Author: Seaver Chester
Often when debating interpretations of political rights, people discuss original intent.
“What did the Founders mean?” is frequently asked concerning free speech or other political
rights. Below is an excerpt from the First Amendment on free speech:
“Congress shall make no law…abridging the freedom of speech…or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.”
The vagueness of these statements is striking. The federal Congress is forbidden from
making laws restricting freedom of speech. Does the same apply to other branches of the federal
government? What about state and local governments or private entities?
The most important question left unanswered by the First Ammendment is what speech
is. Without defining speech, what rights is it even protecting? Interpretation and reinterpretation
of rights are needed because the past and present lack definitive answers. This essay offers a
partial solution by defining speech, analyzing its current restrictions, and concluding how it is
best protected.
Before examining free speech in the United States, it is first necessary to define what
speech is in general. Here, speech is defined as any variety of communication. Speech may be
categorized by its content into common, social, and political speech. Common speech is the
everyday interaction between individuals and is the majority of speech. Social speech concerns
how society should function and comments on what the government does. Political speech
addresses the function of government, not its effects.
From these distinctions follow certain general conclusions. Common speech is the least
regulated type in the United States because it affects neither the government nor society. Social
and political speech are more regulated since they may disrupt society or its leaders. Therefore,
free speech mainly concerns social and political speech since common speech rarely needs
protection. This narrows the focus of inquiry to just these two categories.
It is tempting to conclude that political speech is more regulated than social speech, but it
appears the opposite is true. This will become clear after examining restrictions on libraries and
social media, two common means of public expression and discourse.
Consider this 2023 list from the American Library Association (ALA) of the most
challenged books in school and public libraries across the United States:
- Gender Queer: A Memoir
- All Boys Aren’t Blue
- This Book is Gay
- The Perks of Being a Wallflower
- Flamer
A book is defined as challenged by the ALA when it receives one or more complaints,
but it may or may not be removed. There are five more entries from the ALA’s list but this gives
a general idea of the most restricted books in the United States. Each of them was challenged for
various reasons, but mostly for some combination of sexually explicit and LGBTQ+ content.
These books are all examples of social speech since they address and concern society in general,
not the function of government, and the complaints these books received originated from the
public. Politicians may respond to social speech by enacting legislation, but as long as speech
concerns society and its members, it remains social speech.
Social media censorship is more difficult to analyze since it involves private corporations
rather than public institutions like libraries. Statistics like the number of accounts banned in 2023
or the primary cause of bans are not publicly available. However, considering Hate Speech and
Misinformation policies is a good first step since they are at the heart of public controversy
concerning social media and free speech. Below is an excerpt from Meta’s policies on Hate
Speech and Misinformation, respectively:
“We define hate speech as direct attacks against people — rather than concepts or
institutions— on the basis of what we call protected characteristics (PCs): race, ethnicity,
national origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity, and
serious disease.”
“We remove misinformation where it is likely to directly contribute to the risk of imminent
physical harm. We also remove content that is likely to directly contribute to interference with the
functioning of political processes and certain highly deceptive manipulated media.”
Meta is the largest social media company in the United States. Meta may or may not
follow its policies but for now, assume they do.
Meta’s Hate Speech policy excludes attacks on concepts or institutions. Therefore, since a
government is an institution political speech is generally uncensored. When protected
characteristics of a government official are attacked, it is the manner of speech Meta censors, not
its political content. Profanity, slurs, and other obscenities are social speech, not political speech,
so Meta’s Hate Speech policy concerns mainly social speech.
Meta’s Misinformation policy censors information believed to “contribute to the risk of
imminent physical harm.” This statement again refers primarily to society, not its government.
However, removing content “interfer[ing] with the function of political practices,” is censoring
political speech. Silencing direct challenges to the function of government, not its effects, is the
first example of political censorship in these case studies. The rest are all social.
Meta’s policies could theoretically regulate political speech under the pretense of social
speech. However, it is reasonable to assume Meta follows their guidelines more often than they
do not. Otherwise, their policy would reveal itself as fraud. Banning too many accounts for
unfair reasons would eventually draw attention and could spark a lawsuit against the company.
Therefore, Meta’s Hate Speech and Misinformation policies predominantly concern social
speech and leave political speech mostly uncensored.
After examining two major sources of public discourse and their restrictions, it is
reasonable to conclude social speech is the most regulated form of expression in the United
States. This makes sense considering that in a democracy, especially a capitalist democracy, the
public is the driving force. They control a large portion of the behavior of corporations and
government through their wallets and the ballot box. Since free speech rests primarily in public
hands, the public is its best guardian. Rather than calling on the government or corporations to
silence opposing viewpoints, the public must respect them to preserve free speech.