes of speech that are subject to First Amendment protection, child pornography is strictly regulated — although, controversially, the Supreme Court has ruled that simulated child pornography (i.e., pornography which does not use actual minors) is protected by the First Amendment). And of course, “obscenity” may be strictly regulated by government authorities, although the (unofficial) standard of “I know it when I see it” is so nebulous as to make these laws used somewhat sparingly, in practice.

But what about racist, homophobic, anti-Semitic, or other so-called “hate speech?” If the United States had the same laws as France, Michael Richards and Mel Gibson would probably be charged with the same crime that Galliano currently faces jail time. Likewise, the entire congregation of the Westboro Baptist Church would probably be in jail. But in this country, being an ignorant jerk or generally pissing people off just isn’t grounds for arrest. Instead, the U.S. Supreme Court recently ruled that the Church is protected by the First Amendment and cannot be held liable for intentional infliction of emotional distress for protesting outside the funeral of a Marine who died during the Iraq War.

San Francisco’s answer to the Westboro Baptist Church

Defamation is also not protected by the First Amendment, but the Constitution does help shape the limits of defamation liability. Public figures who sue for defamation have to prove both that the statements made about them were false, and that they were made with “actual malice” (a fancy way of saying the speaker knew they were false and purposely published them because they’re a mean jerkface). This actual malice standard is pretty much the one thing standing between tabloid magazines and a future of endless, ruinous litigation.

Even more importantly, in the United States, defamation only gives rise to a civil cause of action — that is, a lawsuit by the aggrieved individual, for damages or injunctive relief. In France (as well as other European countries), however, defamation can carry criminal as well as civil penalties. So I guess that means that America’s mean-and-wealthy elite can defame all they want, without fear of prosecution, as long as they’re willing to pay for it in civil court. If that isn’t freedom, I don’t know what is.

These types of legal issues go back hundreds of years in the United States. But they remain incredibly relevant today. In the digital world, where anonymity is king, the First Amendment is (for better or worse) more important than ever in protecting people’s right to spill their every thought on the Web without fear of reprisal. For example, while Yelp reviews and blog posts can make or break a business — even if, as a reader, it is nearly impossible to verify whether they are true — the First Amendment protects the rights of Yelpers to earn their super-reviewerstatus by writing whatever they want. You can imagine the jealousy of this Taiwanese food blogger, who is serving a 30-day jail sentence after a court determined that she defamed a restaurant by deeming its food “too salty” on the basis of one dish on one visit. (Note to self: never write a blog post in Taiwan, ever.)





One Response to “How the First Amendment Protects Your Right to Be a Jerk”

  1. Lisa I love you writing style! If only you posted more often :-)

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